may, 2015 treaty land entitlement claim sagkeeng first nation treaty land entitlement

May, 2015 Treaty Land Entitlement Claim

Sagkeeng First NationTreaty Land Entitlement

Background• The Sagkeeng First Nation is a signatory to Treaty 1, which

provides, in part, that the Nation is entitled to receive lands to be set aside by Canada for their exclusive use and occupation.

• The historical basis for Sagkeeng’s Treaty Land Entitlement is set out in detail in the original claim submission entitled Sagkeeng First Nation Treaty Land Entitlement Statement of Historical Fact dated May 18, 2000.

• Following an invitation from the Specific Claims Branch to provide further legal arguments on the TLE shortfall, Sagkeeng filed a Supplementary Submission focused on the issue of whether lands privately held before the reserve was created were to be excluded from the calculation of reserve entitlement.


Background

• September 20, 2013: Canada informed Sagkeeng of the Minister’s decision not to accept the TLE Claim.

• July 2014: Maurice Law filed a Declaration of Claim at the Specific Claims Tribunal alleging that the Crown has failed to fulfill its legal obligation to provide a sufficient quantum of land to Sagkeeng in accordance with its obligations under Treaty and seeking compensation for losses suffered as a result.


Pre- Treaty 1Pre-Treaty Lots (“the Private Lots”)

• Well before the treaty making process in Manitoba, many Indians had already taken up land, built houses, improved the land for agricultural use and other purposes.

• In Fort Alexander, the local custom was for members to apply to Chief Kakekapenais to obtain grants of 144 acre lots along the shores of the Winnipeg River and Lake Winnipeg.

• In issue in the TLE Claim is whether the Private Lots taken up prior to Treaty 1 and prior to the first survey of the reserve boundaries in 1874 were intended by the parties to be excluded for the purposes of calculating the treaty land entitlement of Sagkeeng under the reserve clause of Treaty 1.


Treaty 1 & Outside Promises• The “Reserve Clause” in Treaty 1 provides that Her Majesty

the Queen “hereby agrees and undertakes to lay aside and reserve for the sole and exclusive use of the Indians” reserve lands for each of the signatory bands. The amount of land to be set apart for each band was to be based on 160 acres for each family of five, or 32 acres per person.

• The written text of Treaty 1 did not reflect all of the promises made by the Treaty Commissioners, including the manner in which lands held or improved by Indians would be treated.

• A number of oral promises were never incorporated into the written text but were later confirmed by Canada’s officials in a written memorandum, and became known as the “Outside Promises”.


Treaty 1 & Outside PromisesOutside Promises

• One promise was that the Crown would exclude privately held lots

from the calculation of Sagkeeng’s entitlement to reserve lands

(entitlement based on population).

• Molyneaux St. John, an official with Canada’s negotiating party,

provided the following account of the treaty negotiations:

“I remember the Indians asking the question whether the amount of land set

apart for each family; that is 160 acres for every family of five; was meant to

include the land already occupied by them. The answer was that the allotment

now provided for was irrespective of and in addition to their holdings on the

river.”

• Between 1873 and 1875, various Crown officials corroborated the

commitments made to the Indians to exclude private interests in land.


Treaty 1 & Outside PromisesSize of Private Lots

• There is no express wording in Treaty 1 or elsewhere regarding the size of privately held lots and whether it was intended to be limited to those specific lands that were actually cultivated or improved by an individual.

• The land system at the time did not provide for certificates of title and there were no land title offices or registration facilities in the district when Treaty 1 was signed.

• However, the homesteading laws and policies of the day provided for the allocation of 160 acres to non-Indian and Metis settlers. It was customary for local agents to allocate and survey 144 acre “river lots” adjacent to the Winnipeg River.


Treaty Land EntitlementThe Survey of Reserve Lands for the Fort Alexander Band

• February 1874: first official survey of the Fort Alexander Band’s reserve completed by J.W. Harris.

– the external reserve boundaries encompassed 25,000 acres

– the beds and shores of the Winnipeg River and Lake Winnipeg covered 1,750 acres;

– an additional 5,750 acres were allocated to satisfy claims of the Hudson’s Bay Company, English Mission, and non-Indian and Metis settlers.

• The remaining 17,500 acres was set aside and reserved for the Fort Alexander Band.


