Written by Noah Lesiuk
Following the decision of the Supreme Court of Canada (“SCC”) in Guerin v The Queen, precedent has solidified that limitation periods apply to Indigenous claims against the Crown.[1] In fact, the operation of such a doctrine in the Indigenous context is not only immortalized in the jurisprudence, but expressly conveyed through statutory authority. For instance, the new Manitoba Limitations Act, which came into force on September 30, 2022, explicitly establishes that an ultimate limitation period of 30 years exists for Indigenous equitable claims against the Crown and proceedings concerning Aboriginal and treaty rights.[2] In light of this new legislation, this blog seeks to criticize the application of limitation periods to Indigenous claims against the Crown. To begin, a brief background on limitation periods and their implementation in the Indigenous context will be provided. Next, it will be asserted that they are incompatible with reconciliation and make reconciliation’s invocation by the Manitoba legislature disingenuous. Lastly, it will be argued that the policy justifications for limitation periods are markedly less salient when applied to Indigenous claims.
The Jurisprudential History of Limitation Periods and Indigenous Claims
One of the first cases involving the application of limitation periods to Indigenous claims is Guerin v the Queen. In Guerin, the Musqueam band surrendered reserve lands to the Crown for lease to a golf club on account of various beneficial terms that the Musqueam were offered. However, the actual terms of the lease were significantly worse than what the Musqueam had agreed to in their meetings with the Crown.[3] The Crown attempted to argue that an action against them was statute-barred via the British Columbia Statute of Limitations, but the SCC dismissed this argument as it ruled that the Crown was liable for equitable fraud by concealing the terms of the lease from the Musqueam.[4] Although it was held that the limitation period did not apply due to equitable fraud, the importance of this ruling lay in the implicit concept that, under proper circumstances, limitation periods could potentially apply to Indigenous claims against the Crown. Indeed, with the seeds of such an idea planted, Indigenous access to justice became jeopardized as claims began to be excluded on the basis of limitation periods.[5]
Eventually, the ability of limitation statutes to render Indigenous claims unactionable was expressly confirmed by the SCC in Canada v Lameman. Referring to its ruling from Wewaykum Indian Band v Canada, the Court asserted that it stood for the proposition “that the rules on limitation periods apply to Aboriginal claims.”[6] More recently, the SCC in Manitoba Metis Federation Inc. v Canada provided further guidance on this matter. According to the majority, limitation periods cannot prevent courts from issuing declarations on the unconstitutionality of Crown conduct but are still fully applicable to Indigenous equitable claims for breach of fiduciary duty by the Crown.[7] Consideringthat s. 35(1) of the Constitution Act, 1982, has been interpreted by the SCC as a constitutional guarantee of existing Aboriginal and treaty rights, Indigenous claims involving a breach of those rightsare supposedly not subject to limitation periods.[8]
As illustrated by the jurisprudence discussed, Indigenous equitable claims against the Crown are fully subject to provincial limitation statutes. With this in mind, it is now apt to begin a focused critique denouncing such limitation periods by scrutinizing them through the concept of reconciliation.
Limitation Periods as Antithetical to Reconciliation: A Paradoxical Mix
In Manitoba Metis Federation, the majority of the SCC stated that “the ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty.”[9] Further, the Manitoba legislature in The Path to Reconciliation Act, asserts that reconciliation is meant to “address healing”[10] and encourage “constructive action that improves the present and future relationships between Indigenous and non-Indigenous peoples.”[11] Implicit within these concepts is that Crown accountability for past wrongdoing is an imperative part of the rebuilding process meant to heal the relationship between the Crown and Indigenous peoples. Therefore, as a matter of logic, it is contradictory for the Manitoba legislature to preach the importance of reconciliation through legislation such as The Path to Reconciliation Act, yet allow the Crown to escape liability for past injustice through the new Limitations Act and its clearly expressed limitation periods.[12] Instead of taking responsibility for the past, provincial limitation statutes operate as a shield protecting the Crown from Indigenous claims that would otherwise be actionable. Not only does this stand in direct opposition to the principle of reconciliation, but it severely curtails Indigenous access to justice by eliminating the ability to bring equitable claims against the Crown for certain matters seen as too ancient to litigate. Considering Crown accountability for past wrongdoing is, as aforementioned, an implicit and core part of the reconciliation concept, then equitable claims should be privy to an exemption from limitation periods by virtue of reconciliation’s demands. Ultimately, if repairing the relationship between Indigenous peoples and the Crown is an imperative part of the path towards reconciliation, Indigenous equitable claims should no longer be deemed subject to limitation periods. As long as such constraints continue to persist, the importance of reconciliation espoused by the Manitoba legislature seems disingenuous at best and Indigenous access to justice remains inhibited.
