Long Plain First Nation [Loss of Use]
March 2000 In March 2000, the Indian Claims Commission (ICC) found that the federal government is lawfully obliged to compensate the Long Plain First Nation of southern Manitoba for the loss of use of reserve land that was not provided until 118 years after it was promised. The report, the result of the ICC's longest running inquiry, was released at a media event in Winnipeg. The Commission concluded that, by taking 118 years to settle the outstanding treaty land entitlement, the government, regardless of its knowledge or motives at the time, had breached its lawful obligation to ensure that the terms of Treaty 1 were met. The Commission found that general common law principles regarding compensation should apply to treaty land entitlement claims. These general principles seek to provide a substitute both for the loss of the value of the property and for the loss of the opportunity to use it. With the Long Plain First Nation, the federal government negotiated a substitute for value of the property only. This finding is significant because, to date, the government has not considered lost opportunity costs as subject to compensation in treaty land entitlement claim negotiations where First Nations have waited many years to settle claims to outstanding land. The claim dates back to 1876, when the Long Plain Band split from the former Portage Band and a reserve was set aside for the new group on the west bank of the Assiniboine River in southern Manitoba. Treaty 1 promised 160 acres for each family of five and, using that formula, the government surveyor set aside enough land for 165 people. Yet federal documents tabled with the Commission suggest that the surveyor planned to set aside enough land for 197 people and the treaty paylist from 1876 shows that he should have known that at least 205 people were receiving treaty payments. This created a shortfall of treaty land, one that lasted until Canada compensated the First Nation for the outstanding land in a 1994 agreement. Although Treaty 1 does not specify when that land must be provided, and although the government's initial provision of some treaty land was timely, the Commission found that the 118-year delay in providing the full measure of treaty land amounts to a breach of treaty. The Commission further concluded that, regardless of the government's motives or knowledge, it also breached its fiduciary obligations to the First Nation when it failed to set aside sufficient land in accordance with the treaty. In 1994, when the First Nation and the government agreed to settle a treaty land entitlement claim for the outstanding land, they also undertook that, if they could not agree on compensation for loss of use, they could refer two questions to the Commission for inquiry. First, is the federal government lawfully obliged to compensate the First Nation for the loss of use of the shortfall acreage? Second, if it is, how much compensation for its loss of use is outstanding? The report deals with the first question. The federal government has not yet responded to the ICC's recommendations. Response: In August 2000, the government rejected the recommendations made in the March 2000 report. Download Government Response Click Here For the Report |
