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Indigenous - Blood Tribe (Alberta). 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 sets out a partial legal and event history of the Canada-Blood Tribe relationship:II. Facts
[6] The historical context for this appeal is extensive. The Federal Court and the Federal Court of Appeal provided a comprehensive overview of this history and the evidence adduced by the parties (see, e.g., trial reasons, at paras. 56-219; 2022 FCA 20, 468 D.L.R. (4th) 98, at paras. 20-36). The trial judge’s factual findings based on that evidence were not challenged on appeal. Although this Court is seized with a discrete question of law, a concise summary of the historical background that provides an understanding of the relationship between the Crown and the Blood Tribe is essential to engaging with the parties’ arguments and appreciating the context for this claim.
A. The Blood Tribe and Blood Tribe Reserve No. 148
[7] The Blood Tribe are a member tribe of the Blackfoot Confederacy of First Nations. The Confederacy was comprised of three tribes: the Blood Tribe, Siksika (Blackfoot), and Piikani (Peigan).
[8] The Reserve is the home of the Blood Tribe. Located in southern Alberta, the Reserve is the largest reserve in Canada and occupies an area of 547.5 square miles. The Reserve was established by Treaty No. 7, which was made on September 22, 1877, between the Crown and the Confederacy.
B. Treaty No. 7 and the Creation of Blood Tribe Reserve No. 148
[9] Treaty No. 7 promised a reserve to each tribe of the Confederacy. The Reserve’s location was set out in Treaty No. 7, but was later changed by a separate agreement between the Blood Tribe and the Crown. The Blood Tribe has long claimed that the Reserve did not accord with the promises set out in Treaty No. 7.
[10] The size of the Reserve, the TLE, was meant to correspond to a formula. The formula promised “one square mile for each family of five persons, or in that proportion for larger and smaller families”.
C. Locating and Surveying Blood Tribe Reserve No. 148
[11] Surveyors set the boundaries of the Reserve in 1882, five years after the execution of Treaty No. 7. The initial survey described the Reserve as an area of roughly 650 square miles in south-western Alberta. The Canadian government also granted two grazing leases to third parties on lands south of the Reserve in 1882. The northern boundaries of the grazing leases overlapped the surveyed Reserve.
[12] Canadian officials quickly recognized the overlapping boundaries and asked the Blood Tribe to agree to a new boundary. A second survey in 1883 led to a new agreement that defined the Reserve’s southern boundary by a latitudinal description north of the grazing leases’ boundaries. The boundary change reduced the size of the Reserve from 650 square miles to its current size of 547.5 square miles.
[13] Blood Tribe members expressed concern over the size of the Reserve in 1888 and identified that it was not as large as they expected when they signed Treaty No. 7. They also expressed uncertainty with the precise location of the southern boundary. As a result, members of the Blood Tribe were shown the location of the new boundary for the first time in 1888. The surveyor recorded that the Blood Tribe’s Chief “was asked if he was satisfied, and he answered in the affirmative” (C.A. reasons, at para. 25).
[14] Concerns over the size of the Reserve arose again in 1969, nearly a century after the second survey. On November 4, 1969, a Blackfoot researcher presented the Blood Tribe with a report on the 1882 and 1883 surveys. This report detailed the reduction in the Reserve’s size. The researcher travelled to Ottawa in August 1971 to gather information on the total number of people in the Blood Tribe for the years 1879 to 1884. Based on this information, the researcher confirmed that the existing boundaries did not match the boundaries owed pursuant to the TLE formula.
D. Negotiations and Initial Legal Action
[15] The Blood Tribe formally sought to negotiate with the Minister of Indian Affairs and Northern Development (now the Minister of Crown-Indigenous Relations) on February 27, 1976. The Blood Tribe made two claims related to the Reserve: (i) the TLE had not been correctly assigned, and (ii) they were entitled to a broader area (“Big Claim”). The Minister rejected both claims on June 20, 1978.
[16] After the unsuccessful negotiations, the Blood Tribe commenced an action in the Federal Court on January 10, 1980. The statement of claim alleged breaches of the Crown’s fiduciary duty arising from the second survey, fraudulent concealment, and negligence. The Blood Tribe sought a declaration and damages for breach of contract arising from the failure to fulfill the TLE according to the prescribed formula. The claim was amended on February 24, 1999 to include, among other changes, that the Blood Tribe had constitutionally protected treaty rights pursuant to s. 35(1) of the Constitution Act, 1982.
[17] The Federal Court action was put into abeyance pending an assessment under the Specific Claims Policy of the Department of Indian Affairs and Northern Development. Due to the “glacial” pace of this process, the Blood Tribe moved to reactivate its Federal Court action on August 7, 1996 (C.A. reasons, at para. 32).
[18] The TLE claim was rejected under the Specific Claims Policy in November 2003 on the basis that Canada had no outstanding legal obligation. The Indian Claims Commission conducted an inquiry into the claims and, on March 30, 2007, made two recommendations: (i) that the Big Claim not be accepted, and (ii) that a surrender was required because the 1883 boundary change removed land from the Reserve. The Commission recommended that the Minister of Indian Affairs and Northern Development negotiate a resolution.
[19] The reactivated Federal Court action was divided into three phases. Phase I was heard in May 2016 for the purpose of receiving oral history evidence from members of the Blood Tribe. Phase II, dealing with liability, fact, and expert witness evidence, was held in 2018. Phase III has not been heard and was to address remedies.
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