Fort McKay First Nation [Treaty Land Entitlement]

December 1995

This inquiry dealt with the issue of outstanding treaty land entitlement (TLE) for the Fort McKay First Nation of northern Alberta. The First Nation claimed that Canada had not fulfilled its obligation in Treaty 8 to set aside one square mile of reserve land per family of five (or 160 acres for every member of the Band). The First Nation asserted that enough land was set aside for 105 individuals in 1915, but that it was entitled to additional land because another 54 individuals described as "landless transfers" and "late adherents" joined the band after the date of the first survey (DOFS) in 1915.

In 1983, Indian Affairs issued policy guidelines stating that every treaty Indian is entitled to be included in a TLE calculation and that absentees, late adherents, and landless transfers should be counted for the purposes of determining the amount of land to be set aside as reserve for the band under treaty.

However, in 1993 the government unilaterally changed its policy and the First Nation was informed that Canada would no longer count these additions for TLE purposes. Canada now views treaty land entitlement as a band's collective right that crystallizes on the date of first survey of the reserve. According to this view, unless there is a DOFS shortfall owed to the band, new additions to the band do not result in an outstanding land entitlement.

As an aid to interpreting the treaty, Canada's historical practices and policies on TLE claims were examined in considerable detail. Since Treaty 8 contains no stipulation that individual Indians must be members of a band on the date of the first survey in order to be included in an entitlement calculation, the Commission concluded that there was nothing in the treaty to support Canada's argument that additions to the band should not be counted after the date of first survey. The Commission found that the Crown was obliged to provide land for all Indians in Treaty 8 when they became members of a band or when they elected to take "land in severalty."

In its final report, released in December 1995, the Commission recommended that the claim be accepted for negotiation under the Specific Claims policy. The Commission concluded that Canada owes a lawful obligation to the Fort McKay First Nation to provide treaty land for all members, including absentees, late adherents, and landless transfers.

Response: In April 1998, the government accepted the claim for negotiation.

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Click Here for the Report