Unforgiven Trespasses: Provincial Statutes of Limitations and Historical Interference with Indian Lands

• Author: Alisia Adams
• Position: Is a judical law clerk for the Supreme Court of British Columbia
• Pages: 32-40

Provincial Statutes of

Limitations and Historical

Interference with

Indian Lands

Unforgiven Trespasses:

1See e.g. the facts of

Chippewas of Sarnia

Band v. Canada(1999)

O. J. No. 1406 (Ont.

Sup. Ct.), online: QL

(OJ), in which

unsurrendered Indian

lands were sold to

settlers in 1839,

contrary to the Royal

Proclamation, 1763.

2William B.

Henderson, “Litigating

Native Claims” (1985),

19 L. Soc. Gaz. 174.

3Catherine E. Bell,

“Limitations,

Legislation and

Domestic

Repatriation,” (1995)

29 U.B.C. L. Rev. 149.

Alisia Adams is a

judical law clerk for the

Supreme Court of

British Columbia.

Alisia completed her

Bachelor of Laws at

the University of

Victoria in 2000. She

also holds a Bachelor

of Arts and a

Certificate in Liberal

Arts from Simon

Fraser University.

Introduction

Since Europeans first arrived in North America, both governments and

private individuals have interfered with aboriginal Canadians’ right to

use and enjoy their traditional territories. Canadian history is rife with

examples of the alienation and damage of Indian lands in circumstances that

were not only morally reprehensible, but also often contrary to the laws of

the day.1

Aboriginal peoples have historically faced significant obstacles to

seeking remedies in Canadian courts for these injustices. A legacy of

paternalism effectively discouraged many aboriginal groups from pursuing

claims for interference with their lands until the latter decades of the

twentieth century.2However, Indian bands are gaining familiarity with and

confidence in, the judicial system and are turning to the courts to remedy the

historical injustices perpetrated against them.

Canadian courts must now decide whether aboriginal claimants

have waited too long before commencing their actions, and whether

defendants in these historical claims can use statutes of limitations to insulate

themselves from liability. Although a preliminary matter, statutory

limitations have the potential to extinguish even the substantively strongest

of claims. Presumptions about their application inform bargaining positions

in negotiations for settlement.3

This paper will explore the application of provincial statutes of

limitations to claims made by Indian bands. This article will examine the

principles of limitations and consider how these principles have been

inconsistently applied to actions commenced by Indian bands in the past.

Lastly, this article will examine recent legal developments that suggest

Canadian courts are moving towards a constitutional approach to the issue,

which if followed, would effectively insulate claims respecting Indian lands

from the application of provincial statutes of limitations in provincial courts.

This article contains

the views of the author

and was not prepared

as part of her duties as

a law clerk for the

Supreme Court of

British Columbia.

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