Jim Shot Both Sides v. Canada, 2019 FC 789
The Blood Tribe Decision June 12, 2019

“Canada failed to meet its fiduciary duty to the Blood Tribe and acted dishonourably by putting the interests of the white leaseholders ahead of the Blood Tribe’s interests in the land, which it was to preserve and protect.”

“Canada is liable to the Blood Tribe for this breach of Treaty.” Justice Zinn

In September 1877 the Blood Tribe entered into Treaty 7 with Canada. In June 2019, after considering the evidence, including oral history evidence from a number of Blood Tribe members, the Federal Court found that Canada failed to implement the Treaty Land Entitlement (TLE) that was owed to the Blood Tribe.

Justice Zinn found that the Treaty claim was not time-barred and gave significant weight to oral history evidence, despite written documents in evidence which supported Canada’s version of events. He found that the date for calculating a Band’s TLE under Treaty 7 is the date when the Band entered into Treaty with the Crown (not the date the reserve was first surveyed). The 547.5 square mile Reserve that they were living on should in fact have been 710 square miles. This decision was the conclusion of a litigation and negotiation process that had commenced when the Blood Tribe filed a Statement Claim in January 1980.

Significance of this Decision

A key finding in this case was that a cause of action for breach of Treaty did not exist prior to 1982, when Treaty rights were recognized and affirmed in section 35 of the Constitution Act, 1982. In other words, even if the date of discovery pre-dated April 17, 1982, the limitations clock did not start before that date.

As for causes of action, even though the Blood Tribe did not plead a “breach of Treaty”, Justice Zinn concluded that pleadings should not be so narrowly read that legitimate complaints and grievances are dismissed by courts without being heard. He held that the court must look at the material facts pleaded, not the terminology used.

Westaway Law Group has experience and expertise in Treaty Land Entitlement settlements and Specific Claims. This case will be helpful in the many cases where the Crown delayed its survey of Reserve lands. Please contact us for more information.