Treaty Land Entitlement• Surveyor Harris noted 83 private interests in land held by

Indians, “Half breeds” and non-Indians – appendix to survey.

• No single document exists that clearly identifies the number of river lots granted by Chief Kakekapenais to Indians of the Fort Alexander Band prior to Treaty 1

• The appendix and survey plan, along with expert reports and the documentary record provide evidence that 57 river lots (comprising a total of 8,208 acres of land) were improved and privately occupied by Indians of the Fort Alexander Band at the time the 1874 Survey was conducted.


Treaty Land EntitlementAdditional Lands:

• After the 1874 Survey, additional lands were surveyed and set apart as additions to the Reserve Lands:

(1) September 18, 1905 - November 13, 1905: Fort Alexander Band was re-surveyed by J. Reid, resulting in the addition of 3,780 acres to the reserve, confirmed by OCPC 1404, June 14, 1930;

(2) 1957: an additional 575 acres from Lot 6 were further added to the reserve, confirmed by OCPC 1957-27;

(3) 1970: Canada added 144 acres of Lot 11 to the Fort Alexander Reserve, confirmed by OCPC 1970-419.


Treaty Land EntitlementTreaty Land Shortfall

• The total amount of reserve land allocated to the Fort Alexander Band was approximately 21,999 acres.

• Private Lots: 57 river lots prior to the 1874 Survey totaled 8,208 acres of land. These river lots were not deducted from the reserve land allocation contrary to the oral terms of Treaty 1.

• When these privately held lots are deducted from the Fort Alexander Band’s reserve allocation, the total amount of reserve land set apart for the collective use and benefit of the Fort Alexander Band is only 13,791 acres.


Treaty Land EntitlementCanada’s TLE Policy:

• In October 1998, Canada adopted the Adjusted Date of First Survey

approach as outlined in the Historic Treaty Land Entitlement Shortfall

Policy.

• The Shortfall Policy sets out the criteria used to determine a First

Nation’s treaty land entitlement according to its population at the time

the reserve was first surveyed.

• The TLE Shortfall Policy provides that it is necessary to “Determine

population used to assess a band’s TLE, including Date of First Survey

(“DOFS”) population and “late additions” as defined under the policy.”

• The first survey of reserve land for the Fort Alexander Band was

completed by J.W. Harris in 1874. This is DOFS.


Treaty Land Entitlement• The TLE Policy is consistent with overriding principle that

each living Indian will be counted once for the purpose of the land entitlement.

• Because the Harris Survey was not accompanied by a population census for the Fort Alexander Band, the Band’s population at the DOFS and Adjusted DOFS has been the subject of several treaty annuity paylist analyses and reports prepared by both Canada and Sagkeeng to determine how much reserve land the Fort Alexander Band was entitled to pursuant to the terms of Treaty 1.


Treaty Land EntitlementThe Evidence

• Five reports have been prepared through the course of the Specific

Claims Process (15 yrs).

• Three of these reports were prepared on behalf of Sagkeeng:

1) A historical research report prepared by Paula Eyler for the Manitoba TARR Centre entitled Fort

Alexander Pre Treaty Settlement and Treaty Entitlement

2) A historical research report prepared by Jim Gallo for the Manitoba TARR Centre entitled Properties

Occupied and Cultivated Prior to Treaty

3) A historical research report entitled Sagkeeng First Nation – Fort Alexander – Use and Occupation

prepared by Public History Inc.

• Canada also commissioned two research reports relating to the

specific issue of the calculation of the population to be used to

calculate the Sagkeeng entitlement to reserve land under Treaty 1.


Treaty Land Entitlement

• Because of inconsistencies and wide discrepancy between the reports with respect to the entitlement population of the Fort Alexander Band, Sagkeeng commissioned a third report entitled The Treaty Land Entitlement Population of the Fort Alexander Band which reconciled the reports and provided a reliable basis for determining the treaty land entitlement population.

• Analyzing paylists is a very complex, tedious and subjective task that requires a special expertise.


Treaty Land EntitlementExpert Evidence

• To prepare for the Specific Claim Tribunal Process, Maurice Law

retained two experts to advance the evidentiary basis of two

primary issues in the claim.

