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01/07/1998

Two Land Claims Accepted by Department of Indian Affairs Based on Strength of Reports by Indian Claims Commission

Ottawa (January 7, 1998) - The Minister of Indian Affairs and Northern Development announced on December 19, 1997 that the Department would accept for negotiation two Saskatchewan land claims. This acceptance was based on the strength of recommendations from the Indian Claims Commission (ICC or the Commission) that the claims of the Kahkewistahaw and Moosomin First Nations in Saskatchewan be considered valid. The recommendations of the Commission are contained in reports dealing with the unlawful surrenders of reserve land from these two First Nations in 1907 and 1909. In accepting the ICC's recommendations, the Honourable Jane Stewart, Minister of Indian Affairs and Northern Development, noted that the reports of the Indian Claims Commission were instrumental in Canada overturning its original rejection of the claims and accepting them for negotiation.

"We are pleased that the Minister has provided a decisive response to our reports," said Commission Co-Chair Dan Bellegarde. "This is something we have been calling for since the Commission was created in 1991 after the Oka crisis. Getting a response from Government to our reports goes to the heart of our credibility and effectiveness as a Commission. We are equally pleased that the Minister agreed with our analysis and recommendations. The reality is that we are working in an area where the law is constantly evolving, as the recent Delgamuukw decision shows. Our goal is to provide some firm principles which can assist Canada in evaluating and resolving First Nations' claims."

The Kahkewistahaw First Nation, located about 130 kilometres east of Regina, asked the Commission to inquire into their surrender claim in August 1994 after it had been rejected by the Department of Indian Affairs. The Commission's report was released in February 1997. It concluded that the Government breached its fiduciary obligations to protect the First Nation's interests by pressuring the people of Kahkewistahaw to surrender their land. The ICC recommended that the claim be accepted for negotiation.

The claim dates back to 1907 when 33,281 acres of prime land - almost three-quarters of the original reserve - was surrendered to the Crown by the First Nation under questionable circumstances. The people of Kahkewistahaw were left to survive on the steep escarpment and lower benches of the Qu'Appelle Valley on land completely unsuited to the agricultural way of life they had adopted. The First Nation maintained that the deal was a breach of the Crown's fiduciary - or protective - duty to shield the First Nation from exploitative or unwise transactions. The First Nation also made a case that the surrender was attained under duress to promote the interests of third parties; the vote was held in the middle of winter when their resolve was weakened by illness and the need for rations.

The Moosomin First Nation, located near Battleford, Saskatchewan, was under overwhelming pressure from settlers and politicians to surrender its reserve from the late 1800s. The reserve was located on 15,360 acres of some of the best agricultural land in Saskatchewan In 1909, after refusing to surrender its land on a number of occasions, the First Nation apparently succumbed to the pressure. The Commission report, however, questioned whether a surrender meeting and vote were even held on the day of the surrender. The Band was reluctantly relocated to a remote area north of Battleford that was described in 1930 as "hilly, stony, in a frost belt and practically useless as a farming proposition." The Band's livelihood was destroyed as a result of this move.

After Indian Affairs rejected the claim, the Moosomin First Nation asked the ICC to conduct an inquiry in July 1995. The ICC report was released in May 1997. Following a thorough analysis of the facts and law, the ICC concluded that: "... the evidence is clear that the Governor in Council gave its consent under section 49(4) of the Indian Act to a surrender that was foolish, improvident and exploitative, both in the process and in the end result. The Crown's failure to prevent the surrender under these circumstances amounted to a breach of fiduciary duty."

These claims have now been accepted by the Department as valid based on the analysis and recommendations in the ICC reports. ICC Co-Chair James Prentice stated that this acceptance may signal a new beginning in the path to resolving First Nations' claims.

"We have maintained that fiduciary obligations are included in the lawful obligations of the Crown to First Nations. While Canada has not agreed with our interpretation of the law in the past, their acceptance of these claims under the Specific Claims Policy essentially means that Indian Affairs and their legal advisors at the Department of Justice have reconsidered their legal position and have accepted this interpretation," said Prentice. "This is the first time this has happened in our six years of existence. We see this as a major breakthrough which vindicates our hard work and perseverence in trying to properly interpret the law in the difficult and evolving area of treaty rights and the Crown's fiduciary obligations to First Nations. This willingness to step back from entrenched positions bodes well for reaching claims settlements which are fair and equitable. We hope this is part of the on-going development of a relationship between aboriginal and non-aboriginal Canadians based on cooperation and mutual respect."

A third response issued by the Minister involves the claim of the Homalco Indian Band of Bute Inlet and Campbell River, British Columbia. The land involved in the claim is adjacent to Aupe Indian Reserve No. 6 and No. 6A, approximately 40 kilometres northeast of Campbell River. The ICC report, issued in December 1995, recommended that the claim be accepted for negotiation because Canada failed to protect the Band's traditional settlement lands by third parties. After considering the Commission's recommendations, Canada has indicated that it is not prepared to accept this claim for negotiation.