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Indigenous - Treaties. 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 'treaty' in Canadian indigenous law:[1] Treaties between the Crown and Indigenous peoples are fundamental to Canada’s history and constitutional landscape. The promises and obligations enshrined in these fundamental agreements reflect a lasting commitment to maintaining a just relationship between the Crown and Indigenous peoples and were intended to be honoured by the Crown “so long as the sun rises and the river flows” (Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the Relationship (1996), at pp. 18-19, citing R. v. Secretary of State for Foreign and Commonwealth Affairs, [1982] 2 All E.R. 118 (C.A.), at p. 124, per Lord Denning). . 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, as a prelude to considering the effect of the passage of s.35 ['Recognition of existing aboriginal and treaty rights'] of the Constitution on the running of limitation periods, the court considers the 'actionability' of indigenous treaty rights through the Canadian civil litigation system:B. Was a Breach of the TLE Actionable in Canadian Courts Prior to the Coming Into Force of Section 35(1) of the Constitution Act, 1982?
[36] Assessing whether a breach of Treaty No. 7 was actionable prior to 1982 requires an analysis of two issues: (i) the enforceability of Treaty No. 7 at common law, and (ii) the impact, if any, of the coming into force of s. 35(1) of the Constitution Act, 1982. If treaty rights were enforceable and actionable prior to 1982, then the limitation period applicable to the Blood Tribe’s claim began to run when the claim was discoverable, more than 10 years before the coming into force of s. 35(1).
(1) The Enforceability of Treaty No. 7 at Common Law
[37] Treaties are enforceable from the date of execution. While the terminology surrounding the enforceability of treaties may have changed over time, claims seeking to give legal effect to treaty terms were brought before the coming into force of the Constitution Act, 1982. Long before 1982, courts recognized that treaties were not merely political promises and created enforceable obligations, including “contractual rights” (see, e.g., R. v. White (1964), 1964 CanLII 452 (BC CA), 50 D.L.R. (2d) 613 (B.C.C.A.), at p. 618, aff’d (1965), 1965 CanLII 643 (SCC), 52 D.L.R. (2d) 481 (S.C.C.); J. Promislow, “Treaties in History and Law” (2014), 47 U.B.C. L. Rev. 1085, at pp. 1147-48). The Blood Tribe’s approach to this litigation reflects the enforceability of treaties prior to 1982 since their claim was framed as a breach of contract and was brought in 1980.
[38] The enforceability of treaties from the date of execution is well established in this Court’s caselaw without reference to s. 35(1). For example, this Court in R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, stated at para. 76: “Treaties are analogous to contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties” (emphasis added). Similarly, this Court identified in Sioui, at p. 1044, that “what characterizes a treaty is the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity” (emphasis added). Sioui built on Simon, where this Court emphasized that the agreement at issue was a treaty because it was “an enforceable obligation between the Indians and the white man” (p. 410).
[39] The enforceability of treaties from the date of execution is supported by the fundamental nature of the promises they enshrine. Courts, legislatures, and academic commentators have consistently acknowledged this significance: “treaties represent an Indian Magna Carta” (H. Cardinal, The Unjust Society: The Tragedy of Canada’s Indians (1969), at p. 28); “treaties are vital, living instruments of relationship” (Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back (1996), at p. 128); and “a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred” (Badger, at para. 41). In addition, the Crown is assumed to intend to fulfill these integral promises (para. 41; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 79; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at paras. 19-20).
[40] The Federal Court of Appeal reached the correct conclusion regarding the enforceability of treaties prior to 1982. As noted at para. 100 of its reasons, “[t]reaties were entered into with the intention to create legal obligations and how that obligation is characterized is of no consequence to the question [of] whether their terms are enforceable.” Courts prior to 1982 clearly recognized the legal character of treaties: they create and embody enforceable obligations based on the mutual consent of the parties.
