Cowessess First Nation [QVIDA]

Muscowpetung First Nation, Pasqua First Nation,
Standing Buffalo First Nation, Sakimay First Nation,
Cowessess First Nation, Ochapowace First Nation

February 1998

This inquiry arose from the construction of dams by the Prairie Farm Rehabilitation Administration (PFRA) on Echo Lake, Crooked Lake, and Round Lake along the Qu'Appelle River in the early 1940s. The dams were built to store water for agricultural purposes following the severe drought conditions experienced in many areas of the Prairie Provinces during the preceding decade. Although the dams achieved their purpose, they also had the effect of flooding and damaging reserve lands of the six Qu'Appelle Valley Indian Development Authority (QVIDA) bands participating in this inquiry: the Muscowpetung, Pasqua, Standing Buffalo, Sakimay, Cowessess, and Ochapowace First Nations.

Before the dams were built, Indian Affairs sent out an engineer, P.A. Fetterly, to assess the damages that the dams would cause, and negotiated compensation to be paid to the affected bands on the basis of that assessment. However, although it was recognized that their reserves would be damaged, no compensation was paid to the Muscowpetung or Pasqua Bands at that time. Standing Buffalo also did not receive compensation, since it was not foreseen that the Band's reserve lands would be affected by the dams. The remaining three bands received compensation totalling $3,270, and a wooden bridge was constructed to replace a natural ford that had previously been used by the Sakimay Band. It is clear that none of the bands were consulted or consented to the construction of the dams. Ultimately, the flooding, together with associated capillary action and salinization, had serious negative effects on the bands' economic, social, and cultural activities in the Qu'Appelle Valley. In particular, the flooding destroyed much of their haylands.

In late 1972, the PFRA determined that it had not compensated either Muscowpetung or Pasqua for damages caused by the Echo Lake dam, and it had become clear that Standing Buffalo too had suffered adverse effects. Negotiations commenced in September 1973, and on November 16, 1976, the Bands offered to accept a lump-sum settlement of $265,000, in consideration for a permit authorizing future use and occupation of reserve lands for flooding purposes as well as a release of past, present, and future damages caused by the structure. After initially objecting to this proposal, the PFRA concluded that the sum of $265,000 could be justified, and the Bands passed Band Council Resolutions confirming the settlement. The settlement was approved on July 7, 1977, and payments were deposited to the credit of the respective Bands.

Eventually, all three Bands reversed their positions and issued rescinding Band Council Resolutions on the basis that the "perpetual" nature of the settlement amounted to a surrender. Moreover, the Department of Regional Economic Expansion, which had assumed responsibility for the PFRA, and Indian Affairs were unable to agree on the lands contemplated by the settlement, and flooding permits were never issued. Nevertheless, the evidence showed that the Muscowpetung, Pasqua, and Standing Buffalo Bands had spent all or virtually all of the sums paid to them under the settlement. The Sakimay, Cowessess, and Ochapowace First Nations were also dissatisfied with their treatment and particularly with the PFRA's stated intention to continue using the dam sites on Crooked and Round Lakes, as well as flooded reserve lands, without the First Nations' consent. To lend greater force to their concerns, the six First Nations, together with the Piapot and Kahkewistahaw First Nations, formed QVIDA and submitted a claim to Indian Affairs.

In its report issued in February 1998, the Commission concluded that, even if section 34 of the 1927 Indian Act enabled the Superintendent General of Indian Affairs to authorize the use and occupation of reserve land for flooding purposes, the rights actually conveyed, based on the reasoning of the Supreme Court of Canada in Opetchesaht Indian Band v. Canada, were too extensive, exclusive, and permanent to be authorized under the section. That being the case, the PFRA trespassed on the reserve lands of all six participating bands from the early 1940s until at least 1977, and continues to trespass on the Sakimay, Cowessess, and Ochapowace reserves to this day.

For the same reasons that it was not open to Canada to authorize the use and occupation of reserve lands for flooding purposes under section 34 of the 1927 Indian Act, Canada could not authorize such use and occupation under subsection 28(2) of the 1970 Indian Act as part of the 1977 settlement discussions with Muscowpetung, Pasqua, and Standing Buffalo. The 1977 settlement was void from the beginning under subsection 28(1) of the Indian Act, either entirely or at a minimum with respect to that portion of the settlement relating to the permits and damages for future use and occupation looking forward from 1977. The effect of these conclusions is that the PFRA remained in trespass on the Muscowpetung, Pasqua, and Standing Buffalo reserves after 1977. The question of whether any pre - 1977 trespasses were settled depends on whether the band councils had the power to enter into binding settlements with respect to the unauthorized use and occupation of reserve lands and whether the release clause in the 1977 Band Council Resolutions can be severed from those portions of the agreement rendered void by subsection 28(1) of the Indian Act.

The Commission recommended that, unless Canada chooses to remove the control structures at Echo Lake, Crooked Lake, and Round Lake, it should immediately commence negotiations to obtain, whether by surrender or expropriation, the interests in land it requires for flooding purposes from all six reserves. Canada should also commence negotiations to determine the remaining compensation, if any, payable to the Sakimay, Cowessess, and Ochapowace First Nations for flooding damages since the 1940s, taking into account the $3,270 received by those First Nations as compensation in 1943. Similarly, Canada should commence negotiations to determine the remaining compensation, if any, payable to the Muscowpetung, Pasqua, and Standing Buffalo First Nations for flooding damages to those reserves, again taking into account the compensation of $265,000 paid to the three First Nations under the terms of the 1977 settlement. Whether the settlement entered into by the Band Councils in relation to damages prior to 1977 is binding on the respective Bands, and whether this part of the agreement can be severed and can operate independently to settle the damages arising during that period, are issues the Commission recommended the parties should negotiate.

The rescission of the 1977 Band Council Resolutions by Muscowpetung, Pasqua, and Standing Buffalo is academic if the 1977 settlement was entirely void. However, to the extent, if any, that the 1977 settlement can be severed and remain enforceable in relation to pre - 1977 damages for trespass, it would be contrary to basic principles of contract law to permit the First Nations to unilaterally withdraw from the settlement without the concurrence of the PFRA.

Response: In December 1998, the government accepted the recommendations made in the February 1998 report.

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