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Treaty Land Entitlement

Anita Gordon-Murdoch, Director, Treaty Rights and Research, Federation of Saskatchewan Indian Nations

Anita Gordon-Murdoch
Anita Gordon-Murdoch

Under the terms of Treaties signed chiefly in the 1870's in Saskatchewan between the Imperial Crown and Indian tribes, bands are still owed approximately 1.2 million acres. Under the Natural Resources Transfer Agreement of 1930 land is to be provided by the province to settle any outstanding land entitlements. In 1976 an official agreement called the 1976 Land Entitlement Agreement was adopted for the purpose of transferring those lands to bands without any further delay.

It is almost 10 years since the 1976 agreement, and of the 33
Bands with outstanding land entitlements, only one band (Stoney Rapids) has received its full entitlement. One other band (Fond Du Lac) is nearing the receipt of its land, finally.

Because of the transfer of lands to Indian bands is politically unpopular in the province of Saskatchewan, the present Saskatchewan Government is currently in the process of devising a new policy for settling lands owed under Treaty. Under this policy bands would receive less land than they are owed.

In summary, bands have been forced to live without the use of their lands since the 1970's. Since 1976 bands have met with continuous government procrastination. Now bands are faced with an attempt by Saskatchewan to reduce the amount of land owing to them to something the province can live with politically.

Although the provincial government has not said so publicly, it appears they will try to reduce or limit the amount of land a band receives. They will do this by placing a cash value on the lands the bands wishes to select. Based on that value, the province would offer assets such as cash, shares in Crown corporations, tax incentives, etc., in place of land.

On the land entitlement issue there have been moves by the Saskatchewan Government to implement a new policy and get bands to support it. Nearly half the bands in the province have not yet received the full amounts of land due to them under treaty. In spite of an agreement between Canada, Saskatchewan and these bands made nearly ten years ago, only about five percent of the entitlement acreage of 1.2 million acres has been transferred to reserve status, most of it to one band. (See table) For transfer of land having economic value, there are costs to be met. These are both financial and political, and neither Saskatchewan nor Canada has so far been willing to meet them. Saskatchewan's scheme is to reduce the actual amount of land owed to bands and substitute other assets for it.

At treaty, promises were made about land. Out of the area being opened to settlement the bands were to reserve part for themselves. In most of the Saskatchewan treaties, this was to be one square mile for each family of five, that is 128 acres per person. The bands did not have the opportunity to reserve all the land they were entitled to under treaty. Federal officials had to be involved in the selection and survey of lands. After the initial surveys made soon after treaty, little or no progress was made towards settling the debt. Canada was fully

Treaty Land Entitlement

Anita Gordon-Murdoch, Director, Treaty Rights and Research, Federation of Saskatchewan Indian Nations


MAY, 1985

Beardy/Okemasis 46,080      
Canoe Lake 44,730 8,522 Eagles Lake
      4,498 Kyle Lake
English River 44,401 9,605 Beauval Student Residence
      4,176 Primeau Lake
Flying Dust  30,084 -  -
Fond du Lac  29,633 -  -
Joseph Bighead  28,704 -  -
Keeseekoose  83,200 -  -
Little Pine  77,696 -  -
Lucky Man   7,680 -  -
Moosomin  15,522 -  -
Mosquito/Grizzly Bear's Head  16,543 -  -
Muskeg Lake  48,640 -  -
Muskowekwan  49,408 121 Muskowekwan Student Residence
Nikaneet  15,136 -  -
Nut Lake 117,273.6 -  -
Ochapowace  17,664 -  -
Okanese  11,572 -  -
One Arrow  55,936 -  -
Onion Lake  16,919 -  -
Pelican Lake  23,757 -  -
Peter Ballantyne 229,284 41 Prince Albert Student Residence
Piapot  60,495 -  -
Poundmaker  25,192 -  -
Red Pheasant  63,616 -  -
Saulteaux  44,238 -  -
Starblanket  10,816 55 Lebret Student Residence
Stony Rapids  29,924 31,494 Elizabeth Falls area
Sweetgrass   6,236 -  -
Thunderchild  88,384 -  -
Witchekan Lake  23,027 -  -

Treaty Land Entitlement

Anita Gordon-Murdoch, Director, Treaty Rights and Research, Federation of Saskatchewan Indian Nations

aware of these unfulfilled entitlements. It had not met its treaty obligations respecting land when it handed over control of lands and other natural resources to the province in 1930 under the Resources Transfer Agreement.

By that time, nearly all the surveyed land in the "fertile" southern section of Saskatchewan had already passed into private hands. The 1930 Agreement obliges the province to make land available to meet treaty land entitlements, but only "unoccupied Crown land", that is land not covered or pre-empted by "third party interests": like holders of mineral exploration licenses, grazing leases or forestry leases. This limitation, with provincial unwillingness to transfer lands to the Federal Government for reserves, blocked settlement of entitlements. However, in the late 1970's under the Saskatchewan Formula Agreement the Province agreed to make all its Crown lands available for selection by bands, on condition that the Federal Government do the same and that third-party interests occupying Crown land be satisfied.

At the same time, the bands, the Province and Canada agreed that the acreage for the settlement of treaty land entitlements would be based on the band populations as of December 31st, 1976. This is the 1976 cut-off formula, a compromise the bands had agreed to in expectation of rapid settlement of the issue. It did not change the treaties. It simply clarified one of their most important terms.

Entitlements are Crown, that is, Federal Canadian responsibilities to bands under treaty. The respective obligations of the provincial and federal governments under the 1930 Transfer Agreement are matters for those two alone. Indian bands were in no way parties to it, though it has had some serious effects on their land and other natural resource rights.

