Time crunch

Happy Monday. Good luck to all of the students wrapping up exams, the professors with a pile of papers to mark, and everyone else just trying to survive another ordinary week.

— Dylan Gibbs

• Limitation periods and Indigenous rights

• Forcing part of a lawsuit to arbitration

• Trial by ambush

• Guess Who

INDIGENOUS LAW

Best we can do is a declaration

Shot Both Sides v. Canada, 2024 SCC 12

The Blood Tribe didn’t exactly get what it wanted at the Supreme Court, but it didn’t leave empty-handed. On Friday, the Court said the First Nation waited too long to sue after learning that its reserve was drastically smaller than the size Canada promised. The Blood Tribe had to settle for a declaration, which doesn’t force the government to make things right but at least confirms Canada acted dishonourably.

What happened? Canada promised the Blood Tribe a reserve in Treaty No. 7, using a population-based formula to calculate the reserve’s size. The reserve should have been 710 square miles. But when Canada staked out the boundary in 1882, the reserve was only 650 square miles. And Canada made things worse by giving a portion of the reserve away for agriculture. The Blood Tribe ended up with 547.5 square miles — still the country’s largest reserve, but less than 80% of what Canada promised.

In 1971, Blood Tribe members discovered just how badly the government had ripped them off. But they didn’t sue until 1980 — a few years after Alberta’s six-year limitation period had expired.

Since when are treaties enforceable? The Blood Tribe argued that courts didn’t recognize breach of treaty claims until Canada enacted the Charter in 1982. If the Blood Tribe didn’t have a right to sue until 1982, the limitation period couldn’t have started any sooner.

The trial judge agreed, effectively concluding that treaties were worthless until section 35 of the Charter “recognized and affirmed” the rights of Indigenous peoples. The Federal Court of Appeal reversed, holding that the Blood Tribe was out of time.

At the Supreme Court: Justice O’Bonsawin wrote a unanimous judgment that confirms the Blood Tribe has always had the right to enforce Treaty No. 7. Section 35 of the Charter gave treaty rights constitutional status, but it didn’t create those rights in the first place. Before the Charter, First Nations could sue for breach of contract (at least in theory). And that means the Blood Tribe sued too late.

But that wasn’t the end of it: Despite the claim being out of time, the Court granted a declaration confirming that Canada dishonourably breached its treaty obligations. That’s not a typical litigation outcome, but the Court said declarations have a unique role in the context of Indigenous claims:

Plus, Canada’s conduct was pretty bad — after carving out too small of a reserve and then making it even smaller, the Crown gaslit the Blood Tribe with a letter saying the reserve was actually bigger than it should be.

Big picture: One of the most important things about this case is what it doesn’t say. The Blood Tribe never argued it would be unconstitutional to apply limitations legislation to Charter-protected treaty claims. And Justice O’Bonsawin pointed that out. Repeatedly.

The Court often repeats itself for no reason. But this sort of repetition feels different. Justice O’Bonsawin emphasized in her introduction that the Court wasn’t deciding whether limitations legislation lawfully applies to Indigenous rights. Then she spent two full paragraphs explaining why. Then she went out of her way to note that prior cases haven’t resolved the issue either.

If that’s not a signal that the issue is worth arguing, I don’t know what is.

HEARSAY ROUNDUP

Canadiana

✍️ It’s official — BC and the Haida First Nation signed the agreement that formally recognizes Aboriginal title to Haida Gwaii.

🎸 The Guess Who won’t be playing your favourite hits at their next concert (at least without getting sued). As part of an escalating legal battle over use of the Guess Who name, Burton Cummings stripped the band of its right to play the songs he wrote and published (i.e., any Guess Who song you’ve actually heard of).

🧑‍⚖️ The BC Court of Appeal confirmed that BC courts can partially stay court proceedings in favour of arbitration, even though the province’s Arbitration Act doesn’t mention that power.

• As for the test? Courts can grant a partial stay if they can separate the issues covered by an arbitration agreement from those that aren’t covered. Intertwined issues are more likely to require a full stay.

• The proportion of issues destined for arbitration also matters — partial stays are more appropriate if most of the claim isn’t covered by an arbitration agreement.

• The Court used its approach to carve up a shareholder dispute. The bulk of the action, alleging that a shareholder committed fraud and other wrongdoing, can remain in the courts. But the plaintiffs can’t ask the defendant to hand over his shares, because share ownership is arguably covered by the parties’ arbitration agreement.

🎥 The Nova Scotia Court of Appeal stuck with the plain meaning of a civil procedure rule that allows trial by ambush. The defendant in a slip and fall case relied on Nova Scotia’s Rule 49.09 to withhold security footage from the plaintiff. Rule 49.09 carves out a discovery exception that lets litigants withhold records — as long as they only use those records to impeach a witness during cross-examination.

• The Atlantic Provinces Trial Lawyers Association intervened in the appeal to support the plaintiff, who effectively argued: “It’s 2024. How can a defendant refuse to turn over security footage that captures the dispute on tape?” The Court said arguments about “fairness and full disclosure [had] resonance,” but it’s not the court’s job to rewrite the rule.

⚡️ BC introduced legislation to clamp down on inordinate electricity use by cryptocurrency miners.

Beyond the border

🇺🇸 Donald Trump is making history today as the first former president to face a criminal trial. If you’ve (understandably) lost track of the trials Trump is facing, this one is about the hush money payments that went to Stormy Daniels and Karen McDougal. After the two women said they had affairs with Trump, Trump’s ex-lawyer Michael Cohen arranged to pay them off. Trump is charged with falsifying Trump Organization records. Prosecutors say he tried to hide campaign financing violations by logging payments to Cohen as legitimate legal expenses.

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