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Declarations - Indigenous. Shot Both Sides v. Canada
In Shot Both Sides v. Canada (SCC, 2024) the Supreme Court of Canada considered an indigenous lawsuit where the plaintiff's claimed that they had been historically granted inadequate land in a treaty.
Here the court considers the utility and availability of declaration remedies in the indigenous context, made all the more important due to the widespread expiration of limitation periods on other claim remedies (typically actions):D. The Availability and Scope of Declaratory Relief
[62] In its action, the Blood Tribe seeks declaratory relief. At trial, the Blood Tribe sought, among other claims, a declaration that the Crown breached the TLE (C.A. reasons, at paras. 3 and 31). The Crown has subsequently conceded it breached its treaty obligation with respect to the Blood Tribe’s land entitlement (R.F., at para. 2). At the hearing of this appeal, the Crown conceded that declaratory relief may be appropriate and could assist with reconciliation efforts with the Blood Tribe (transcript, at pp. 111-16).
[63] The law of limitations set out above does not preclude a declaration in this matter. Although claims for personal relief or damages flowing from treaty breaches may be subject to limitations statutes, limitations legislation cannot bar courts from issuing declarations on the constitutionality of the Crown’s conduct. (Manitoba Metis, at paras. 135, 137, 139 and 143). At issue here is a constitutionally protected treaty right and the honour of the Crown, itself a constitutional principle (para. 136). This Court has recognized that declarations can be obtained to assist with extra-judicial negotiations with the Crown even where personal relief may be statute-barred as discussed below (para. 137).
[64] Declaratory relief is warranted in this appeal. This Court has the authority to grant the judgment that the courts below should have ordered (Supreme Court Act, R.S.C. 1985, c. S-26, s. 45). The courts below had the authority to provide the declaratory relief sought by the Blood Tribe (Federal Courts Rules, SOR/98-106, r. 64; Federal Courts Act, at ss. 2(1), 17(1), 52(b)(i)). This section analyzes the nature of declaratory relief, identifies its value in breach of treaty cases, and explains why it is warranted in the circumstances of this appeal.
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(2) The Value of Declaratory Relief in Breach of Treaty Cases
[70] Declaratory relief takes on a “unique tenor” in the context of Aboriginal and treaty rights because it is a means by which a court can promote reconciliation to restore the nation-to-nation relationship (the Hon. M. Rowe and D. Shnier, “The Limits of the Declaratory Judgment” (2022), 67 McGill L.J. 295, at pp. 314 and 318). It relies in part on the government acknowledging the declaration promptly and acting honourably in determining the means for advancing reconciliation (J. Teillet, “A Tale of Two Agreements: Implementing Section 52(1) Remedies for the Violation of Métis Harvesting Rights”, in M. Morellato, ed., Aboriginal Law Since Delgamuukw (2009), 333, at pp. 340-41). That this assumption can be difficult in breach of treaty cases, as reconciliation efforts often follow decades of dishonourable Crown conduct and adversarial litigation, does not diminish the possible salutary effect of declarations.
[71] The reconciliation process differs from the conflict driven, adversarial litigation process that is often antithetical to meaningful and lasting reconciliation. As the Court noted in Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, [2017] 1 S.C.R. 1069, at para. 24, “[t]rue reconciliation is rarely, if ever, achieved in courtrooms.” The Court has repeatedly emphasized the importance of reconciliation between Indigenous peoples and the Crown outside of the courts (see, e.g., C-92 Reference, at para. 77; Desautel, at para. 87; Haida Nation, at para. 20; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at para. 47).
[72] Reconciliation can be fostered by declaratory relief. The non-coercive nature of declaratory relief can help “the parties to the dispute to resolve the issues without an excessively hostile or adversarial approach” and can help to restore the honour of the Crown (Sarna, at p. 178). Academic commentary has recognized that this approach “is especially appropriate given the non-adversarial, trust-like relationship Canadian governments are supposed to have with Aboriginal people” (K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at § 15:31). Avoiding expensive, lengthy, and adversarial litigation is an important step for reaching reconciliation-oriented results where Aboriginal and treaty rights are at issue.
[73] In Aboriginal and treaty rights claims, declaratory relief can assist in providing a clear statement on the legal rights of Indigenous parties, the duties placed on the Crown, and the Crown’s conduct in relation to those sacred promises. Clarity on these rights, duties, and conduct can help to uphold the honour of the Crown, guide the parties in the reconciliation process mandated by s. 35(1) of the Constitution Act, 1982, and assist with efforts to restore the nation-to-nation relationship.
[74] Declarations in the context of breach of treaty claims can serve a corrective function by authoritatively demonstrating that the Crown has infringed the Indigenous party’s rights (Zakrzewski, at p. 159). A clear statement setting out the Crown’s infringement of an Indigenous party’s rights may spur reconciliation efforts between the parties to address the wrongs suffered. Declaratory relief is not meant to represent the end of the reconciliation process for the Crown’s breach of Treaty No. 7: it merely helps set the stage for further efforts at restoring the nation-to-nation relationship and the honour of the Crown.
