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Backgrounder

In the summer of 1876, Canada sent a delegation headed by Treaty Commissioner Alexander Morris to meet with "the Plain and Wood Cree and the other Tribes of Indians" at Fort Pitt, Fort Carlton and Battle River. The purpose of the meetings was to negotiate Treaty 6. The following year, Chief Alexis Kees-kee-chee-chi executed an adhesion to Treaty 6 on behalf of the ancestors of the present-day Alexis First Nation.

To fulfill the Crown's obligations to provide reserve land, IR 133, comprising 23 square miles, was laid out for the Alexis Band on the north shore of Lac Ste Anne in October 1880. The reserve is situated approximately 60 kilometres northwest of Edmonton, Alberta.

In October 1999, the First Nation submitted a claim for breach of statute, treaty and fiduciary duty to the federal government. The claim pertained to rights of way granted to Calgary Power (now TransAlta Utilities) in 1959, 1967 and 1969. Receiving no response, the First Nation requested the Indian Claims Commission to conduct an inquiry into its claim, arguing that the government's lack of response amounted to a rejection. In April 2000, the Commission deemed the claim constructively rejected, finding that delays by Canada were tantamount to a rejection and, because of this, the ICC had jurisdiction to review the claim. In January 2001, the federal government completed its review and informed the First Nation that the claim was rejected.

The specific claim of the Alexis First Nation concerns the federal Crown's grant of three rights of way to Calgary Power on Alexis IR 133 during the 1950s and 1960s. The claim alleges that Canada failed to protect the interests of the Alexis Band in three separate transactions in 1959, 1967 and 1969.

The first right of way, granted in 1959, concerned an electrical distribution line that served the Alexis Day School on the reserve. The Band was promised jobs to clear the land but received no compensation for the right of way. The second distribution line right of way, granted in 1967, extended from the 1959 line south to a location outside the reserve and was initially intended to serve cottages on West Cove on the south shore of Lac Saint Anne. It also brought electricity to the houses on the Alexis reserve. The Band received compensation for the right of way in the amount of $195. Both the 1959 and 1967 distribution line permits were granted pursuant to section 28 (2) of the Indian Act, and both permits required Band Council consent.

In 1969, Calgary Power received a permit from the Crown for a right of way to build a high voltage transmission line across the reserve, serving only communities outside the reserve. It was approved through the corporation's enabling legislation and the expropriation provisions in section 35 of the Indian Act. The Band was not required to provide consent but did pass a Band Council Resolution agreeing to the terms of the transaction. The Band received a one-time lump sum payment of $4,296 in compensation and Band members were promised jobs clearing the right of way.

The ICC found that during the 1950s and 1960s the Alexis First Nation was vulnerable due to the conditions on the reserve and the Band's unequal bargaining position with Calgary Power. The reserve was described as being without electricity, roads and infrastructure. Employment prospects were grim as there was little economic development within the First Nation and the leaders of the community lacked formal education and a knowledge of English. It is against this backdrop of vulnerability that the nature and scope of Canada's fiduciary obligation to protect the best interests of the Band was assessed.

In the 1959 and 1967 grants for rights of way, the ICC found that because of the direct, ongoing benefit of electricity the Band received from the transactions, the informed consent of the Band, and the absence of any evidence that compensation for the 1967 line was inadequate, Canada had no further duty to try to obtain better terms for the Band.

In the 1969 transaction, the Alexis First Nation received a one-time, lump payment for a right of way for a major transmission line across the reserve that, unlike the small distribution lines, did not provide an ongoing benefit to the First Nation. The Commission found that the Crown was aware in 1969 that a lump sum payment was inadequate and that fairness demanded that the Band receive annual revenues for what amounted to a perpetual interest. Given the Crown's knowledge at the time, it was reasonable to conclude that the Crown would not have agreed to a one-time, lump sum agreement for itself.

The ICC determined that the Crown breached a number of fiduciary duties in 1969, in particular the duty to prevent an exploitative arrangement, and recommended that the Alexis First Nation's claim be accepted for negotiation under Canada's Specific Claims Policy.

March 20, 2003