Backgrounder

Treaty 8 is one of eleven numbered treaties signed between l871 and l908 which involved the surrender of aboriginal title to vast territories covering northern Ontario, Manitoba, Saskatchewan, Alberta, northeastern British Columbia, and the Mackenzie District of the Northwest Territories. In exchange for the surrender of aboriginal title to these lands, Canada promised to provide reserves to the Indians and other treaty benefits such as annuities, schools, cattle, agricultural implements for farming, and the right to hunt and fish throughout their traditional territory.

Treaty 8 does not state who should be included in the calculation of a band's land entitlement and what date should be used for the purpose of counting the band's population and calculating the area of land held as a reserve.

The procedure used to determine reserve size was for the government surveyor to count the number of band members on the treaty annuity paylists at the time when the first survey of reserve was carried out. Where the surveyor provided the full amount of land to the band based on its population at that time, the Crown's treaty obligations to provide reserve land to the band would be fully discharged. However, complications arose where the government failed to provide the band with the full amount of land on that date or where the treaty annuity paylists did not accurately disclose the true census of the band involved.

The difficulties of interpretation of the treaties, have been compounded by amendments to the constitution. Prior to l930, the federal Crown possessed all administrative control and ownership of lands and resources in the provinces of Saskatchewan, Alberta and Manitoba. Therefore, it could unilaterally set aside lands as reserve for bands without consultation from the provinces because it owned the land and resources.

In l930, the three prairie provinces entered into the Natural Resources Transfer Agreements with the federal government which provided for the transfer of administration and control over land to the provinces. In order to enable the federal government to fulfil its treaty obligations to the Indians after l930, the agreements provided that the province was obligated to set aside reserves out of unoccupied provincial Crown lands at the request of the Superintendent General of Indian Affairs.

This constitutional amendment complicated matters because the agreements altered the bilateral nature of the treaty relationship between the federal Crown and First Nations by requiring provincial consent to the selection and survey of reserves to fulfil treaty land entitlement after l930. Accordingly, disputes between Canada and the provinces on the nature and extent of treaty obligations have only served to thwart the settlement of treaty land entitlement claims.