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In Saskatchewan, the land entitlement bands have consistently maintained that a band's entitlement changes in line with that band's population, until the band is owed no more land. This policy has been pursued by the Federal Government in its dealings with the bands. The 1976 formula that was negotiated between the FSIN, the Federal Government and the Provincial Government, recognized the use of current band populations when calculating land entitlement.
The reason the FSIN and the bands accepted a cut-off date of 1976 was in the hope that within five years, land entitlement would be largely satisfied with federal and provincial crown lands transferred to the Bands.
The provincial and federal governments agreed to make their crown lands both unoccupied and occupied available for selection by Bands. They also said that where lands are occupied, the interests of any third parties were to be satisfactorily met through compensation or other arrangements.
Thirty Validated Bands
In the early '70's, there were 13 bands with recognized land entitlement. However; by the end of 1984, some 30 bands were recognized as having land entitlement. When a band was recognized as having validated land entitlement, their land was calculated on the basis of the 1976 formula.
The 1976 formula took the band population as of December 31,1976 and multiplied it by 128 acres per person. The current acreage of the reserve was subtracted from the total and the remainder was the new land the band was to receive.
In all, 1.4 million acres were to be transferred to reserve status.
In the 12 year period, since the 1976 agreement was concluded, only 90,000 acres have been transferred to bands and only two of the 30 bands have received their full quota of land. Almost all the transfers were in the far north and mid-north of the province, where third party and government interests posed no serious problems.
In 1981, 222,000 were formally committed for by Saskatchewan and accepted as such by the Federal Government. However; even these selections have not moved in the past seven years.
An FSIN internal memo unit states, "There has been an unremitting campaign by federal bureaucrats to reduce this debt to what Justice Department lawyers considered to be Canada's 'lawful obligation', that is to the shortfall of land at the time when land was first surveyed for a band". "This reduces the amount from 1.4 million acres to 170,000 acres". "The agreement was regarded as being too generous, far too costly at a time of economic constraint and a political liability". "The only federal crown lands transferred to bands to date, have been the sites of Indian schools. These were carried out between 1978 and 1982:'
Since the 1975 land entitlement agreement was negotiated, the NDP government in Saskatchewan has been replaced by a Conservative government and the Liberal government in Ottawa has been replaced by a Conservative Government.
After it came to power in 1982, the Conservative Provincial Administration spent over two years carrying out an internal policy review on entitlements. No consultations occurred, no position paper was issued, no report was tabled. An indication of the reviews conclusions were given to the Chiefs just before the September; 1984 federal election was announced. As part of the review documentation, a provincial cabinet document of June, 1984 states that further review by the Attorney General of Saskatchewan's legal obligations confirms that, "if we depart from the 1976 formula, we will likely be faced with litigation with a serious risk of losing...there is an outside chance that litigation would result in the provinces being bound to transfer more land than the 1976 formula would require."
Province Rejects '76 Formula
The provincial government was vague in public on the agreement, although the Cabinet is known to have rejected the Saskatchewan formula in 1984. This position was reaffirmed in July, 1987, but unlike the earlier decision, no reference was made to the agreements used as a guideline.
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In 1984 and after, provincial bureaucrats said Saskatchewan would emphasize the legal settlement of the entitlement issue, but would go beyond this to help create economic self-sufficiency for bands. This was taken to mean, that only so-called lawful obligations were to be met with any certainty, this policy would likely mean that bands could only expect a fraction of their Saskatchewan agreement entitlements
The province also indicated that it was prepared to negotiate various components, land, cash and shares as part of entitlement settlements. No resources were provided by either government to bands to evaluate this proposal or to examine "packages" of assets. Both the bands and the FSIN raised serious objections to any such trading off of their land rights under Treaty. The entitlement Chiefs clearly reaffirmed their position on the required land quantum.
Since it came to power in 1984, the new federal administration has been conspicuously silent. The province has taken the initiative and the federal government has agreed with the province's policy. Through this strategy, the Federal government abdicated its obligations as the Crown's agent to fulfil commitments under Treaty.
In 1986, the federal and provincial governments jointly tabled the "Draft Treaty Land Entitlement Selection Criteria" which states that: where possible, all entitlements are to be fulfilled from available Crown lands, where possible, selections are to be contiguous to existing reserves; northern bands are not to select lands south of 54 degrees; third party interests are to be satisfied; offsets are to be made for valuable lands and resources; bands are to receive at least the shortfall at date of first survey; and if sufficient land is not available then they would have options of mixed settlement components or; if possible, purchased land; the amount of any purchase funds is to be based on the average unimproved value of land in the 25 mile radius of the band's existing reserve."
This draft was rejected by the Chiefs because it simply ignored the terms, spirit and intent of the Treaties and of the Saskatchewan agreement.
The Department of Indian Affairs has stated that a federal policy review on entitlements is to be released soon. However; the FSIN feels this will define entitlement as shortfall based on date of first survey. This would be the formal break which has already been made with the agreement.
An indication of the way in which federal thinking was moving, came in November; 1986. In a move designed to reduce the value of treaty land entitlements, the Deputy Minister of the Department of Indian and Northern Affairs directed that a component part of negotiations with Saskatchewan and entitlement bands be the following:
The value of a Band's entitlement per acre should be calculated on the basis of the average improved value of land, less improvements within a 25 mile radius of the current reserve. The land selection of any band should be considered on the basis of the value per acre of the entitlement. A band may select surface federal crown land that has structures, however, the value of any structures would be considered as part of the total value of the settlement. In October; 1987, the Minister of Indian and Northern Affairs, Bill Mcknight, wrote to Chief Roland Crowe stating that, "it is important that policies in each of the prairie provinces meet the basic requirements of lawful obligation." Further; he went on to say that pending the current review, "Canada's commitment to the first settlement of treaty land entitlement based on the date of first survey entitlements is clear."