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21/12/2001

ICC Recommends Canada Accept Esketemc Claim for Negotiation

Ottawa (December 21, 2001) - The Indian Claims Commission has recommended that the federal government accept for negotiation a land claim by the Esketemc First Nation. Commissioners Daniel Bellegarde and Sheila Purdy announced the decision in a report released today.

The First Nation maintains that certain lands in British Columbia's Alkali Lake area, about 290 kilometres northeast of Vancouver, were either wrongfully disallowed or improperly reduced in size by the federal and provincial governments in 1923.

The First Nation contends that the McKenna-McBride Commission - a joint Royal Commission of federal and British Columbia representatives established in 1912 to conduct investigations into the reserve requirements of British Columbia's aboriginal population - recognized the band's desperate need for additional lands by recommending that certain lands already inhabited and being farmed by band members should become reserves. Unknown to the First Nation at the time, however, a further review by the two governments, known as the Ditchburn-Clark review, recommended that two of these parcels, already designated by the McKenna-McBride Commission as Indian Reserve 15 and 17, be disallowed as reserves, and that the third, IR 18, be severely reduced. It was only decades later that members of the Esketemc First Nation learned that the two governments had agreed not to confirm the lands in question as reserves. The First Nation claims that these lands had already become reserves in law and should have been preserved for the band.

The Esketemc First Nation (which was known as the Alkali Lake Band when the events in question occurred) first submitted its claim to Canada in 1992. The claim was rejected; further submissions over the next seven years produced the same result. On June 17, 1999, the First Nation asked the Indian Claims Commission to conduct an inquiry into the federal government’s reasons for rejecting their claim.

Commissioners Daniel Bellegarde, Carole Corcoran and Sheila Purdy formed the panel that heard evidence from the Esketemc community, received written arguments, and heard oral submissions from the First Nation and the government of Canada. Today's report, however, reflects the opinions of only two of the commissioners, Commissioner Corcoran having passed away suddenly on February 15, 2001.

"This claim and the issues it raises - in particular reserve creation and the fiduciary relationship between Canada and non-Treaty First Nations of British Columbia - is rooted in a period of tremendous uncertainty in relations among the British Columbia government, federal government and First Nations," observed Commissioner Sheila Purdy.

The report points out that the history of reserve creation in B.C. from 1850 to 1924 is both lengthy and complex: "In the present case. . .the evidence, in our view, did not fully explore factual issues such as colonial reserve creation policy, the role of the Allied Tribes and other Indian organizations in the reserve allocation process in British Columbia, or the subsequent reference of the reserve and aboriginal title issues to [Parliament] in 1926."

The report concludes that the Government of Canada owes an outstanding lawful obligation to the Esketemc First Nation. "We base our conclusion on fiduciary principles," commented Commissioner Bellegarde. "We believe that Canada breached its obligations to the ancestors of the present-day Esketemc First Nation when, in the circumstances that followed the Report of the McKenna-McBride Commission, the government failed to act in the best interests of the First Nation and ensure that its needs for reserve lands were met."

The Commission found that, when the government of Canada agreed with British Columbia's proposal in the Ditchburn-Clark review to disallow IR 15, 17, and reduce IR 18 in 1923, it failed to adequately scrutinize and assess the merits of the proposal from the band's point of view, to inform the band of the proposal or provide it with information as to the alternatives. Although Canada knew that the proposal would not be acceptable to the band, it neglected to seek the band's instructions as to how to respond. The Commission concluded that the proposal was improvident and that the federal government breached its fiduciary obligation to the band by approving it.

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 backgrounder

To download the report PDF