Canada Supreme Court rules declaratory relief may be appropriate in First Nations treaty dispute News
Bloodtribephotos, CC BY-SA 4.0, via Wikimedia Commons
Canada Supreme Court rules declaratory relief may be appropriate in First Nations treaty dispute

The Supreme Court of Canada found Friday that the government acted dishonestly when it reneged on an 1877 treaty with an Alberta indigenous community and allowed for declaratory relief.

The case concerned the Blood Tribe, which is a member tribe of the Blackfoot Confederacy of First Nations. In 1877, the Crown and the Blackfoot Confederacy signed Treaty No. 7. The treaty established Blood Tribe No.148 as a home for the Blood Tribe. It is the largest First Nation reservation in Canada.

The treaty established a formula for determining how big the reservation should be. Under this formula, one square mile of land would be allotted for every five-person family. Blackfoot researchers gathered information about the population at the time of treaty formation and confirmed that the reservation was smaller than the formula would suggest. The nation sought negotiations with Canada’s Ministry of Indian Affairs, but the ministry refused to negotiate.

The controversy is whether or not the Blood Tribe had standing to bring the case. Canada amended its constitution in 1982 and, in doing so, created a new cause of action for bringing treaty disputes. The Court held that this section of the constitution did not create a new cause of action for treaty disputes, but rather, the cause of action flowed from the treaty itself. Because of this, the Court reasoned that the Blood Tribe could be entitled to declaratory relief.

In its decision, the Court stated:

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.