Federal Appeal

Aboriginal Peoples

Proceedings not related to any public duty that might be incumbent on Crown


This was appeal from judge’s decision summarily dismissing appellants’ claim on basis that limitation period expired pursuant to Public Officers’ Protection Act (Sask.) (“POPA”). In 1874, Crown entered into treaty with certain Aboriginal peoples. Pursuant to treaty, reserve was set apart for benefit of appellant band. In 1901, Indian agent developed scheme of colonization. Under scheme best farming sections of reserve were surveyed into lots in order to settle ex-pupils from various Indian schools who were not members of band. For purpose of achieving scheme of colonization, band membership of pupils settling on reserve had to be transferred to band. Consent of band was required but there was opposition. In 1911, Indian agent devised scheme by which band would enter into agreement with Crown. Pursuant to scheme of colonization and agreement entered into in 1911, numerous pupils were settled into reserve. Overall size of reserve remained unchanged and reduced reserve land base available to original band members and descendants. Large increase in band membership led to conclusion in 1945 that investigation into band membership was indicated. In 1948, certain original members of band called for investigation into band membership. In 1955, Ministerial committee provided report on subject of band membership. Indian Act (Can.) (“IA”), was substantially revised in 1951, which introduced new system of registration for Indians governed by Act. New system allowed for protests and there were number of band membership protests. In 1956, judge found that all residents of reserve whose membership in band had been protested were entitled to be registered as Indian members of band. In 1982, Government of Canada adopted specific claims policy, which expanded scope of federal government’s policy on matter of claims for mismanagement of Indian land, money or assets. Within context of specific claims policy, band started to work toward establishing treaty entitlement based on Crown’s failure to provide volume of land consistent with terms of treaty. Band filed claim in 1992, which was held in abeyance pending outcome of claim process provided for under specific claims policy. In 2004, Minister found that judge’s 1956 decision applied to issues raised by claim and matter was res judicata. Litigation started in 1991 was reactivated in 2010. Judge found that essential facts underlying claim were widely known to community and band members by 1956 at latest. Judge found that claim involved exercise by Crown of public power or duty and protection provided in POPA extended to Crown. Judge refused to extend time limitation provided under POPA. Judge also found that limitation periods in Limitation of Actions Act (Sask.) (“LAA”), applied. Appeal dismissed. It appeared that as result of 1911 agreement Crown assumed discretionary power over management of land situated on reserve. Fundamental issue in lawsuit was whether 1911 agreement constituted exploitative bargain reached in breach of Crown’s fiduciary duty with respect to management of reserve land. Such issue did not raise public law duty on part of Crown. Duty was sui generis obligation incumbent on Crown that was in nature of private law duty. Judge erred in finding that Crown was acting pursuant to public duty. Proceedings were not related to any public duty that might be incumbent on Crown with respect to band membership under IA. POPA did not apply and judge erred in finding it applied. LAA applied to claim. There was no concealment of material fact by Crown. Claim was barred statutory limitation period.

Peepeekisis Band v. Canada (Minister of Indian Affairs and Northern Development)

(Aug. 12, 2013, F.C.A., Pierre Blais C.J., Robert M. Mainville J.A., and D.G. Near J.A., File No. A-417-12) Decision at 222 A.C.W.S. (3d) 914 was affirmed. 232 A.C.W.S. (3d) 1.

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