First Nations Land Claims

There are three major types of claims in Saskatchewan: specific, surrender, and land entitlement. A specific claim arises when a First Nation alleges that the federal government has not lived up to its obligations under treaty or other agreement or legal responsibility (see Table FNLC-1). According to Canada’s land claim policy, a valid specific claim exists when a First Nation can demonstrate that Canada has an outstanding lawful obligation as follows: the non-fulfillment of a treaty or agreement; a breach of an Indian Act or other statutory obligation; the mishandling of Indian funds or assets; or an illegal sale or disposition of Indian land. Canada will also consider claims that go beyond what is considered to be a lawful obligation, usually including failure to compensate a band for reserve land taken or damaged under government authority; or fraud by federal employees in connection with the purchase or sale of Indian land.

Surrender claims are a form of specific claims that refer to the surrender of reserve lands that were taken improperly by Canada. These types of specific claims occur when there has been a technical breach of the Indian Act (meaning that the proper regulations within the Indian Act were not followed), or if there has been a fiduciary breach of the government’s obligation (meaning that the surrender was not in the best interests of the First Nation).

A Treaty Land Entitlement claim occurs when a First Nation alleges that the Canadian government did not provide the reserve land promised under treaty. For some, this means that no reserve land was received; for others, that the correct amount was not received. Between 1871 and 1921, eleven numbered treaties were signed in Canada, six of which were within the boundaries of Saskatchewan. These treaties resulted in the Canadian government gaining access to large tracts of lands, in exchange for smaller parcels of land (reserves) and a number of benefits including Education, Health Care, hunting and fishing rights, as well as assistance in making the transition to a Farming economy. Treaties 2 and 5 allowed for 160 acres for each family of five, or 32 acres per person; Treaties 4, 6, 8 and 10 allowed for one square mile for each family of five, or 128 acres per person. Although the Numbered Treaties were clear on what formula was to be used to determine the size of reserves, they were silent as to when the land should be set aside and thus what population figure would be used to determine the amounts of acreage for reserves. It is this issue in particular that has resulted in the need for Treaty Land Entitlement in Saskatchewan.

By the early 1930s, both the federal and provincial governments were aware of this issue, and under the terms of the Natural Resources and Transfer Agreement the province of Saskatchewan was obligated to negotiate in Treaty Land Entitlement arrangements. Under paragraph 10 of the Agreement, the province agreed to provide unoccupied Crown lands, or to share in the cost of providing money for bands to purchase land if no suitable Crown lands were available. In 1976 the issue was revisited and it was agreed that the cutoff for resolving outstanding entitlements would be the population as of December 31, 1976: as a result, the entitlement would be based on the population of the band at December 31, 1976, multiplied by 128 acres, minus the number of acres the band had already received. This became known as the Saskatchewan Formula. Owing to the unavailability of suitable unoccupied Crown land, to the province wanting compensation from the federal government, and to third party interests in land, only three entitlements were resolved under the Saskatchewan Formula. In 1987 both levels of government revisited the issue of shortfall acres and decided to examine population numbers at the date of first survey of reserves: shortfall acres would therefore be based on only those individuals who were not accounted for at the time the reserve was surveyed. This meant that many bands were to receive fewer acres than under the Saskatchewan Formula, and resulted in five First Nations taking legal action against both levels of government.

In 1989 the Office of the Treaty Commissioner (OTC) was created as an alternative to litigation and to seek agreement on a fair and equitable way to deal with the shortfall issue. Under the leadership of Clifford Wright, the OTC was mandated by the Federation of Saskatchewan Indian Nations and the federal government to develop a model for settling recognized shortfalls. In 1990 the OTC submitted a report with what has become known as the Equity Formula. Under the formula, the OTC examines what percentage of band members did not receive land, then takes the present population and bases the acreage on that percentage: for example, if a band was made up of 100 people in 1880 and only 60 were present when the reserve was surveyed, then 40% of the band was not accounted for when the reserve was surveyed; using the Equity Formula, one would take 40% of the current population, multiply it by 128 acres, and subtract the amount of land first surveyed.

In September 1992, twenty-five First Nations, the province of Saskatchewan and the Canadian government signed the Saskatchewan Treaty Land Entitlement Framework Agreement (see Table FNLC-2). Under the terms of the agreement, the First Nations with outstanding entitlements will receive approximately $539 million over twelve years to purchase just over two million acres of land. As of February 2004, 596,010 acres had attained reserve status. When the TLE process is completed, reserve land will account for just over 2% of the provincial land base. Presently about 1% of the land base is reserve land, but the status Indian population constitutes about 10% of the province’s population.

Rob Nestor

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