(a) Caselaw Demonstrates That Breach of Treaty Claims Were Actionable Pre-1982
[41] Courts recognized that treaty promises created enforceable and actionable legal duties prior to 1982. Although the characterization of treaties and their obligations may have varied, “it is too much of a leap to suggest that treaties were not justiciable in Canada through the 19th century; that the executive’s personal goodwill and subsequent actions could not give rise to legally or equitably enforceable obligations” (Promislow, at p. 1147). Instead, a long line of authorities upheld the enforceability of treaties at common law and the actionable duties they enshrine. These authorities were comprehensively summarized by the Federal Court of Appeal, but several are particularly notable.
[42] Early decisions of this Court and the Judicial Committee of the Privy Council (“JCPC”) characterized treaties as enforceable contracts. St. Catherine’s Milling and Lumber Co. v. The Queen (1888), 14 App. Cas. 46 (P.C.), is helpful as a starting point. The Blood Tribe relies on St. Catherine’s for the argument that Indigenous claims were treated as political matters. However, a close analysis of the JCPC’s reasons reveals that this case was not about the enforceability of treaty commitments. Instead, the appeal concerned Ontario’s control of Crown lands. Despite the limits of its analysis, St. Catherine’s sets out the JCPC’s understanding and characterization of treaties as “formal contract[s]” (see pp. 51-52 and 54-55).
[43] This Court and the JCPC recognized the enforceability of treaties a decade later in Province of Ontario v. Dominion of Canada (1895), 1895 CanLII 112 (SCC), 25 S.C.R. 434 (“Annuities Case (SCC)”), aff’d [1897] A.C. 199 (“Annuities Case (JCPC)”). The dispute concerned a treaty commitment to increase annuity payments over time to the Ojibway in the Lake Huron district of the Robinson-Huron Treaty. The JCPC recognized that the treaty made the provincial government “liable to fulfil the promises and agreements made on its behalf” and characterized the question as one of “contract liability for a pecuniary obligation” (pp. 205 and 213). This Court in the Annuities Case (SCC) also acknowledged the enforceability of the obligations: “. . . the Indians are of right, under the treaties, entitled to the payment of the arrears” (p. 498). Contrary to the Blood Tribe’s reliance on this authority in this matter, the reference to a treaty right being a “personal obligation” at p. 213 of the Annuities Case (JCPC) does not diminish the enforceability of the commitment since this characterization was only used to distinguish the obligations from a charge in land.
[44] The Annuities Case (JCPC) was built on in Henry v. The King (1905), 1905 CanLII 245 (CA EXC), 9 Ex. C.R. 417, where the Exchequer Court considered the enforceability of treaty commitments and recognized their legal effect. The Mississaugas of the Credit filed a petition seeking a declaration that they were entitled to certain moneys owed under a treaty. The court required the payment of the annuities demanded in the claim and supported the enforceability of the treaty in several respects. For example, the treaty was characterized as an enforceable agreement with consideration (p. 429). Furthermore, jurisdiction was based on the claim arising from an agreement or treaty. The court reached this conclusion because the Mississaugas’ right “rests upon the treaty or contract between the Crown and them, and . . . the court has . . . jurisdiction so to declare” (p. 446).
[45] The Exchequer Court in Dreaver v. The King (1935), 5 C.N.L.C. 92, continued to enforce specific treaty terms. Dreaver concerned a petition of right filed by the Mistawasis Band in Saskatchewan seeking amounts to reimburse education and medicine expenses that were improperly charged to its trust account. The band relied on a treaty promise requiring the Crown to provide free education and medicine. In granting the petition, the court relied on the treaty promises and gave them legal effect. The treaty at issue created an actionable right that the band relied upon to pursue relief.
