ICC Panel Recommends Canada Not Negotiate Red Earth and Shoal Lake Cree Nations’ Claim into Quality of Reserve Land

Ottawa (March 6th, 2009) In a report released today, an Indian Claims Commission panel found that the Crown had met its obligation under Treaty 5 to provide “farming lands” to the Red Earth and Shoal Lake Cree Nations. It also concluded, however, that their reserves are no longer viable places to grow crops and raise animals owing to persistently high water levels. From the Elders’ testimony, the panel accepted the possibility that the lands have been changed by forces that could not have been anticipated at the time of treaty. Using the Commission’s supplementary mandate, the panel recommended that Canada initiate discussions with the Red Earth and Shoal Lake Cree Nations to find a long-term solution to the problems resulting from the condition of their reserve lands.In 1876, The Pas Band, made up of members residing at The Pas and other locations, including The Pas Mountain (Red Earth and Shoal Lake) in Saskatchewan, signed an Adhesion to Treaty 5. The Treaty specifically provided for reserves to be set aside for “farming lands” and “other reserves.” The Pas Band agreed to adhere to the Treaty on condition that the Band receive reserves where they desired; the Band chose reserve land not only at The Pas but at other sites, including The Pas Mountain, where there was more land fit for cultivation.

Over the years, the Red Earth and Shoal Lake people that had separated from The Pas band, who eventually became separate bands, requested and received, with few exceptions, additions to their reserves and exchanges of land, including an 1892 exchange of land set aside for The Pas Band at Flute Creek for a second reserve at Red Earth. In 1946, Red Earth and Shoal Lake petitioned the government for more land suitable for farming and producing hay, claiming that when the reserves were set aside, they did not provide for cultivation of the land, but that the people were content at the time because they could continue to hunt and trap.

The panel found that the reserves set aside for Treaty 5 bands were not intended to exist solely for the purpose of cultivating the land: the Treaty contemplates that reserves would contain some “farming lands” and some “other reserves.” Within the category of “farming lands,” at least some of that land was intended to be cultivatable, but the rest could be suitable only for raising cattle, growing hay, or other farming uses. The proportion of cultivatable land to be set aside was intentionally not defined in the Treaty in order to allow bands and the Crown to select reserves suitable to a band’s individual needs, priorities, and location within the vast territory of Treaty 5.

The common intention of the parties to Treaty 5 was to provide reserves for multiple uses, to enable bands to continue traditional pursuits while becoming self-sufficient in agriculture. The Pas Band’s priority was to receive land on which they could pursue traditional activities as well as grow crops and raise cattle, which is what band members at Red Earth and Shoal Lake were already doing in 1876. The evidence is persuasive that they received sufficient good-quality, cultivatable land to grow crops for subsistence living and successfully cultivated a range of crops and raised cattle for decades.

In May 1996, the Red Earth and Shoal Lake Cree Nations jointly submitted a specific claim to the federal Department of Indian and Northern Affairs. The claim alleged that Canada had breached the Treaty by not providing them with “farming lands;” in 2004, the the First Nations requested that the ICC conduct an inquiry into the claim despite the fact that the Minister had not yet decided on its validity. After the Commission agreed to do so, Canada unsuccessfully challenged the ICC’s jurisdiction to hold an inquiry on the basis of constructive rejection. However, in December 2006, after applying for judicial review of the ICC’s decision, the Minister formally rejected the claim. In October 2007, the panel conducted a site visit and community session to gather Elder testimony; after receipt of written submissions, the panel heard the parties’ legal arguments in Saskatoon in May 2008.

The ICC was established in 1991 to conduct inquiries at the request of First Nations into specific claims that have been rejected by the federal government or where the First Nation disputes the compensation criteria being considered in negotiations. In addition, the ICC provides mediation services at the request of the parties for claims in negotiation.

By Order in Council, the Indian Claims Commission will formally close its doors on March 31, 2009. This is one of the last reports that will be completed by this Commission.

To download report – PDF