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Legal Action Underway on Land Entitlement

Shannon Avison

SASKATCHEWAN INDIAN      MAY 1989      p06  
This spring, the Federation of Saskatchewan Indian Nations and two bands launched a law suit against the Federal and provincial governments.

The two bands are the Canoe Lake Band, which is about 80 kilometres north of Meadow Lake and the Starblanket Band, located between Regina and Melville.

The Starblanket Band is one of four southern bands that call themselves MOPS. The MOPS group includes representatives from Muscowpetung, Ochapowace, Piapot and Starblanket reserves in the southwest corner of the province.

According to William Pillipow, lawyer for the Starblanket band and the MOPS group, the Star blanket band's suit was filed as a test case.

"The others are ready to proceed; we just didn't want to put too many plaintiffs into an action because we didn't want to complicate it," he said.

"We are taking a sample action which hopefully will be a representative action, on behalf of those five bands and on behalf of the other 26 or 27 bands," said Pillipow.

The Canoe Lake and Starblanket bands, and the FSIN are hoping that their court case will force the Federal and provincial governments to settle outstanding treaty land entitlement claims according to the Saskatchewan Formula of 1976.

According to the Federation, the Federal and provincial governments entered into a legally binding agreement with the FSIN to use the "Saskatchewan Formula" to settle the outstanding treaty land entitlements in the province.

However in the early 1980's the governments changed their positions on the Saskatchewan formula, saying that it was merely a statement of policy and they were not legally bound to use it to settle Saskatchewan land claims.

The treaty entitlements date back to the turn of this century when Indian leaders met with representatives of the British Monarch to settle the question of land ownership.

In 1874, Chief Wa-Pii-Moose-Too-Sus signed Treaty ~ the Qu'Appelle Treaty ~ which ceded a large region of southern Saskatchewan; and, in 1906, Chief John Iron signed Treaty 10, which ceded much of northern Saskatchewan and a portion of northern Alberta to the Federal Crown.

The terms of the treaties were pretty straight forward. Among other things, the band would receive 128 acres of land per band member.

However, few of the bands received all of the land they were promised under the treaties.

In fact, between 1973 and 1982 the federal government identified 30 bands with "valid" outstanding treaty land entitlement claims in Saskatchewan, including the Starblanket and Canoe Lake Bands.

According to the "Statement of Claim" issued by the bands and the FSIN, at the time when Treaty 10 was signed the population of the Canoe Lake band was 98 people. That entitled them to 12,544 acres of land.

However, by 1978 the band had only received 9,627 acres - a "shortfall" of almost 3,000 acres of land.

The Starblanket band had 129 members in 1880, according to the Department of the Interior records of the day; but, for the purpose of calculating their reserve size, a figure of 108 people was used.

The shortfall in the Starblanket land was also about 3,000 acres.

Over the years, the federal government has settled a number of outstanding land claims with other bands using the "current" population figures for the band.

If the entitlement was settled in 1950 when there were 100 band members, the band would receive 12,800 acres of land (128 acres X 100 people) minus the amount of land that had already been turned over to the band.

According to FSIN lawyer David Knoll, "We believe that it was always understood that when a band finally decides to complete its entitlement, you use the population figures at that time ...because we haven't had the land for all these years, from the time the treaties were entered into up until the present time."

However, in the 1960's says Knoll, the provincial government began to question that.

"They said that it wasn't clear in the Natural Resources Transfer Agreement (which turned Federal Crown land over the provinces in 1930) or in the treaties, at what period of time (or population) you use to calculate the quantum of land," he said.

The provincial government ultimately decided that they wanted to use population figures from the time the land was first surveyed - in about 1880 and 1912.

Needless to say, those populations were considerably less than the band membership today. Notion-wide the number of registered Indians has more than tripled since the turn of the century - from about 100,000 to over 300,000.

Discussion between the federal and provincial governments and the FSIN, which represented the bands, lead to the development of the Saskatchewan Formula.

According to the Saskatchewan Formula, which is also called the 1976 Formula, for the purpose of fulfilling the treaty obligations in Saskatchewan, the population of the bands on December 31, 1976 would be used to calculate land entitlements.

Knoll says "it was hoped that once they had that (the cut-off date) agreed to, they would get these claims settled quickly- so it wouldn't drag on for decades."

In 1977 the Federal government provided $450,000 to aid the FSIN and the bands researching and negotiating their claims.

In the next few years the bands made selections of land. And in the years that followed, a number of bands were allotted lands under the Saskatchewan Formula.

The Stony Rapids and English River bands had their claims settled using the Saskatchewan Formula and many other bands including the Canoe Lake band received additional land, above what they would have been given using the "date of first survey" population figures.

However in 1983, the newly elected Progressive Conservative government decided to re-evaluate the province's position on the 1976 Formula.

