Backgrounder

In 1954 the Government of Canada took up a 4490-square-mile parcel of land in northern Alberta and Saskatchewan, roughly centred on Primrose Lake, for an air force bombing and gunnery range. The Primrose Lake Air Weapons Range (PLAWR) lands were part of the traditional hunting and trapping territory of the First Nations in the area. The Joseph Bighead, Buffalo River, Waterhen, and Flying Dust First Nations maintain that they depended on this land for their livelihoods, and that Canada's action in taking up this land, with no provision for compensation or economic rehabilitation, amounts to a breach of Treaties 6 and 10 and a breach of fiduciary duty.

The Indian Claims Commission has the mandate to inquire into and report on whether a claimant Indian Band has a valid claim for negotiation under the government of Canada's Specific Claims Policy, where that claim has been rejected by the Minister. The Specific Claims Policy provides that any claim disclosing an outstanding lawful obligation on the part of the federal government will be accepted for negotiation. A lawful obligation may arise in any number of circumstances, such as breach of treaty or statute, breach of fiduciary duty, or illegal disposition of Indian lands.

The issue for the Commission in this inquiry is whether Canada has an outstanding lawful obligation towards the claimants arising from the creation of the range. The subsidiary issues are; Did Canada breach its treaty obligations?; and, Did Canada have a fiduciary duty toward the claimants and did it breach that duty?

The Commission conducted Inquiries into the claims of these four First Nations. Information-gathering sessions were held in each of the communities during the summer of 1994. When the Commission hears evidence about individual claims they consider the circumstances surrounding the treaty signing. The Commissioners take special care to ensure sensitivity to historical context. During this inquiry they heard from elders who explained that portions of the PLAWR represent their traditional hunting, trapping and fishing grounds.

Holding this principle of interpreting the treaties with consideration of what transpired during treaty negotiations the Commissioners carefully examined Treaties 6 and 10. Testimony from the elders made clear the hardship suffered by these communities because they were excluded from the range lands. However, the Commissioners concluded that the treaty guaranteed a general right to continue the avocations of hunting, trapping, and fishing within the tract surrendered, and it was subject to the Crown's right to take up land. It did not guarantee the right to hunt, trap, and fish within the range lands specifically. Thus the Commission concluded there was no breach of treaty.

With regards to the question of fiduciary duty the Commission referred to a 1946 federal-provincial agreement called the Fur Act, under which a large portion of northern Saskatchewan was designated a "fur block" for the purpose of managing and conserving fur resources in the province. This fur block was divided into smaller community sections known as Fur Conservation Areas (FCAs). The FCA regime was in place when the range was established in 1954. The Buffalo River Band, Flying Dust and Waterhen First Nations had areas that fell within the boundary of the range while the Joseph Bighead Band used an FCA which was entirely outside the range. The range was created, and except for periodic access for hunting and fishing, the people of these communities were absolutely excluded from the range lands.

The Commissioners examined an August 1953 Memorandum of Agreement between Canada and Saskatchewan in which Canada agreed to assume responsibility for payment of compensation to "persons or corporations having rights in the [PLAWR] area, including rights in respect of timber...trapping, fur farming, fishing or land settlement." Furthermore, in announcing the creation of the range, the Minister of National Defence assured the House of Commons in 1951 that "there are no settlements in the area, and compensation will be paid for any property rights in trap lines, etc., affected." The Commissioners found the concept of "fiduciary expectation", introduced in Lac Minerals v. International Corona Resources, was relevant to this inquiry. They concluded that the government so implicated itself in these peoples affairs that it generated a fiduciary expectation, by which these First Nations were entitled to expect that Canada would act in their interest and for the purpose of their relationship.

The report states, "The evidence is clear...that a significant number of people were affected when they were no longer able to trap in the portions of their Fur Conservation Areas lost to the PLAWR. Therefore, we conclude that the government failed to discharge its duty with respect to the claimant First Nations that lost commercial harvesting rights when the range was created." The Joseph Bighead First Nation did not lose commercial harvesting rights when the range was created.

The Commission concluded that Canada has an outstanding lawful obligation towards those claimants who had portions of their FCAs taken up by the range. They concluded:

1. That the claim of the Flying Dust, Buffalo River, and Waterhen First Nations, with respect to lost commercial harvesting rights only, be accepted for negotiation pursuant to the Specific Claims Policy.
2. That the claim of the Joseph Bighead First Nation was properly rejected by the Minister pursuant to the Specific Claims Policy.