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05/10/2006
ICC Concludes Its Inquiry Into Phase II of the Cowessess First Nation 1907 Surrender Claim
Ottawa (October 5, 2006)–In a report issued today, the Indian Claims Commission (ICC) concludes phase II of its inquiry into the Cowessess First Nation’s surrender of a portion of Cowessess Indian Reserve (IR 73), in Saskatchewan, in 1907. The panel of Commissioners for this inquiry did not reach a unanimous decision: two Commissioners found that Canada did not breach its fiduciary obligation to the First Nation, and one Commissioner recommended that Canada accept the claim for negotiation.
The inquiry focused on whether the Crown breached its fiduciary duty in the surrender of the southern portion of the Cowessess Indian Reserve, IR 73. The Cowessess Band lived, farmed and raised livestock in the north of the reserve and used the southern portion to cut wild hay.
Commissioner Sheila Purdy and Commissioner Jane Dickson-Gilmore concluded that the Crown did not owe an outstanding lawful obligation to the First Nation. Commissioner Purdy, Chair of the panel, commented: "The evidence falls short of demonstrating that the Crown breached its fiduciary duty in taking the 1907 surrender. The band members were the most successful farmers and ranchers in the region. They had strong, knowledgeable leaders, including a chief who had previously dealt with surrender proposals. The Crown discussed a surrender of the southern hay lands with the Band two years before the surrender vote. At the 1907 meeting, the terms of the surrender were explained and the meeting adjourned to give the voters time to make a decision. Ultimately, they voted in a manner that reflected their various priorities." As a result, Commissioners Purdy and Dickson-Gilmore recommend that the claim of the Cowessess First Nation not be accepted for negotiation under Canada’s Specific Claims Policy on the single issue of fiduciary duty.
Commissioner Alan Holman found that since the Crown owed a fiduciary duty to the Band, it should have acted in its best interests in protecting the reserve land. He notes: "The Crown did not even consider what the impact of the surrender on the Band would be. The statistics show that the Band lost a significant part of its economic engine and that until 1904, Crown officials were certainly aware of the value of hay lands to the Band. There is no evidence that the Crown scrutinized the surrender to ensure that it was not an exploitative bargain. Only the Crown and the settlers benefitted from this surrender; apart from a short term infusion of cash, the Cowessess Band did not." Commissioner Holman therefore recommends that Canada accept the claim of the Cowessess First Nation and negotiate a settlement under Canada’s Specific Claims Policy on the single issue of fiduciary duty.
The Cowessess First Nation originally submitted a specific claim to the Department of Indian and Northern Affairs (DIAND) in 1981, alleging that the surrender was invalid in that it did not meet the requirements of the Indian Act. The claim was rejected by Canada in March 1994, and in August 1996, at the request of the First Nation, the ICC began an inquiry into the rejected claim. The inquiry was split into two phases.
The panel for phase I determined that a valid surrender vote had not been obtained and recommended that Canada accept the claim of the First Nation. Canada rejected this recommendation in March 2002, and in October 2002, the First Nation requested that the ICC proceed with phase II of the inquiry, on the grounds that the Crown had breached its fiduciary duty. A new panel was struck for phase II.
The ICC was established in 1991. Its mandate is: to inquire, at the request of a First Nation, into specific claims that have been rejected by the federal government or where the First Nation disputes the compensation criteria being considered in negotiations; and to provide mediation services on consent of the parties at any stage of the claims process.
To download the report - PDF 