Canada: Samson Indian Nation v. Canada; Ermineskin v. Canada, File Nos. 37280 And 37277, Supreme Court Of Canada (Moldaver, Côté And Rowe JJ.), 9 March 2017

Download the entire Aboriginal Legal Issues e-Newsletter — March 9, 2017.

The Supreme Court of Canada dismissed a leave application filed by two Alberta First Nations in regards to a 2015 order of the Federal Court, upheld by the Federal Court of Appeal in September 2016, which had dismissed their actions on limitation grounds.

The underlying litigation concerns oil royalties between 1973 and 1985, and whether the plaintiffs are entitled to compensation due to the "made-in-Canada" oil price program established under the National Energy Program. The claim of the Samson Band was filed in September 1989, and the companion claim in Ermineskin was filed in May 1992. Canada applied for summary dismissal based on statutory and equitable limitation periods.

The summary dismissal application was allowed by the Federal Court: 2015 FC 836. Russell J. held that Alberta limitations legislation applied, rather than the Ontario statute (as argued by the plaintiffs). Citing cases such as Wewaykum Indian Band v. Canada , 2002 SCC 79 and Canada (Attorney General) v. Lameman, 2008 SCC 14 [sub. nom. Papaschase Indian Band v. Canada], Russell J. held that limitations legislation, as well as the principles of laches and acquiescence, are "applicable to claims against Canada even where the rights at stake are constitutionally­protected treaty and Aboriginal rights". The Court held that the Lameman decision left "no doubt that the Supreme Court of Canada felt there was no issue of constitutionality when it comes to applying limitations legislations to claims involving Aboriginal and treaty rights". The exceptions to this rule, as discussed in Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, were not applicable here. Russell J. also held that limitation periods do not expunge or extinguish rights, but only bar remedies. Alberta legislation establishes a six-year limitation period. The plaintiffs were aware of the facts by 1978, and made a strategic choice not to bring a claim at that time. The Court rejected the argument that limitations legislation should not apply due to factors such as the Honour of the Crown. Such a result would make the plaintiffs immune from limitation periods, and recognize a right to sue on their treaty rights at any time that they please.

In September 2016, the Federal Court of Appeal upheld this decision: 2016 FCA 223. The majority held that the plaintiffs had not demonstrated any error of law or any palpable and overriding error of fact or mixed fact and law in the Federal Court's reasons. Webb J.A. dissented in part. He would have allowed the Samson Band's appeal in relation to the issue of whether Canada had improperly or illegally taxed the property of Samson.

Such a claim would be restricted to only the amounts collected by Canada within the six year period prior to the commencement of the action by Samson.

A summary of the Samson case found on the Supreme Court of Canada's website was as follows:

Constitutional law — Aboriginal law — Treaty rights — Limitation of actions — First Nation suing Crown for infringement of treaty rights and breaches of fiduciary duties with respect to oil and gas royalties — Courts below granting Crown's motion for summary judgment and dismissing claim as being statute-barred — Provincial limitation periods incorporated by reference into federal law and applicable to treaty claims — Whether statutory limitation periods are applicable to the constitutionally-protected rights of First Nations in a manner that does not promote reconciliation between First Nations and the Crown — Whether Canada is entitled to extinguish constitutionally-protected treaty rights through the wholesale application of generic limitation periods — Whether Canada has the obligations of a de facto common law trustee with respect to oil and gas royalties and for the purposes of applying limitation periods — Whether the applicants are precluded from challenging all aspects of federal oil and gas legislation, including those that continued to be applicable after the filing of the applicants' statement of claim, on the basis that the applicants' claims "crystallized" upon the initial passage of legislation — Whether it is appropriate, in a summary judgment motion, to rule on the merits of the claim when the only issue before the Court was whether the claims were made within the applicable limitation period — Federal Courts Act, R.S.C. 1985, c. F-7, s. 39 — Indian Oil and Gas Act, R.S.C. 1985, c. I-7, s. 4 — Limitation of Actions Act, R.S.A. 1980, c. L-15, s. 4(1) — Constitution Act, 1982, s. 35

In 1946, the applicant First Nation surrendered their mineral interests in their reserve to the Crown, which permitted the Crown to grant leases to oil and gas companies, who then paid royalties to the Crown in trust for the First Nation. In 1973, Canada developed a national strategy to deal with the effects of rapidly rising international oil prices, including the implementation of an export tax (and later, an export charge) on oil export sales. The tax or charge was levied on any exported oil produced on the reserve between 1973 and 1985. In 1989, the First Nation brought an action in Federal Court asserting a number of claims against Canada arising out of these facts, alleging that the regulated price regime constituted, among other things, a breach of the Crown's trust and fiduciary duties, as well as infringements of treaty rights and obligations. The federal Crown brought a motion for summary judgment, seeking the dismissal of the claim as being time-barred by a six-year statutory limitation period.

The Federal Court granted the Crown's motion for summary judgment against the First Nation, on the basis that their claim raised no triable issue in light of the application of statutory limitation periods. A majority of the Federal Court of Appeal dismissed the First Nation's appeal, finding no error in the Federal Court's reasoning and decision. In the Court of Appeal's view, the motions judge properly applied the existing jurisprudence which confirms that limitation periods are applicable to all Aboriginal claims, including those based on infringements of treaty rights. In partial dissent, one judge of the Court of Appeal would have allowed the First Nation's appeal to the extent of permitting its claim that Canada improperly collected a tax to continue, in relation to amounts collected in the six years prior to the First Nation filing its statement of claim.

The Supreme Court of Canada dismissed the leave application, with Madame Justice Côté dissenting.­csc/news/en/item/5458/

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.