Sid Dutchak, who was the Minister responsible for the Indian and Native Affairs Secretariat between 1983 and 1986, says there were public outcries against the formula, which was criticized as being "arbitrary."

The large amount of land at stake also gave rise to opposition from non-Indian land owners who feared that their lands would be taken from them. That was a big concern since the total acreage owned to the 30 entitlement bands was about 1.4 million acres of land.

According to Dutchak, the new premier Grant Devine, took the position that land entitlements were legitimate; but, he was prepared to negotiate only on a band-by-band basis. He was not willing to settle all of the bands entitlement claims on the basis of the 1976 Formula.

Don McMahon is a researcher for the FSIN who has been involved with land entitlement claims in Saskatchewan since 1981.

Says McMahon, the Federal and provincial governments backed out of the Saskatchewan Formula when they realized what a "heavy burden" it placed on them.

If the Saskatchewan agreement had been fully implemented, it would have doubled the size of the existing reserve land base in Saskatchewan, from about 1 million to over 2 million acres.

"Over half of the current land entitlement bands in Saskatchewan are in the agricultural belt of the province; explained McMahon. "But there's not a great deal of Crown lands left in southern Saskatchewan."

Where sufficient crown lands were not available, the Federal and provincial governments would be responsible for providing compensation "in lieu of" land, which could have been very expensive for the governments.

Finally says McMahon, the Federal government started to realize the "enormous" financial burden that it would take on if such a large area of land received reserve status.

Under the terms of the Indian Act, explained McMahon, the Federal government is responsible for providing services and the community infrastructure on reserve lands. If the reserve lands were doubled, the costs of servicing these lands would also increase dramatically.

Nonetheless, the FSIN and the Saskatchewan bands maintain that the Federal and provincial governments are legally bound to settle land claims using the December 31, 1976 cutoff date.

The allegations made in their statement of claim are extensive.

The document includes 37 pages of claims, each of which is intended to support the FSIN and the bands position that the Saskatchewan Formula was a binding legal agreement and not just a statement of policy.

Said Starblanket band's lawyer William Pillipow, "There is a paper trail that you wouldn't believe -letters from the Federal Minister to the provincial minister and to the Chief of the FSIN."

Added Pillipow, the Saskatchewan Formula "was not in writing, but was in letter form and everybody had accepted it as being an agreement."

David Knoll, lawyer for the FSIN says, "We're not just dealing with policy. We're dealing with an interpretation of the treaties. It was a negotiated agreement - a compromise between all of the parties...binding on all three parties.

It is important to remember that the Saskatchewan Formula does represent a compromise.

As Irvin Starr, Chief of the Starblanket band pointed out, his band had 196 members on December 31, 1976. In 1989, the "current" population is about 300 people.

Thus the 1976 Formula represents a compromise between the Federal and provincial governments, who would like to use the date of first survey as the cut-off date, and the Indian bands who would prefer to use current population figures to settle their land entitlements.

The Federal government's lawyer in this dispute, Senior General Council Duff Friesen, says that given the extensive nature of the claim, it will take some time to work out a defence. Each of the claims made by the FSIN and the bands must be analysed and disputed in the Federal governments statement of defence.

Donald McKillop is the province's lawyer. As he explained, there are a number of different agencies that will have to be involved in designing the province's statement of defence.

According to McKillop, the decision on the province's position will probably have to come from Cabinet. And as of early this month, no decision had been made on the provincial governments position.

Said McKillop, "The province settles a lot more claims than it ever goes to court on. The primary problem is that this case isn't just a two party claim. With a triangle, its hard for any two parties to get together to settle it."

Said McKillop, "I don't want to suggest that it can't be settled. It mainly depends on the policy decisions at both levels of government."

Even after the Federal government has decided on a defense, the legal process to solve the case will probably take a long time.

As Don McMahon explains it, the legal action must be launched in the Federal Court of Canada, Trial Division.

Once it is filled, the FSIN and the two levels of government will undertake an "examination for discovery" which McMahon says can be "very time consuming indeed."

After that, the court hears the argument from each side and passes a judgement.

But it likely won't stop there.

The unsuccessful party will most likely appeal the court's decision in the Federal Court of Appeal, where a panel of three judges will hear the case and pass their judgement.

Following that, the losers may appeal their case to the Supreme Court of Canada.

According to McMahon, the whole process could take years and could cost several million dollars before it is all over.

But Irvin Starr says that it will be worth it for his band - which stands to get about 11,000 acres of additional land if the Saskatchewan Formula is found to be legally binding.

"We're talking about land that could be used for farming and land in urban areas that we can utilize for industry," said Starr.

"It would mean a lot of economic development that would make a substantial change in our lifestyle."