Federal Appeal

Aboriginal Peoples

Judge held that s. 39 of Federal Courts Act (Can.) did not infringe treaty rights

Plaintiff S Band and plaintiff E Band were treaty First Nations who surrendered their mineral interests in reserve to Federal Crown. Oil produced from reserve was subject to price restrictions and export tax from 1973 to 1985, as per oil price program created by Oil Export Tax Act (Can.) and Petroleum Administration Act (Can.). S Band brought action in 1989 and E Band brought action in 1992 on basis that Crown breached fiduciary and treaty duties as result of oil price program’s application to reserve. Actions were divided into six phases, including “tax” or “Regulated Price Regime” issue. Federal Court judge granted Crown’s motions for summary judgment dismissing both actions relating to Regulated Price Regime issue as being time-barred. Judge held that limitations legislation was applicable to claims against Crown even where rights were constitutionally-protected treaty and Aboriginal rights. Judge found that claims were based upon Crown’s breach of sui generis fiduciary or trust-like obligations requiring Crown to exempt Bands from indirect impact of oil price program upon their royalty entitlement, which were subject to limitations defence. Judge found that Bands did not bring actions until well beyond applicable six-year period within discovery of cause of action under s. 4(1)(e) of Limitations of Actions Act (Alta.) (LAA). Judge held that s. 39 of Federal Courts Act (Can.) (FCA) did not infringe treaty rights, as honour of Crown did not require that damages claim for breach of fiduciary duty be exempted from limitations defence. Bands appealed. Appeals dismissed. Judge did not err in determining that issues were suitable for summary judgment, that s. 39 of FCA and s. 4(1)(e) of LAA were constitutionally applicable, and that claims were not for property held on express trust. Judge did not err in finding that entirety of S Band’s claims in this phase were barred by application of s. 4(1)(e) of LAA.

Ermineskin Indian Band v. Canada (Sep. 8, 2016, F.C.A., Marc Nadon J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A., A-325-16, A-326-15) Decision at 255 A.C.W.S. (3d) 1037 was affirmed. 270 A.C.W.S. (3d) 216.

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