Completed Inquiries – Reports Released

01/03/2005

James Smith Cree Nation [IR 100A] – March 2005

In the 1880s, the Cumberland Band (now known as the Cumberland House Cree Nation) was allotted two reserves under the terms of Treaty 5: Indian Reserve (IR) 20 and IR 100A. In the view of Canada and the James Smith Cree Nation, the Cumberland Band members living at IR 100A evolved into a new band under the leadership of Peter Chapman, separate from the original Cumberland Band living at IR 20.

In 1902, Canada took a surrender of 20,080 acres from IR 100A, signed by two men who had allegedly transferred to the reserve in 1896 from the Chakastaypasin Band and, in 1903, Canada subdivided the surrendered land for sale. Most of this land was purchased by government officials who were investigated in 1913 and found to be in breach of their duties. All of the land was sold for less than its appraised value. The residents of IR 100A were amalgamated with the James Smith Cree Nation.

In 1991, the James Smith Cree Nation submitted a specific claim regarding the surrender and sale of the southern portion of IR 100A. The First Nation claimed that Canada breached its statutory, treaty, trust and fiduciary duties in taking the alleged surrender and in its unlawful disposition of IR 100A. In 1998, Canada rejected the First Nation’s claim regarding the validity of the surrender, while accepting for negotiation an outstanding lawful obligation with respect to the sale of the surrendered lands.

In May 1999, the Commission accepted the request of the James Smith Cree Nation to conduct an inquiry into the surrender and subsequent sale of IR 100A. In February 2000, the Cumberland House Cree Nation requested that the Commission conduct an inquiry into its interests in Cumberland IR 100A. Following discussions between both First Nations, the Commission decided to conduct a single fact-finding process with respect to the history of IR 100A, while maintaining separate inquiries for each First Nation.

The Commission panel found that IR 100A was set aside for the Cumberland Band, and that a separate band was not created at any point in time at IR 100A. The Cumberland Band that adhered to Treaty 5 resided at two locations: IR 20 and IR100A. Canada was required, under treaty, to seek and obtain the consent of the whole of the Cumberland Band to dispose of its interest in its reserve lands. On the evidence, no such consent was sought or obtained.

Canada’s failure to have sought the informed consent of the whole of the Cumberland Band to the transfer of people into IR 100A, to the surrender of the southern portion of IR 100A, and to the agreement to amalgamate its interest in IR 100A with the James Smith Band at IR 100 is a breach of treaty, statute and fiduciary duties.

With respect to the issues dealing with the land sales, the Commission panel found that, upon the surrender of reserve land, Canada has treaty, statutory and fiduciary duties in disposing of this land by sale. Canada has admitted its breach of fiduciary duties in accepting prices below the appraised value and for failing to enforce the terms of sale. Canada has also admitted it breached its statutory duty for its failure to have immediately dismissed its employee for his conduct involving the sale of IR 100A, and for its failure to have cancelled the sales attributable to him. The First Nation argued that the purchasers of IR 100A lands engaged in fraudulent activities to obtain those lands. However, in the absence of clear and unequivocal evidence, the panel is unable to make a finding of fraud.

The panel found that there was a breach of Canada’s obligations in these matters, but the obligations are owed to the Cumberland House Cree Nation. The Commission recommended that the lawful obligations that arise from Canada’s dispositions of Indian Reserve 100A be accepted for negotiation with the Cumberland House Cree Nation.

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