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04/04/1997

Indian Claims Commission Recommends Mamaleleqala Qwe'Qwa'Sot'Enox Band Claim Be Accepted for Negotiation by Federal Government

Ottawa (April 4, 1997) - On March 27, 1997, the Indian Claims Commission (ICC) completed its report on the Inquiry into the McKenna-McBride Applications Claim of the Mamaleleqala Qwe'Qwa'Sot'Enox Band. The report finds that Canada, through its Indian Agent, breached its fiduciary (or trust-like) obligations to protect the Band's traditional lands against encroachment. The claim involves applications for land the Band made to the McKenna-McBride Commission in 1914.

The McKenna-McBride Commission was created in 1912 to address the outstanding issues of all matters relating to Indian affairs in British Columbia. Among other functions, it provided an opportunity for bands to apply for additional lands to be allocated as reserves.

The members of the Mamaleleqala Qwe'Qwa'Sot'Enox Band are Kwakwaka'wakw, who traditionally used and occupied lower Knight Inlet on the British Columbia mainland and the islands at its mouth opposite northeastern Vancouver Island. Today, the Band has approximately three hundred members.

The Mamaleleqala Qwe'Qwa'Sot'Enox Band applied to the McKenna-McBride Commission to have several of its traditional sites recognized as reserve lands. However, when they appeared before the Commission in 1914, the Mamaleleqala Chiefs heard for the first time that most of the lands they were applying for had already been taken by the province and used for granting timber leases and licenses. The Chiefs told the Commission that their Indian Agent had failed to advise them that some of their traditional sites had already been alienated, and they challenged the right of the government to sell these lands without having consulted them.

The role of the Indian Agent was an issue in this inquiry. The Indian Agents were representatives of the federal government put in place to look after First Nations' interests. In this case, even before the McKenna-McBride hearings, the federal agent failed to take reasonable steps to protect the Band's traditional settlement lands from alienation despite the fact that provincial legislation at the time provided some measure of protection for those lands.

Given that these traditional lands were not properly protected, three related questions arise: Did the Indian Agent fail to prepare the Band for the McKenna-McBride process? Was land reasonably required by the Band? And were lands available which the Band could have applied for, had they been properly prepared?

The ICC report concludes that the Indian Agent did indeed fail to prepare the Band properly prior to the McKenna-McBride proceedings. Although plans of their reserve lands were available for distribution well before the McKenna-McBride Commissioners' visit, the Indian Agent did not distribute those plans until the day before the Commissioners arrived. There is also evidence that the Indian Agent failed to disclose information in his possession regarding the various timber limits in the area (the McKenna-McBride Commission had no power to grant lands already ceded through licenses or leases). As a result of the agent's failure to disclose this important information, the Band was left ill-prepared to apply for new allocations of land.

The report also concludes that additional lands were available to the band, and that this land was reasonably required by the Band. Other First Nations in the Kwawkewlth Indian Agency responsible for the Mamaleleqala and about a dozen other First Nations in the area - had a per capita average of 14.03 acres, whereas the Mamaleleqala had a per capita average of only 8.52 acres.

The report recommends that the Band's claim be accepted for negotiation under the Specific Claims Policy for compensation for a minimum of five acres in the Lull Bay area (designated as Application 62); a minimum of 2.8 acres in Shoal Harbour (Application 64); and the Band's settlement lands in Knight Inlet (Application 71), the size of which can be determined by the parties through research and negotiation.

Canada's breaches of fiduciary duty did result in damage to the Band. If Canada had taken proper steps to protect the Band's settlement lands and reasonable steps to provide the Band with basic information and advice during the McKenna-McBride hearings, the Band could have received additional reserve lands. This resulted not only in a loss of additional lands, but also a loss of resources and economic opportunities.

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 report PDF