Limitation Periods and Indigenous Claims: Incongruent as a Matter of Policy
It is well known that there are three general policy justifications for the existence of limitation periods. The first is repose and it conveys the idea that a defendant should not be held liable for ancient obligations.[13] This is followed by the evidentiary rationale which holds that evidence will deteriorate over time and become stale due to its weakened accessibility and quality.[14] Lastly, the diligence rationale asserts that plaintiffs should not sleep on their rights and be proactive in the sense of bringing their suit in a timely manner.[15] Although these policy justifications are generally quite reasonable, their persuasive value seriously falters in relation to Indigenous claims. In fact, the majority in Manitoba Metis Federation stated that “many of the policy rationales underlying limitations statutes simply do not apply in an Aboriginal context such as this . . . in the Aboriginal context, reconciliation must weigh heavily in the balance.”[16] While this may have been within the context of a constitutional claim against the Crown, it is arguable that the policy justifications underlying limitation periods are wholly inconsistent with Indigenous claims against the Crown. This becomes a particularly forceful contention when the words of the majority in Manitoba Metis Federation are utilized to supplement its substance. If “reconciliation must weigh heavily in the balance” as the majority claims, then it should be applied as an overarching lens through which to consider the policy rationales for limitation periods. [17]
Beginning with repose, the epitome of reconciliation is righting the wrongs of the past to enhance the present-day relationship between the Crown and Indigenous peoples. Thus, the Crown escaping liability for past wrongs, even if they occurred long ago, is at odds with the essence of reconciliation. Concerning the evidentiary rationale, many of the wrongs perpetrated by the Crown against the Indigenous were long ago before they were cognizant of their rights under Canadian law.[18] As such, most of the evidence relating to Indigenous claims arises from the distant past in the form of oral stories that have been deemed a valid form of evidence which is weighted similarly to written documents.[19] To call such evidence stale is blind to its unique nature and the distinct Indigenous circumstances underpinning its acceptance by the courts. In addition, the Crown holds many historical documents in its archives that are utilized for Indigenous claims and such evidence is unlikely to deteriorate in any substantial manner.[20] In terms of the diligence rationale, it fails to realize the difficulty inherent in bringing Indigenous claims in a timely manner. For instance, many claims stem from far in the past and access to justice within Indigenous communities is hindered by adverse conditions such as a lack of financial resources.[21] To suggest that Indigenous claims should be brought expediently in light of such obstacles is naïve and forgoes reconciliation in favour of speed and efficiency. On the bases of these arguments, it is fair to claim that reconciliation and the unique nature of the Indigenous situation render the policy justifications for the use of limitation periods inadequate in the context of Indigenous claims against the Crown.
Ending Remarks
As demonstrated, limitation periods are not only antithetical to the principle of reconciliation, but the policy rationales justifying their use are insufficient when considered within the context of reconciliation and the distinct circumstances surrounding Indigenous peoples. Although this may be the case, they continue to operate as a statutory bulwark shielding the Crown from Indigenous equitable claims. The continuation of this status quo hinders Indigenous access to justice and, ultimately, undermines the very impetus of reconciliation which the Manitoba legislature promotes.
Legislation
Bill C-51, The Limitations Act, 3rd Sess, 42nd Leg, Manitoba, 2021.
The Path to Reconciliation Act, SM 2016, c. 5.
JURISPRUDENCE
Blueberry River Indian Band v Canada (Department of Indian Affairs and Northern Development), [1995] 4 SCR 344.
Guerin v The Queen, [1984] 2 SCR 335.
Kruger v The Queen, [1986] 1 FC 3, 1985 CanLII 3052.
Manitoba Metis Federation Inc v Canada, 2013 SCC 14.
M.(K.) v. M.(H.), [1992] 3 SCR 6.
R v Sparrow, [1990] 1 SCR 1075.
R v Van der Peet, [1996] 2 SCR 507.
Wewaykum Indian Band v Canada, 2002 SCC 79.
SECONDARY MATERIALS
McNeil, Kent & Thomas Enns, “Procedural Injustice: Indigenous claims, Limitation Periods and Laches” (2022) All Papers 336. https://digitalcommons.osgoode.yorku.ca/all_papers/336
[1] Guerin v The Queen, [1984] 2 SCR 335 [Guerin].
[2] Bill C-51, The Limitations Act, 3rd Sess, 42nd Leg, Manitoba, 2021 ss. 10(2)(a)-(b).
[3] Guerin, supra note 1 at 347.
[4] Ibid at 390.
[5] See Kruger v The Queen, [1986] 1 FC 3, 1985 CanLII 3052; Blueberry River Indian Band v Canada (Department of Indian Affairs and Northern Development), [1995] 4 SCR 344; Wewaykum Indian Band v Canada, 2002 SCC 79 [Wewaykum].
[6] Canada (Attorney General) v Lameman at para 13. See Wewaykum, supra note 5.
[7] Manitoba Metis Federation Inc v Canada, 2013 SCC 14 at paras 135, 138 [Manitoba Metis Federation].
[8] R v Sparrow, [1990] 1 SCR 1075 at 1077.
[9] Manitoba Metis Federation, supra note 7 at para 66.
[10] The Path to Reconciliation Act, SM 2016, c. 5, s 1(1).
[11] Ibid, s 2.
[12] Bill C-51, The Limitations Act, 3rd Sess, 42nd Leg, Manitoba, 2021 ss. 10(2)(a)-(b).
[13] M.(K.) v. M.(H.), [1992] 3 SCR 6 at 29.
[14] Ibid at 30.
[15] Ibid.
[16] Manitoba Metis Federation, supra note 7 at para 141.
[17] Ibid at para 41.
[18] Kent McNeil & Thomas Enns, “Procedural Injustice: Indigenous claims, Limitation Periods and Laches” (2022) All Papers 336at 50. https://digitalcommons.osgoode.yorku.ca/all_papers/336.
[19] R v Van der Peet, [1996] 2 SCR 507at para 68.
[20] McNeil & Enns, supra note 18 at 51.
[21] Ibid at 52.
The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.