[46] Caselaw nearing the coming into force of the Constitution Act, 1982 upheld the view that treaty obligations were enforceable and actionable at common law. For example, the Federal Court in Pawis v. The Queen, 1979 CanLII 4133 (FC), [1980] 2 F.C. 18, considered the relationship between the Ontario Fishery Regulations, SOR/63-157, and the treaty rights of the Ojibway and explicitly recognized that breaches of treaty obligations were actionable. When characterizing the treaty at issue, the court emphasized its enforceability:... the Treaty has to be taken as an agreement entered into by the Sovereign and a group of her subjects with the intention to create special legal relations between them. The promises made therein . . . were undoubtedly designed and intended to have effect in a legal sense and a legal context. The agreement can therefore be said to be tantamount to a contract, and it may be admitted that a breach of the promises contained therein may give rise to an action in the nature of an action for breach of contract. [Emphasis added; pp. 24-25.] [47] A similar result was reached in Town of Hay River v. The Queen, 1979 CanLII 4137 (FC), [1980] 1 F.C. 262, and R. v. Taylor (1981), 1981 CanLII 1657 (ON CA), 34 O.R. (2d) 360 (C.A.). In Hay River, the Federal Court held that the treaty at issue was not “simply a contract between those who actually subscribed to it” and instead “impose[d] and confer[red] continuing obligations and rights” (p. 265). In Taylor, the Court of Appeal for Ontario did not characterize the nature of the treaty at issue but held that the treaty had a clear legal effect: it preserved historic rights to hunt and fish. None of these authorities suggest that treaties were not enforceable prior to the coming into force of s. 35(1) of the Constitution Act, 1982.
[48] The Blood Tribe’s categorization of these authorities based on how the treaty was used (i.e. either as a “sword” or a “shield”) does not diminish the conclusions of the courts discussed above. The Federal Court of Appeal correctly dismissed this argument, holding that “[t]here is no logical reason to conclude that the use of a treaty to defend conduct has no bearing on the question [of] whether a treaty is enforceable, whereas an action to assert a treaty term, does” (para. 101). Enforceability at common law speaks to a clear and concise question: does the treaty have legal effect? Regardless of the form of proceeding, the authorities outlined above demonstrate that treaties were given legal effect, and thus were enforceable, prior to 1982. The ability for Indigenous interests, including treaty rights, to arise in an array of forums and proceedings does not diminish their legal effect or viability (R. v. Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533, at paras. 89-92).
[49] The Federal Court of Appeal appropriately considered and followed the authorities set out above, including by disregarding R. v. Syliboy, 1928 CanLII 352 (NS SC), [1929] 1 D.L.R. 307 (N.S. Co. Ct.). The Nova Scotia County Court in Syliboy held that the treaty at issue was a “mere agreement made by the Governor and council with a handful of Indians giving them in return for good behaviour food, presents, and the right to hunt and fish as usual” (pp. 313-14). As the Federal Court of Appeal correctly concluded, “Syliboy was incorrectly decided in its time, and remains so today” (para. 140). This Court previously reached this conclusion in Simon, noting that the decision “reflects the biases and prejudices of another era in our history” and relies on language that is “no longer acceptable in Canadian law” (p. 399). Syliboy did not and does not reflect the current state of the law.
[50] Treaty obligations are enforceable and actionable from their execution. The conclusion of a treaty-making process creates active and binding obligations on the Crown, and this is well established in Canadian caselaw. The position of the Blood Tribe that treaties were treated as political matters prior to 1982 conflicts with these authorities and undermines the binding nature of promises made in historic treaties. This line of cases gave legal effect and judicial remedies, including declaratory relief and monetary orders, based on the obligations enshrined in treaties (see, e.g., Henry, at pp. 445-47; Dreaver, at p. 122).
(b) Treaty No. 7 Was Enforceable and Actionable at Common Law
[51] The Federal Court of Appeal correctly held that Treaty No. 7 was enforceable at common law. This aligns with the authorities set out above and reflects the nature of treaties as binding legal instruments that must be upheld. The right to a judicial remedy where treaty obligations are breached is provided by the common law, grounded in the terms of the treaty at issue, and does not require s. 35(1) of the Constitution Act, 1982 or legislation enacted pursuant to s. 91(24) of the Constitution Act, 1867. This conclusion is reinforced when the impact of s. 35(1) is analyzed, as demonstrated below.
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