Completed Inquiries – Reports Released

01/06/1994

Lax Kw'alaams Indian Band [Tsimpsean Indian Reserve 2] – June 1994

In the first quarter of this century, the Crown unilaterally divided Tsimpsean IR 2 between the Lax Kw'alaams people and the Metlakatla Band. No surrender was obtained at this time. A few years later, Metlakatla surrendered lands to the Grand Trunk Railway Company without the consent of Lax Kw'alaams. In 1985 the Band made a claim to Canada for compensation because this arrangement was made without a valid surrender of the Band's interest. Negotiations continued over the next six years. In 1991, the parties reached an agreement in principle but the claim was not finalized because of disagreement about the final wording, which included an "absolute surrender."

In 1993, the Indian Claims Commission began an inquiry. Canada demanded an "absolute surrender" that extinguishes aboriginal interest in the lands in question as a condition of the Crown compensating the Band. However, for the Band to surrender Aboriginal title to the land at issue would place at risk the aboriginal interest of the Allied Tsimshian Tribes even though no compensation was offered.

The Commission found that it was reasonable for the Crown to seek a surrender of the Band's reserve interest to ensure that third party interests were adequately protected. However, the ICC report recommends that the surrender clause be modified to expressly exclude the aboriginal interests of the Lax Kw'alaams Indian Band and the Tsimshian people from the surrender so that these interests can be dealt with in the British Columbia Treaty process. The report further recommended that clauses respecting release, indemnity and set-off be included to satisfy Canada's concerns regarding over-compensation. The report also recommended that the parties re-draft the terms of the settlement, and that the Band, Canada and the Commission meet one month after the release of the report to discuss its finds and recommendations.

Response: In December 2001, government rejected recommendations stating "Aboriginal interests were never excluded from any of the appraisals considered during the negotiations ... they cannot be considered to have been excluded from the discussions ... It is legally impossible to exempt Aboriginal interests from the scope of a section 38 surrender without jeopardizing the legal effect of the surrender ..."

To download the report - PDF