Lac La Ronge Defeated on Appeal: A Setback for Treaty Land Entitlement Claims

Band's Population in 1897 to Serve as Basis for Treaty 6 Land Entitlement

The Lac La Ronge Indian Band is a party to Treaty 6 in Saskatchewan. That Treaty sets out a formula for reserve land entitlement. The Treaty clearly stated how much land was to be allotted to each family - one square mile per family of five or 128 acres per capita. It did not state, however, when the population was to be calculated in order to determine the land entitlement.

The Lac La Ronge Indian Band argued that submitted before the trial judge of the Saskatchewan Court of Queen's Bench that the population should be calculated when the land was surveyed or set apart (the "current population formula"). Saskatchewan and Canada submitted that the population should be calculated when the land was first surveyed (the "first survey formula").

In this case, land was surveyed for Lac La Ronge on several occasions, but each time the land allotted did not meet the Band's total entitlement. The trial judge concluded that depending on which formula was used, the Band either had a large outstanding entitlement (using the "current population formula"), or it had been allotted land that exceeded its original entitlement (using the "first survey formula").

The case essentially rested on the interpretation of the reserve land entitlement clause. The trial judge therefore applied principles of Treaty interpretation. Treaties must be interpreted by determining the intention of the parties at the time the Treaty was signed, and are to be interpreted generously in favour of the aboriginal group. Any interpretation must reflect the intentions of both parties.

In coming to his decision, the trial judge took into consideration the formula for allotment for other Bands subject to other treaties, the language of Treaty 6, its historical context, and the execution of Treaty 6. He concluded that it was the intention of the parties that the land entitlement would be calculated at the date when the Treaty obligation was fulfilled in its entirety. He held that "if fulfillment extended over a period of time, the treaty obligation was not met until the end of the process and the extent of that obligation fell to be determined by reference to the population at the end".

Thus, the trial judge found that the land entitlement population was to be calculated as the Band argued, in accordance with the "current population formula". This decision meant that the Crown would have owed huge amounts of land (or financial compensation) to the Lac La Ronge Indian Band. Saskatchewan and Canada, however, appealed to the Saskatchewan Court of Appeal, which overturned the trial judge's decision. The Supreme Court of Canada denied leave to appeal – bringing the litigation to an end.

The Court of Appeal considered the appropriate date when the reserve land entitlement was to be calculated: the date the reserve was surveyed and set apart ("current population formula"), as the Band argued, or the date the land was first surveyed (the "first survey formula"), as Canada and Saskatchewan argued. The Court looked at the written text of Treaty 6, the Treaty negotiations, the historical context in which the negotiations were carried out and the subsequent conduct of the parties.

The Court agreed with Canada and Saskatchewan, and found that an interpretation that calculates the land entitlement at the date of first survey, subject to certain adjustments to permit the admission of persons who would later join the Band, is the interpretation that best accords with the common intention of both parties. One of the factors the Court took into account is that the nomadic nature of the Lac La Ronge Indians made it difficult to identify population figures at that time. The Court said that:

The people were nomadic and in the process of establishing bands. The Indians themselves were not ready to choose the location of the reserve. In my opinion, the wording of Treaty No. 6 was designed to permit flexibility and to give the Indians the opportunity to select where they wanted to locate.

One further reason the Court of Appeal overturned the trial judge's decision is that it disagreed that the Band should have its entitlement continuously upgraded as its population grew. The Court held that "an interpretation which results in a continually expanding obligation based upon increasing Band populations is not consistent with the Crown's objectives".

If the Court of Appeal had upheld the trial judge's decision, the Crown would have owed huge amounts of land (or financial compensation) to the Lac La Ronge First Nation. Many other signatories to numbered treaties would have had similar entitlements. Canada, by failing to meet its Treaty obligations promptly, would have exposed itself to a huge, and continually growing liability.

The Court of Appeal, however, interpreted the provisions of Treaty 6 as fixing the land entitlement formula at the time the land was first surveyed: "[t]he entitlement is fixed or crystallizes at the time of first survey or census as adjusted. The failure to allot the entire land may result in a claim for damages, but it does not change the date for the calculation of treaty entitlement".

Leave to appeal to the Supreme Court of Canada has been denied to the Lac La Ronge Indian Band.

Despite the outcome of the appeal, the Lac La Ronge Indian Band was successful on one point. Since the Band did not receive its full entitlement in 1897 (the date of the first survey) it was entitled to 1 sq. mile per Indian for each member who had been hunting apart from the Band at the time the Treaty was signed. The number of these later adherents was not identified until 1909. No additional land was granted in 1909 to account for those new Band members. The Band has, however, received 167.4 sq. miles per capita over the last several decades, so the Court found that the Band was not entitled to any more land based on the Treaty. The Court of Appeal, therefore, sent this matter back to the trial Court for a determination of whether compensation should be awarded for loss of opportunity for use of the land that was not reserved in 1909.