In 1980, the Blood Tribe brought an action in the Federal Court. They said the Crown breached its fiduciary duty and alleged fraudulent concealment and negligence. The Blood Tribe sought a declaration and damages for breach of contract.

The Federal Court concluded that the Crown miscalculated the size of the reserve and that its conduct during the reserve’s creation was unconscionable. The trial judge found that the clock began ticking on the limitation period in 1982, the enactment of the s. 35(1) of the Constitution Act, 1982, which created a new cause of action for treaty breaches. The Federal Court of Appeal disagreed, finding that the Blood Tribe’s claim was statute barred because s. 35(1) did not create new treaty rights and a remedy was available before 1982.

Justice Michelle O’Bonsawin, who wrote the reasons for the unanimous court, said that treaty rights come from the treaty, not s. 35(1), and upon execution, the treaty gives rise to actionable duties under the common law. Therefore, the Blood Tribe’s claim was actionable prior to 1982 and is statute-barred because of the six-year limitation period, she said. 

O’Bonsawin found that the “longevity and magnitude of the Crown’s dishonourable conduct” called for declaratory relief, which would clarify the treaty land entitlement, identify the dishonourable conduct, assist reconciliation, and help restore the Crown’s honour.

When considering the court’s finding that treaty rights were enforceable upon execution of the treaty, Luk says it is important to keep in mind that it was illegal for First Nations to hire lawyers without the permission of the Minister of Indian Affairs until 1951.