4. Treaty Shortfall Addressed

This is the fourth in a series of five articles on Treaty Land Entitlement (TLE) in Saskatchewan.

In the last article, we discussed the issue of determining how much land is required to fulfil Treaties. The Treaty Commissioner proposed an equity formula for resolving entitlement that he viewed as fair. Here is how the equity formula works:

Imagine a Band of 100 people in 1880. The surveyor surveyed a reserve for 60 people; the rest, 40 people, were away hunting. As a result, 40 per cent of the people did not get land. This is the shortfall. Over the years the Band declines in population, and then grows, as people marry in, and the birth rate finally starts to increase. The Band today contains 500 people. The ancestors of 60 per cent of today's Band got entitlement, and the ancestors of 40 per cent of today's Band did not. The equity formula recommended by the Commissioner and used in the Treaty land entitlement states that one calculates 40 per cent of each entitlement Bands current population, multiply it by the 128 acre entitlement, and subtract the amount of land initially received by the Band. The result is the outstanding entitlement.

The Office of the Treaty Commissioner did some research for entitlement First Nations to determine just how many people were present and entitled at the date of survey. The paylist with the most recent population figures prior to the first survey of the reserve was used as a base, since this would have been the most recent information available to the surveyor to use in deciding how large to make the reserve. People coming into the Band who had not received land elsewhere were added, provided they stayed with the Band. At the same time, people who had previously been included in the surveys of other Bands were subtracted from the total. This results in an adjusted date of first survey population, and is the number used to calculate the original shortfall.

To return to the above example, the 40 people who did not receive land might be people who were absent and returned. They may also have been 40 people who came into the Band after survey, but who became Band members and had not been entitled elsewhere. Researches into these circumstances allow families who were part of the transient population of the 1880's to get entitlement even though they moved between Bands. It also helps to ensure, however, that they were not counted twice.

In applying this formula to all 28 entitlement Bands in Saskatchewan, their entitlements would be "equitably" addressed. All will have their original shortfalls addressed, and will receive land in proportion to their current population. For example, in the case of the hypothetical Band in the preceding article, the Band would receive 25,600 acres based on their current population - 500 people multiplied by 40% shortfall multiplied by 128 acres (the original entitlement).

The equity formula, as recommended by the Treaty Commissioner, was accepted by Canada and the entitlement Bands as the basis for calculating the various Bands' outstanding Treaty land entitlement. The Commissioner recommended that the entitlement be given to the Bands in the form of land credits. An average price of an acre of unimproved agricultural land in 1989 was calculated at $262.19. Each Band received its outstanding entitlement in the form of monetary credits; each entitlement acre would be worth $262.19. This money went into a special trust fund and may only be used to purchase land for entitlement until each Band's shortfall acres are acquired. The Band manages the selection and purchase of the lands they choose. Unfettered by previous restrictions that they could only acquire Crown land, Bands can now buy land at market value, on a willing-buyer/willing seller basis - whether it's private land, Crown land, or urban land. This allows each Band to decide how to use land as an economic investment for the future. In addition, the interest on the trust principal and any money remaining after shortfall acres are acquired can be used for Band development.

Land chosen under the equity formula becomes a reserve under the Indian Act. Controls such as Band referendums were put into place to allow membership to have a voice in the critical decisions of land selection and allocation of interest funds.

Sums payable to the Bands are made over a twelve-year period. This prevents unreasonable inflation in land costs and spreads budget pressures over a reasonable length of time. It also gives Indian governments time to make well thought-out decisions and allows farmers to make plans for selling land if they so desire.

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