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Backgrounder
The Commission accepted the Kawacatoose First Nation's request for an Inquiry into their Treaty Land Entitlement claim on May 6, 1994. The first meeting of all parties occurred on July 8, 1994 in Saskatoon. Following this first meeting, Commission Co-Chair James Prentice, Q.C. and Commissioner Roger Augustine conducted a series of sessions over a period of seven (7) months to hear from the Kawacatoose First Nation community, research experts, representatives of DIAND, and past negotiators of the 1992 Saskatchewan Framework Agreement. There were three (3) questions placed before the Commission by agreement of the parties. The fust required the Co~ission to inquire into the historical facts of the Kawacatoose First Nation's population. In coming to their conclusion on this issue, the panel of Commissioners relied heavily upon the statements ma& by the elders of the Kawacatoose First Nation. The panel of Commissioners came to the conclusion that the 13 members of two families paid at Fort Walsh in 1876, a subject of dispute in this inquiry, were members of Kawacatoose and not the Assiniboine Poor Man Band. The second question before the Commission concerned the nature and extent of the Kawacatoose First Nation's Treaty Land Entitlement. This inquiry, having followed closely behind Fort McKay, benefitted fiom the Commission's principled findings in Fort McKay. As in the Fort McKay inquiry, the Commission's task was to determine the full and proper meaning of the treaty so as to determine who should be counted and when they should be counted for land entitlement. At issue in this inquiry was Treaty 4. Treaty 4 provides a land calculation formula of one square mile for each family of five however, in 1876 the Kawacatoose First Nation "had not become the neat, self-contained units that would have better suited Canada's administrative convenience". Consequently, not every Indian entitled to be included in an entitlement calculation was included. Applying well-defined principles of treaty interpretation and employing the principles developed in the Fort McKay inquiry, including: - The purpose, meaning and intent of the treaty is that each Indian band is entitled to a certain amount of land based on the number of members, and each Indian is entitled to be included in an entitlement calculation as a member of an Indian band.
- The treaty conferred upon every Indian band the entitlement to receive additional reserve land for every Indian who adhered to the treaty and joined that band subsequent to the date of first survey (ie. "late adherents").
- The treaty conferred upon every Indian band the entitlement to receive additional reserve land for every Indian who transferred from one band to another, provided that the band from which that Indian transferred had never received land on his or her account (ie. "landless transfers").
The Commission did conclude that Canada has not satisfied its treaty obligation to provide reserve land to the Kawacatoose First Nation. Specifically, the treaty land entitlement claim of Kawacatoose, including individuals on the base paylist, absentees and arrears, new adherents, and landless transfers should be for 277 people. This population gives rise to a treaty land entitlement of 35,456 acres. When the fust survey of 27,200 acres is set off against this treaty land entitlement, the result is that the Kawacatoose First Nation is owed an additional 8, 526 acres, or 13.32 square miles. The third question placed before the Commission dealt with the applicability of the 1992 Saskatchewan Framework Agreement to the Kawacatoose First Nation, even though the First Nation was not a signatory to the Agreement. The Commission was unable to agree with the First Nation's submissions that the Agreement, by its terms, imposes a fiduciary or contractual obligation upon Canada to accept the Kawacatoose claim for negotiation. Nevertheless, the Commission did conclude that Canada should consider itself honour bound to extend the principles of settlement contained in the Agreement to the Kawacatoose First Nation, once the First Nation has substantiated its treaty land entitlement claim. Having reached its conclusions on the three questions placed before it, the Commission recommends: - The that treaty land entitlement claim of the Kawacatoose First Nation be accepted for negotiation under Canada's Specific Claims Policy.
- In accordance with section 17.03 of the Saskatchewan Framework Agreement, that Canada and Saskatchewan support an extension of the principles of settlement contained in that agreement to the Kawacatoose First Nation.
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