– A historian to consider whether there was an intention between Canada and

Sagkeeng to exclude pre-treaty lots from the treaty land entitlement. He will

also identify those individuals who held and improved private lots throughout the

period relevant to the claim.

– A paylist expert to review and analyze the relevant historical paylist reports and

prepare schedules listing disputed and undisputed individuals used for the

purposes of calculating the treaty land entitlement.

• We will also retain a third expert (if necessary) to address

compensation matters, such as an estimated value of the lands

and damages for loss of use.


The LawIssue 1: Was there a common intention by the parties to Treaty 1

to exclude privately held lands from the calculation of reserve

land entitlement?

• This legal analysis for this issue will focus on the following:

– principles of treaty interpretation as developed in Canadian case law;

– the meaning of the Reserve Clause in Treaty 1;

– the historical analysis of the context and negotiations leading up to and

resulting in Treaty 1.

– Elder evidence that recounts the perspective of Sagkeeng.


The LawIssue 2: What was the understanding and intention of the parties to Treaty 1 with respect to the size of privately held lands allotted to Indians?

• If the answer to Issue 1 is positive, the Tribunal must determine the intention with respect to the size of the privately held lands.

• This aspect of the claim will focus on Dominion Land Policy and the origin of the 160 acre allotment for homesteads.

• We will also have to consider the settlement and river lot grants adhering to the 144 acres formula at Fort Alexander.


The LawIssue 3: How much communal land was set aside for the Fort Alexander Band?

• The following table summarizes our position regarding the amount of land set aside for Fort Alexander:


Acreage

Perimeter Survey 25,000

Less beds and shores 1,750

Less 5,570 acres allocated to satisfy other interests 5,750

Amount of Reserve Land Surveyed 17,500

Resurvey in 1905 added 3,780 acres 3,780

Lot 6 – 575 acres added to reserve 575

Lot 11 added to reserve 144

Amount of Reserve Land Surveyed (Adjusted) 21,999

Less Private Lots held by Band members [57 x 144] 8,208

Amount of Reserve Land Surveyed Communally under the Reserve Clause of Treaty 1

13,791

The LawIssue 4: Does the Sagkeeng First Nation have an outstanding entitlement to additional reserve land under Treaty 1?

• During the negotiation of Treaty 1, the Crown promised that reserve land would be provided on a formula of 32 acres per person, exclusive of any land held by individuals pre-treaty.

• The 1874 Survey provided the Fort Alexander Band with 13,791 acres.

• The ADOFS population of the Fort Alexander Band was 574, which entitles Sagkeeng to 18,368 acres of communal land.

• As such, the Fort Alexander Band was provided with 4,577 fewer acres of reserve land than it was entitled to.


Specific Claims Tribunal• The TLE Claim is brought on the grounds that the Crown breached

its treaty and fiduciary obligations to the Fort Alexander Band by failing to satisfy the Band’s full entitlement to reserve lands under the terms of Treaty 1.

• Sagkeeng has an outstanding shortfall of reserve land provided under Treaty 1 based on an application of legal principles and the criteria set out in Canada’s TLE Shortfall Policy.

• Sagkeeng is seeking the following relief from the Specific Claims Tribunal:

(a) An order that Sagkeeng has established a shortfall of 4,577 acres of reserve land owing under Treaty 1 or such other amount as may be proven at a hearing before the Tribunal;


Specific Claims Tribunal(b) compensation for Canada’s breach of its treaty, honourable, fiduciary, and equitable duties and failure to satisfy Sagkeeng’s full treaty land entitlement in a fair and timely manner;

(c) damages for loss of use of lands that should have been set apart for the use and benefit of Sagkeeng by the Crown from 1874 to present and ongoing;

(d) historical losses suffered by Sagkeeng;

(e) an award of solicitor-client costs; and

(f) other relief the Tribunal deems appropriate.


• We believe that the Sagkeeng First Nation had an entitlement population of 574 members.

• Based on a population of 574 members, Sagkeeng was entitled to 18,368 acres under the terms of Treaty 1. Since only 13,791 acres (which excludes the amount of land for private lots) were set aside for the collective use and benefit of Sagkeeng at the DOFS, this leaves an outstanding treaty land entitlement shortfall of 4,577 acres.

Meegwetch!


Conclusion

may, 2015 treaty land entitlement claim sagkeeng first nation treaty land entitlement

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