Supreme Court of Canada decides issues of limitation periods and declaratory relief in Aboriginal and treaty rights cases

Today the Supreme Court of Canada released its unanimous decision in Shot Both Sides v. Canada, 2024 SCC 12, which deals with how limitation periods apply to Aboriginal rights and treaty claims, and the function and scope of declaratory relief. The court made several important pronouncements about the nature of treaty rights and the function of declaratory relief, but questions surrounding the constitutionality of limitations legislation remain.


Kainai/the Blood Tribe, which is a signatory to the Blackfoot Treaty, also known as Treaty No. 7 (the “Treaty”), brought a breach of treaty case about the Crown’s failure to apportion a reserve according to treaty land entitlement provisions, i.e. one mile per family of five. Canada provided Kainai with a reserve that fell short of this metric by 162.5 square miles.

Canada conceded its breach of the Treaty, but defended against the case by arguing that the Blood Tribe was out of time, an argument successful at the Federal Court of Appeal. At the time the lawsuit was filed, the Alberta Limitation of Actions Act included a term that all claims must be brought within six years of discovering the cause of action. The Federal Court of Appeal concluded that Kainai had known about the case since 1971, and failed to bring an action within the prescribed limitation period of 6 years.

The Court’s Decision

In the result, the court concluded that Kainai’s claim was discoverable in 1971, and was statute-barred by the operation of the limitation period. Nonetheless, finding that a declaration would have practical effect in this case by promoting reconciliation between the parties and offering needed clarity on the legal dispute between them, the court made a declaration that:

  • under the Treaty, Kainai was entitled to a reserve of 710 square miles;
  • the reserve it received is 162.5 miles smaller than what was promised by the Treaty, and
  • by providing Kainai with this smaller reserve area, Canada dishonourably breached the Treaty.

Significance of rulings on the nature of Aboriginal and treaty rights and the function of declaratory relief

The court affirmed that limitation statutes do apply to Aboriginal rights and treaty claims, and that treaty claims were not created or made enforceable by the operation of the Constitution Act, 1982, but rather by the operation of common law, from the time the treaty was executed. The court affirmed the practical utility of declaratory relief to provide legal clarity, which can have a role in promoting reconciliation between the Crown and Indigenous peoples.

Arguments before the Supreme Court of Canada focused on whether the Treaty was judicially enforceable since its signing, or whether (as Kainai argued) it had only become enforceable with the passage of s. 35 of the Constitution Act, 1982. Another key issue before the court was the nature of declaratory relief: when a declaration is appropriate, and what utility the declaration provides over and above confirming a court’s factual findings.

In its decision today, the Supreme Court of Canada addressed both issues. It confirmed that s. 35 of the Constitution Act, 1982 provided constitutional status to Aboriginal and treaty rights, but did not create a cause of action. Treaties are binding legal instruments and create rights that are enforceable upon execution the court held. This finding flows from the common law, not s. 35.

On the scope of declaratory relief, the Court held that the courts have “an extremely wide jurisdiction.” Declarations can confirm or deny a breach of a treaty right, or otherwise set the parameters of a legal state of affairs, but should not be issued where there is no practical effect to the declaration. There is an enhanced role for declarations for claims involving Indigenous litigants and the Crown, as a declaration may have the ability to advance reconciliation.

Door remains open for constitutional challenges to limitations legislation

The Court also affirmed that limitation periods do apply to Aboriginal and treaty claims where “captured” by the legislation, but did not deal with the issue of interpreting limitation statutes in light of the significant oppression faced by Indigenous peoples. Several intervenors in the case raised the issue of whether a different analysis for limitation periods is necessary for claims brought by Indigenous peoples against the Crown, given the Crown’s long history of oppression – including prohibiting Indigenous peoples from retaining a lawyer until after 1951.

Interestingly, the court emphasized that prior authorities of the court have not addressed the constitutionality of applying limitation periods to Aboriginal rights and treaty claims. The court reiterated the conclusion of past rulings that Aboriginal right and treaty claims “are subject to the general limitation periods of the province in which the action was commenced if captured by the respective limitations statute,” and noted that the plaintiff in this case admitted that its claim was captured. The plaintiff admitted that the Alberta Limitation of Actions Act applied, and did not contest that its claim was discovered or discoverable in 1971. This may mean the court is leaving the door open to future constitutional challenges of limitations legislation.