Completed Inquiries – Reports Released

01/12/2001

Esketemc First Nation [Indian Reserves 15, 17 and 18] – December 2001

In December 2001, the Commission released its report on the claim by the Esketemc First Nation that the federal government, through the work of federal representative W.E. Ditchburn and his provincial counterpart, J.W. Clark, unlawfully disallowed or reduced three reserves – Indian Reserves (IR) 15, 17, and 18 – that had, in the First Nation's view, been previously set apart for the Alkali Lake Band by the McKenna-McBride Commission in 1916.

Although the Commission concluded that the McKenna-McBride Commission lacked the authority to set apart IR 15, 17, and 18 as reserves or de facto reserves, it found that the federal government nevertheless owed an outstanding lawful obligation to the First Nation based on fiduciary principles. By the terms of its own legislation and the McKenna-McBride agreement, Canada unilaterally assumed the responsibility for representing the interests of the Alkali Lake Band, and it was reasonable for the Band to expect Canada to act in its best interests. The Band was vulnerable to the manner in which Canada exercised its discretion or power, first in the creation of the McKenna-McBride Commission, and later in the appointment of Ditchburn to review the McKenna-McBride Commission's report, created with input from local ranchers and provincial representatives but not from the Band itself. Ultimately, Ditchburn recommended acceptance of Clark's proposal, based on suspect information, to reduce or disallow IR 15, 17, and 18, and the federal government accepted that recommendation.

The Indian Claims Commission found that Canada had a duty: (a) to scrutinize and assess, from the Band's point of view, the merits of Clark's proposal; (b) to inform the Band of the proposal with information about the alternatives and their possible consequences; (c) to seek instructions as to how to proceed, if the proposal was not acceptable to the Band; and (d) to withhold consent if the proposal was improvident. If so instructed, Canada should have referred the matter to the Secretary of State for the Colonies to determine whether the Band was entitled to the lands. Alternatively, if Canada was unable to secure IR 15, 17, and 18 for the Band, it should have acquired and provided other reserve lands to the Band or compensated the Band for the loss of IR 15, 17, and 18 so that it could acquire lands on its own account. Since Canada failed to do any of these things, the Commission concluded that it had breached its fiduciary obligations to the ancestors of the present-day Esketemc First Nation.

Response: In June 2005, government rejected recommendation, stating that Canada had no obligation or power to create reserves for the First Nation, and that the Commission’s conclusions "are largely premised on findings ... that the First Nation had aboriginal rights and title to the land at issue."

To download the report - PDF