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...."
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.
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
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