3. Treaty Land Entitlement in Saskatchewan

This is the third in a series of five articles on Treaty Land Entitlement in Saskatchewan.

Saskatchewan, Canada and 25 First Nations signed the Treaty Land Entitlement Framework Agreement in September, 1992. A separate but similar agreement was signed with the Nekaneet First Nation shortly thereafter. In March and June of 1996, the Cowessess First Nation and the Carry The Kettle First Nation signed TLE agreements, followed by Kawacatoose First Nation in October, 2000.

While the Treaty relationship exists exclusively between the federal government and First Nations, Saskatchewan has a legal obligation in TLE through the 1930 Natural Resources Transfer Agreement (NRTA). Under the NRTA, Canada transferred to Saskatchewan all Crown lands, minerals and other natural resources within the Province, subject to a number of conditions. One such condition was that Saskatchewan would provide unoccupied Crown lands should Canada ever require land to fulfil its obligations under Treaties.

Several ways of "figuring out" the proper entitlement were suggested. As research into historic records was done, it was realized that a number of First Nations in the province had not received the amount of land they should have at first survey. In general, the federal government had continued the practice begun by the first Indian Agents and surveyors after Treaty: count the people, multiply by 128 acres and survey that amount of land. As populations grew, however, there was an interest in setting a cut-off date for populations, in order that entitlements would finally be fulfilled.

The issue was revisited in 1976, when First Nations, federal, and provincial governments came to an agreement to use the population of entitlement Bands as of December 31, 1976, as the cut-off for current population. This has come to be known as the Saskatchewan Formula. Entitlement would be settled on that basis: population multiplied by 128 acres, minus the amount of land the Band originally received.

Several problems emerged, however. Firstly, entitlements must come from unoccupied Crown land, as specified by the Natural Resources Transfer Agreement of 1930, and there was not enough productive land in this category to fulfil entitlements in spirit rather than just words. That is, getting poor land far removed from the reserve would not serve the interests of the Band in becoming self-sufficient. Secondly, the province was reluctant to turn over this land without compensation from the federal government. The federal and provincial governments could not agree on a purchase policy, and third parties using or leasing Crown lands were not happy with the prospects of loss of use. Years passed and only three entitlements were resolved.

In 1987 the federal government, with the co-operation of the provincial government, decided that they would go back and look at entitlement at the date of the first survey. If a reserve was surveyed in 1880, for example, and research showed that 20 people did not get land in 1880, then additional acreage would be surveyed for the Band for these people only -- 20 X 128 acres. This resulted in far less acreage for the Bands, far less than they needed to meet expanding needs for current populations. First Nations charged that this was a breach of both the spirit of the Treaty and the worded promise: there is nothing in the Treaties which says that only the original population would get land, and, in fact, promises were made to the contrary. Their ancestors had asked the first Treaty Commissioners if they would get more land as their numbers grew and they received this assurance. The 1976 Saskatchewan Formula agreement may also have been legally binding, it was argued, and five First Nations in the province launched civil court action against the federal and provincial governments on that basis. This court case has since been terminated.

When the Treaty Commissioner was appointed in 1989, there were 27 outstanding entitlement Bands in the province. The Commission realized that if the 1976 agreement were used, some Bands who might have had a small "shortfall" at the actual survey, would receive large amounts of land if they happened to have large current populations. Other Bands might have had large shortfalls, with perhaps half of the original Band not receiving lands, but if they had small current populations they would receive much less land. This did not seem equitable according to the principles of the Treaty. On the other hand, the failure to take account of changing needs by using only the original shortfall did not seem equitable under Treaty, either.

In 1990 the Treaty Commissioner presented a Land Entitlement report to the Minister of Indian Affairs and the Chief of the Federation of Saskatchewan Indian Nations. The report was intended as a set of recommendations to provoke discussion and consensus. The Commissioner proposed an equity formula for resolving entitlement that he viewed as fair. This formula will be discussed in the next article.

This was the third of five articles based on a series developed by the Office of the Treaty Commissioner in 1991.