Canada: The Venne Decision

Last Updated: April 17 2012
Article by Jeremiah Kowalchuk

Since 1996, the Lac La Ronge Indian Band of Saskatchewan has been the focus of significant attention from that province's courts. The attention resulted from a dispute between the Band and the Governments of Canada and Saskatchewan relating to reserve land entitlement under Treaty 6. The Government of Canada and the Plains and Wood Cree signed Treaty 6 in 1876, and predecessors of the Lac La Ronge Band adhered to the Treaty in 1889. The promise to provide reserve land says:

"...Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for farming lands...provided all such reserves shall not exceed in all one square mile for each family of five, or in that proportion for larger or smaller families...."

The Problem

Although the Treaty is clear that one square mile of land was to be reserved for each family of five (equaling 128 acres per person), it is unclear as to when you count the Band members in order to calculate the land. Do you take the population that was last surveyed? Or do you take the population at the time the land was fi rst surveyed? The first method is commonly called the "current population formula" and the second the "date of first survey formula."

For many Bands, which formula applied was never a problem, because the reserve was set aside immediately after the first survey. For others, like Lac La Ronge, surveys took place, but the full amount of land was never provided. This led to shortfalls and further surveys, and then additional parcels of land. The issue of which formula to use is important, as there are significant differences between populations on the date of first survey (normally done in the late 1800s or early 1900s) and today.

When it was first surveyed in 1897, the Lac La Ronge Band was entitled to about31,000 acres. If a 31,000-acre reserve had been set aside for the Band in 1897 or shortly thereafter, the Band would have no claim today. But multiple surveys occurred, and by 1964 about 107,000 acres had been set aside. Using the date of fi rst survey formula, the Band has therefore received signifi cantly more land than it was originally owed. However, using the current population formula the Band is owed about 800,000 acres in addition to the land already received.

Arguing that the current population formula should apply, the Lac La Ronge Band brought an action against Canada and Saskatchewan, claiming that the Band had never received all the land it was owed.

Trial Decision

At trial, Justice Gerein agreed with the Band that the proper method for calculating land entitlement was the current population formula. Relying on legal principles of treaty interpretation set out in the Marshall case by the Supreme Court, he analyzed Treaty 6 and the subsequent conduct of the Band and the Crown to determine the intent of the parties. Did they intend the reserve to be calculated using the population on the date of first survey, even if the land was not set aside until much later? Or did they intend it to be calculated when the Crown's obligation was fulfilled in its entirety?

Justice Gerein kept in mind that treaties are interpreted liberally, by considering the unique cultural and linguistic differences between the parties. Ultimately, the court decided that the parties to Treaty 6 intended that the Band's entitlement would be calculated when the Crown's obligation was entirely fulfi lled. As a result, because land was allotted over a period of time and never in full, the complete entitlement was not met until the end of the process. The land claim therefore had to be settled by the Crown by applying the current population formula.

Court of Appeal

Unfortunately for the Lac La Ronge Band, the Saskatchewan Court of Appeal disagreed with the lower court's decision. The appellate court also considered the principles of treaty interpretation, but came to the opposite conclusion. It looked at the intent of the parties when the Treaty was signed and their subsequent conduct regarding reserve allocation, and concluded the parties intended the land to be calculated based on the Band's population at or near the time the land was first surveyed. It reversed Justice Gerein's decision regarding the current population method of calculation, and held that the population on the date of first survey, plus reasonable additions for late adherents, was the number to be used.

Supreme Court of Canada

The final chapter in the Lac La Ronge Band's legal battles with Canada and Saskatchewan recently concluded. On October 17, 2002, the Band's application for leave to appeal to the Supreme Court of Canada was dismissed. The result is that the Band is not entitled to any more reserve land, and the Saskatchewan Court of Appeal's decision will likely become an important precedent in Canadian law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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