Even with the provision that all Crown lands are available for selection, few such lands are of more than marginal economic value. That is why they are still public. They are mostly in northern Saskatchewan, where value lies chiefly in very localized known mineral sites. On these, private corporations have acquired mining rights, and if entitlement settlements are to include them then satisfactory agreements have to be negotiated between the corporations concerned and the Federal Government, acting for the band. There must also be provincial approval. This process has been completed in the Stony Rapids case, the only entitlement band which has to date received its full quota of land under treaty. A similar settlement proposal for the Fond du Lac Band goes before band members at a referendum in June, 1985.

The only way for bands to acquire rural land with reasonably good prospects for creating income in southern Saskatchewan is to have private land bought for them. Neither Saskatchewan nor Canada has said it will do this, nor have they for that matter said exactly how third-party interests on Crown land are to be compensated so that they can be satisfied. Bands have selected parcels of Crown land, but have kept potential acreages back pending the provision of financial resources to buy land. Lack of agreed policies at the Federal and Provincial levels on the financing of entitlements has left bands once again the victims of a federal-provincial argument.

After three years of inaction by the present provincial administration, Saskatchewan has put in motion a policy through reducing the entitlement of bands to land and substituting other assets for it. It is attempting to give entitlements a dollar value. This value is then to be applied to a "mixed" package of land, cash, government assets, and similar items. When a band has received its quota of value then its entitlement would be met, even though it has received only a portion of its agreed land entitlement. The Federal Government's attitude to this policy is vague. It has been asked by the province to agree that this approach will satisfy entitlements to bands, and, while not closing its options, appears to be supportive of what the province is doing. The Federal Minister, David Crombie, considers the provincial proposals "a fair negotiating approach worthy of consideration by all parties."

Neither the provincial nor federal government has yet come out and said clearly what it is doing. No policy statements have been issued. The elements of the provincial approach were presented to the Chiefs last year as personal views held by the Province's entitlement official, Ian Cowie. At a meeting last month for all-the entitlement band Chiefs, they were told that these were now provincial policy. Meanwhile, precedents are being created as bands become party to the arrangements.

These policy shifts have been made in a way which frustrates bands as they try to judge their implications. They have not the financial resources needed to assess the economic and legal issues involved so that they can make informed decisions on this new initiative. And as these new developments proceed, it will become increasingly difficult for bands to insist, on their right to their full entitlement quotas with lands of an overall reasonable economic value. There is little doubt that should a band want productive land it will have to take less than the acreage it is entitled to acquire.

If bands do agree to take something apart from land as part of its land entitlement, then the 1976-77 Saskatchewan Formula Agreement will have been broken. The treaty the bands signed will have been changed. This will have been done without the required procedures being followed.

Any conversion of land to other assets or to smaller quantities of land with some economic potential is at least as significant a loss as the land surrenders through which Saskatchewan bands have been denied so much of their best agricultural land. This has been the subject of much expensive research and litigation, and it is hoped it will be rectified through restoration or compensation. Land surrenders were justified by the Federal Government as providing cash and other assets for economic development. These returns proved short-lived at best and were incapable of expanding reserve economies. Other treaty promises cover resources for achieving economic development without the permanent loss of one of the major Indian material asset: the land.

The land is not simply a matter of

Treaty Land Entitlement

Anita Gordon-Murdoch, Director, Treaty Rights and Research, Federation of Saskatchewan Indian Nations

economic resources base. Beyond such material values, the land is a living space, a homeland secure from the undermining influences of the surrounding non-Indian society, where the political, cultural and spiritual values of Indians can flourish.

Both the Federal and Provincial Governments are viewing the substitutes for land as aids to -band economic development. This helps Canada out of one of its treaty obligations. Further, there is danger that the cash and assets can be easily lost or transferred out of Indian hands to their continued impoverishment. Land is not only protected, but is lasting and owed through treaty.

Under the new policy, bands would have land taken away from them before they have even got it. Their reserves would be smaller than they ought to be. Acquisition of Indian land by non-Indian has been the constant theme of the Indian white relations in North America. It has been done in a variety of ways. Whether by outright theft or this new variety of scrip, the effect is the same. Under the recent provincially-inspired developments this treaty protection of Indian land is in danger of being subverted.

Some bands may conclude that the provincial approach is appropriate to their needs; others may wish to stand behind the treaties and the Saskatchewan Formula Agreement. Whatever their decision, it is imperative that they be given the financial resources necessary for them to reach fully informed decisions. These will be taken in light of their own and decendant's interests, and should not jeopardize those of other bands. The Federation has pressed for such resources, and for the establishment of general principles of settlement on the basis of discussions between Canada, Saskatchewan and all the entitlement Chiefs in the Province.

Principles should deal with such matters as the conversion of land values, the maintenance of parity amongst all bands and the place of land purchases in providing entitlements. Bands want the Federal Government to its Minister's commitment to provide capital for the purchase of land. They seek a specially created fund to expedite this. Satisfactory conclusion of the unfinished treaty business called entitlements ultimately a bilateral matter between bands and the Federal Government.

It is important to recall that the Saskatchewan Formula Agreement was the most successful package which has been put together to date for dealing with entitlements in Canada. The Agreement helped establish a climate in which issues such as entitlement could be dealt with openly and in good, faith. Looking back on this achievement, the Federation, in a 1983 submission to the provincial government said, "The Saskatchewan Agreement was, on balance, a good and fair one which set right a long-standing injustice; made available to Indian bands the possibility of acquiring diversified resource base on which economic self-sufficiency could be based; and did no injustice to any other group of people living in Saskatchewan." For such reasons it should not be lightly disregarded by any of the parties to it.