Completed Inquiries – Reports Released

01/11/1996

Kahkewistahaw First Nation [Treaty Land Entitlement] - November 1996

November 1996

This inquiry dealt with the issue of outstanding treaty land entitlement for the Kahkewistahaw First Nation of southern Saskatchewan. The First Nation claimed that Canada had not fulfilled its obligation under Treaty 4 to set aside reserves equal to 128 acres for each member of the First Nation.

Kahkewistahaw adhered to Treaty 4 in 1874, and, in the ensuing seven years, surveyors were sent out on three separate occasions to survey a reserve for the First Nation. In 1876, an area of 41,414 acres was surveyed but the First Nation never settled on the surveyed land, and thus never accepted this land as its reserve. In 1880, Kahkewistahaw requested that a reserve be surveyed for his people but, although evidence indicates that survey work was done, no plan of survey has ever been located. In 1881, two areas were surveyed for the First Nation resulting in two reserves, totalling 46,816 acres. They were eventually confirmed by Order in Council in 1889 and provided sufficient land for 365 people under the Treaty 4 formula of 128 acres per person. The complicating factor in this inquiry was the fluctuating population of the First Nation in the years following the signing of Treaty 4. According to the treaty annuity paylists, the number of people paid with Kahkewistahaw grew from 65 in 1874 to 266 in 1876 and 430 in 1880, before falling sharply to 186 in 1881.

The dispute between Canada and the First Nation centred on the appropriate date for calculating the First Nation's treaty land entitlement and the appropriate treaty annuity paylist to use as the starting point in calculating that entitlement. In its final report, released in November 1996, the Commission stated that, as a general principle, a band's population on the date of first survey should be used to calculate treaty land entitlement. A completed survey does not necessarily confirm, however, that the "first survey" of a band's reserve has occurred. The first survey can be identified by determining whether the reserve was surveyed or located in conformity with the treaty, and whether the survey or allotment was acceptable to Canada and to the band. The Commission also stated that the treaty annuity paylist provides useful information regarding a band's population at date of first survey, but it is simply a starting point for determining the band's population for treaty land entitlement purposes; all available evidence that tends to establish or disprove the membership of certain individuals in the band should be considered and weighed. The appropriate "base paylist" to use as a starting point for calculating a band's treaty land entitlement is the one which provides the most reliable objective evidence of the band's population at the date of first survey.

In this case, the Commission found that the 1881 survey was the true "first survey" for Kahkewistahaw and that the most reliable objective evidence of Kahkewistahaw's population at the date of first survey was the 1881 paylist, subject to adjustments for absentees and "late additions," such as new adherents to treaty and transferees from landless bands. Using the 1881 base paylist as the starting point, the evidence showed that Kahkewistahaw had a population of 186 at the date of first survey, together with 70 absentees and arrears, for a preliminary total of 256. Since Kahkewistahaw received enough land for 365 people, the Commission concluded that the First Nation had failed to establish that the Government of Canada owed an outstanding lawful obligation to provide land to the First Nation under treaty.

Response: No substantive response from government required.

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