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Backgrounder

In 1994, the Long Plain First Nation and the federal government agreed to settle a treaty land entitlement claim for land that was promised under Treaty 1 but not provided. At the time, they also undertook that, if they could not agree on compensation for loss of use, they could refer two questions to the Indian Claims 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 issued by the Commission today deals with the first of these questions.

The Long Plain claim is significant because, to date, the federal 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.

In the present inquiry, after careful consideration of the issues, the Indian Claims Commission found that the federal government has a lawful obligation to compensate the Long Plain First Nation for the loss of use of the treaty land the government surveyor failed to include in the Long Plain reserve in 1876.

Breach of Government's Obligations

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.

The Commission found Canada liable for the loss of use of the land because "the appropriate amount of land has not been provided in a timely way in accordance with the terms of the treaty."

While Treaty 1 does not specify when that land must be provided, and while the government's initial provision of some treaty land was timely, the Commission found that "Canada's failure to provide the full measure of treaty land in this case until 118 years after the fact falls short of any reasonable standard of timeliness." This failure amounts to a breach of treaty.

The Commission further concluded that, regardless of the federal 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. This decision reflects the Supreme Court of Canada's repeated recognition that the federal government has a fiduciary, or trust-like, obligation to act in the best interests of First Nations, particularly regarding reserve and treaty land.

Canada argues that the surveyor's failure was an " honest mistake" that could not have been corrected with the knowledge available at the time. However, the Commission found that this question relates to how much compensation the First Nation should be entitled to and not to whether Canada owes the First Nation an outstanding lawful obligation in the first place.

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.

Should the federal government act on the Commission's recommendation on the first question under inquiry, the First Nation and the government will begin negotiation of a settlement. If they are unable to agree on compensation, the First Nation may return to the Commission for a second stage of inquiry to determine fair compensation for the loss of use of the treaty land.