(3) Declaratory Relief Is Warranted for the Blood Tribe
[75] Canada breached its treaty promises to the Blood Tribe. Canada did not provide the land as promised: 162.5 fewer square miles were set aside than should have been. In 1883, the Lieutenant Governor of the North-West Territories instructed the surveyor to change the boundaries of the Reserve contrary to Canada’s treaty commitments. Crown representatives subsequently made false representations to the Blood Tribe that the TLE was fulfilled including in an 1888 letter stating that the Reserve “contained far more than [the Blood Tribe] were entitled to” (trial reasons, at para. 459). The discrepancy was never remedied or acknowledged and it was only through the efforts of a Blackfoot researcher from 1969 to 1971 that the extent of the Crown’s misconduct in relation to the TLE became known. This conduct is deplorable and does not reflect the fundamental objective of the modern law of treaty rights, which is the reconciliation of Indigenous and non-Indigenous peoples and their respective claims, interests, and ambitions (Mikisew Cree First Nation, at para. 1). In oral submissions before this Court, the Crown acknowledged that its breach of the Treaty was “very serious”, “dishonourable”, and even “unconscionable” (transcript, at pp. 95-96).
[76] Treaty promises were intended to be honoured so long as the sun rises and river flows. They are “vital, living instruments of relationship” and the Crown is assumed to intend to fulfill these integral promises (Report of the Royal Commission on Aboriginal Peoples, vol. 1, at p. 128; Badger, at para. 41; Manitoba Metis, at para. 79; Haida Nation, at paras. 19-20). By disregarding its commitments in Treaty No. 7, Canada failed to uphold and appreciate the sacred nature of its promises.
[77] Several considerations support the exercise of discretion to grant declaratory relief with that context in mind. Prior authorities of this Court have set out the criteria that establish whether a declaration may be warranted (see, e.g., S.A., at para. 60; Ewert, at para. 81). Those criteria are satisfied here, and the particulars of the appeal before us further support the exercise of discretion by this Court to award declaratory relief. There is no dispute that this Court has jurisdiction to hear the issue or that the Blood Tribe has a genuine interest in resolving the issue. The analysis below is thus limited to whether there is practical utility in granting a declaration and whether the Crown has an interest in opposing the declaration (S.A., at para. 60; Ewert, at para. 81).
[78] A declaration in this context will have a practical effect. The Crown’s dishonourable breach of Treaty No. 7 is ongoing and the fractured relationship between the Crown and the Blood Tribe should be resolved through continued reconciliation efforts. This is not a situation where a declaration would be devoid of tangible or concrete use or could be viewed as “fictitious or academic” (Solosky, at p. 831). The declaration will be relied on to outline the Crown’s past dishonourable conduct in relation to Treaty No. 7. Declaratory relief may also serve a corrective function in these circumstances as it authoritatively demonstrates that Canada breached the Blood Tribe’s treaty rights, which can help to advance reconciliation. Any uncertainty over whether reconciliation efforts will be successful for strengthening the nation-to-nation relationship does not diminish the practical utility of the declaration (West Moberly, at paras. 321-24 and 331).
[79] The declaration sets out the Crown’s conduct and guides the parties towards the reconciliation process. The rights of the Blood Tribe are guaranteed by Treaty No. 7 itself and constitutionally recognized and affirmed by s. 35(1) of the Constitution Act, 1982. Further, declaratory relief of this nature aligns with and advances the constitutional imperative of reconciliation. A declaration in this context is not a statement of “[d]etached facts” or “general pronouncements of law” (West Moberly, at paras. 312 and 336; see, e.g., Yahey v. British Columbia, 2021 BCSC 1287, 43 C.E.L.R. (4th) 1, at paras. 1876-77 and 1884; 1472292 Ontario Inc. (Rosen Express) v. Northbridge General Insurance Company, 2019 ONCA 753, 96 C.C.L.I. (5th) 1, at paras. 30-31).
[80] The dispute between the Crown and the Blood Tribe is real and not academic. The Crown has opposed the declaration being sought by the Blood Tribe at almost every stage of this litigation. The dispute is grounded in an extensive and contested factual matrix regarding the Crown’s commitments under Treaty No. 7 and the size of the TLE. The Crown contested that it breached its obligations under Treaty No. 7 when the action was commenced in 1980. This issue remained in dispute for decades, resulting in a lengthy and complex trial before the Federal Court and a holding that Canada breached its treaty commitments. Declaratory relief was sought by the Blood Tribe in its statement of claim to resolve the live conflict on this issue through legal action (C.A. reasons, at para. 3).
[81] Before this Court, the Crown concedes its breach of the TLE and that a declaration may be an appropriate remedy. Accordingly, it could be said the Crown no longer has an interest in opposing the declaration sought with respect to the final criteria for declaratory relief. However, enabling this belated concession to foreclose the possibility of declaratory relief would privilege form over substance with respect to the nature of the “real” dispute before us, and would overlook the protracted nature of the dispute that led the parties to this point. As such, I am not persuaded that this concession, at the eleventh hour of this litigation and in the context of the Crown’s vigorous opposition to any relief in these proceedings, should now prevent this Court from issuing a declaration.
[82] Ultimately, a declaration is a discretionary remedy that must be considered within the unique context of the legal dispute at issue. The considerations analyzed above support the issuance of declaratory relief in these circumstances. These considerations must be assessed through the lens of decades of disagreement between the parties on the scope of the treaty promises owed to the Blood Tribe that culminated in extensive litigation. The Blood Tribe and the Crown have been involved in a contentious and adversarial litigation process culminating in an appeal to this Court, not an “academic”, “hypothetical”, or “theoretical” dispute (Solosky, at pp. 832-33; S.A., at para. 60). Declaratory relief will serve an important role in clarifying the Blood Tribe’s TLE, identifying the Crown’s dishonourable conduct, assisting future reconciliation efforts, and helping to restore the honour of the Crown.
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