When the government fails to honour its commitments
Mathieu Gobeil and Isabelle Montpetit | CBC News | Posted: May 30, 2011 6:43 PM | Last Updated: July 14, 2011
Specific land claims process offers a remedy
According to an agreement concluded in December 2010, the Bigstone Cree Nation will receive over $231 million from the federal government in settlement of a claim regarding the size of its territory.
The First Nation adhered to Treaty 8 in 1899, which entitled it to an area of land proportional to its population. The promised amount of land was not delivered at the time.
The federal government, Alberta and the Bigstone Cree Nation reached the agreement as part of the specific claims process. This is an option available to native groups who believe the federal government has not honoured a treaty or agreement, or fulfilled its lawful obligations.
Since 1974, the federal government has paid compensation totalling over $2.6 billion to settle 343 specific claims. Hundreds of other claims are still outstanding.
A specific claim can be submitted in a variety of circumstances.
Treaty Land Entitlement (TLE)
This type of claim arises when a First Nation asserts that it did not receive the amount of land to which it was entitled under a historic treaty.
For example, Canada never set aside the reserve land promised in 1899 to the Mikisew Cree in Treaty 8. In 1986, through a settlement with the governments of Canada and Alberta, the Mikisew Cree First Nation received $28 million in compensation, which it used for economic development.
Illegal surrender of reserve lands
According to the Indian Act, the surrender of reserve land must be approved by a majority of band members at a public meeting convened for that purpose. Until 1951, only men aged 21 and older had the right to vote.
In 1889, Canada obtained, without a vote or payment, the surrender of 440 acres of land that, in accordance with Treaty 7, had been reserved for the Blood Tribe / Kainaiwa in Alberta.
In April 1998, the government recognized it had seized the land in violation of the Indian Act, and accepted the claim for negotiation. The land could not be returned, because it had been converted into private property. The First Nation received $6.8 million in compensation.
Breach of fiduciary obligation
According to the law, a native group can submit a specific claim if it believes the surrender of its land was not in its interest, or if the land was obtained in breach of the federal government's fiduciary duty.
For example: In 1909, against the express will of the Moosomin First Nation, Canada recorded the surrender of 15,360 acres of prime Saskatchewan agricultural land, reserved through Treaty 6, which was subsequently sold to non-aboriginal farmers.
The First Nation was moved to an unfertile area and its livelihood was destroyed.
In December 1997, the government recognized it had not acted in the First Nation's interest. In October 2003, Canada and the Moosomin signed a settlement agreement worth $41 million.
Specific claims in the absence of a treaty
In the Maritime provinces, Quebec and most of British Columbia, no treaties were signed before the end of the 20th century. However, in the 19th and 20th centuries, some bands entered into agreements whereby land would be reserved for them.
"These reserves derive from the fiduciary role of the federal government - in other words, the government had to protect aboriginal interests against the settlers," explains anthropologist Pierre Trudel, an expert on aboriginal issues.
In these instances, the federal government has obligations toward First Nations that are not treaty-based.
In 1984, the Supreme Court of Canada accepted the specific claim submitted by the Musqueam Band of British Columbia and ordered the federal government to pay $10 million in compensation. The government had rented their reserve lands for 75 years, at a lower price than that initially indicated, in order to create a golf course.
The Huron-Wendat in Quebec also obtained $12 million for 40 arpents (about 34 acres) of reserve land they had surrendered to the federal government in the early 20th century. At the time, the government had not respected the provisions of its own Indian Act regarding land surrender procedures.
Other claims involve encroachment or unauthorized use of land. For example, in 1998, the Innu of Pessamit received $1.5 million in compensation for Quebec's construction of power transmission lines on their land in the 1950s and 1960s.