Backgrounder

On July 6, 1994, the Indian Claims Commission agreed to conduct an inquiry into the specific claim submitted by the Homalco Indian Band that was rejected by the federal government.

In the summer of 1888, the Indian Reserve Commissioner, Peter O'Reilly, and surveyor Ashdown Green consulted the Chief and the majority of band members regarding the lands they wished to obtain near Bute Inlet (north of Powell River on the mainland, across from Campbell River on Vancouver Island). O'Reilly allocated six parcels of land to the Band, and he indicated the acreage and described the boundaries in a decision report dated August 10, 1888. One of these parcels of land would become Aupe Reserve No. 6.

Although this report stated that the "Aup" reserve comprised 25 acres, the surface area of the reserve, after it was surveyed, was only 14 acres. This discrepancy of 11 acres is only one of the items in dispute.

The claim also involved an 80 additional acres of reserve land requested by the Band in September 1907. This land, adjacent to Aupe Reserve No. 6, was more suitable for cultivation, and the Indians were already using part of it as a burial ground. However, this request was denied.

Lastly, the inquiry also addressed the schoolteacher's pre-emption application. In 1908, William and Emma Thompson took over the band school on the Aupe Reserve. The Band had spent a considerable amount of money building this school since they believed that the land was located within the boundaries of Reserve No. 6. Shortly after his arrival, Mr. Thompson inquired about the pre-emption process. To obtain a Crown grant, he had to live on the land in question at least six months of the year for three years. He believed that the fact that he was living in the school itself enabled him to meet this condition. In February 1910, Thompson submitted an official application for 160 acres of land abutting the Aupe Reserve No. 6, stating - and thereby committing fraud - that this land was unoccupied, that it was not part of Crown reserve lands and that it was not woodland as defined in the Land Act. The Homalco Band immediately asked Indian Agent McDonald to intervene, but this did not prevent Thompson from receiving a pre-emption certificate in the spring.

In September 1912, the McKenna-McBride Royal Commission was given the mandate to adjust the acreage of British Columbia Indian reserves. While in Church House, the Commission heard the grievances of Homalco Band members and of Thompson himself. In its interim report No. 84, submitted August 12, 1915, the Commission recommended that 29.7 acres of reserve land be granted to the Homalco Band.

The facts surrounding the claim in question are, in the opinion of the Indian Claims Commission, extremely disturbing. In the Specific Claims Policy, the Government of Canada states that it is prepared to recognize claims based on a "[f]raud in connection with the acquisition or disposition of Indian reserve land by employees or agents of the federal government, in cases where the fraud can be clearly demonstrated." Mr. Thompson was a federal government employee, and he made fraudulent claims in order to acquire Indian land.

The pre-emption application was indeed for "settlement" land, not for "reserve" land. However, this does not fully explain why this case was rejected, which would be contrary to the very intent of the Policy, namely, to settle legitimate claims that have already dragged on for too long. The criteria set out in this policy are only examples; they do not by any means provide a comprehensive list.

The Commission also concluded that, in the case of Mr. Thompson's pre-emption application, the Government of Canada breached its obligation, as a trustee, to protect the Band's settlement lands. It also violated this obligation by not discharging the teacher sooner, which would have prevented him from using the school to meet the residency conditions. If the Thompsons had not been able to pursue their application and constantly block the Indians' efforts to protect their settlement lands, the Band could have received the 29.7 acres recommended by the McKenna-McBride Commission, instead of only 20.08 acres.

During its inquiry, the Commission examined an abundance of information, visited the reserve in question, and listened to arguments from the lawyers for both parties.