The new Limitations Act came into force on May 1st, 2005. This new legislation includes changes to limitation periods. A “limitation period” is the period of time that a plaintiff has before they must commence a legal action in Court.

Some of the main features of the Limitations Act include:

• the provision of a single two (2) year limitation period for most legal actions;
• the provision that the limitation period starts to run when the plaintiff first knew or ought to have known about the claim. This is known as the “discovery principle”; and
• an ultimate limitation period that bars all actions after 15 years.

There are also certain provisions that relate directly to First Nations. Section 3(2)(c) provides that the Limitations Act does not apply to Court proceedings that are based on existing Aboriginal and Treaty rights of the Aboriginals peoples of Canada that are recognized and affirmed in the Constitution Act 1982. In these types of cases proceedings are governed by laws respecting the limitation of actions that would have been in force if this Act had not been passed (s.3(3)). On a plain reading of these sections, it would appear as though Aboriginal and Treaty rights claims would be governed by the present Limitations of Actions Act rather than the new Limitations Act.

However, there is some uncertainty as to what a court might define as a Treaty and Aboriginal right.

In light of the above, the FSIN recommended that, every First Nation with any outstanding legal claim against any government or other party, consult with their respective legal counsels and obtain advice on whether or not their claim(s) were ones that fall within the exception to the new Limitations Act – those being claims related to Aboriginal and Treaty rights. The FSIN suggested that First Nations err on the side of caution in reviewing their claims in light of this new act.

As an additional precaution, the FSIN Specific Claims office drafted a statement of claim in an attempt to preserve the interests of First Nations as they pertain to claims. Each First Nation was contacted to explain the new Limitations Act and its potential impacts. Further, First Nations were invited to join as a claimant in the statement of claim. Upon authorization, the FSIN registered such Statement of Claim on behalf of the First Nations. The Statement of Claim were filed with the court prior to May 1, 2005 when the new Limitations Act took effect and would be held in abeyance pending resolution of claim.

On April 29, 2005, 44 First Nations authorized the FSIN to submit Statement of Claims on their behalf. The Claims filed were accounting claims intended to capture any and all potential claims arising out of surrenders and trust monies. These Statement of Claims are held in abeyance pending resolution of claims.

A judicial decision from the Alberta Court of Queen’s Bench was handed down on September 14, 2004 regarding the Papaschase Indian Band No. 136 v. Canada. The decision deals with a number of issues relating to land claims. More importantly, the judge handed down a decision which may adversely affect the way in which limitation periods are interpreted regarding land claims.

On May 19, 2005, the Lands and Resources Commission directed the Lands and Resources Secretariat to seek intervener status in the Papaschase appeal. A resolution was approved at the Chiefs Legislative Assembly June 9, 2005, supporting FSIN’s application to intervene.

Legal Counsel has been engaged to intervene in Papaschase on behalf of the First Nations of Saskatchewan. A Notice of Motion has been filed and the hearing on the application to intervene was heard before the Alberta Court of Appeal on September 22, 2005.