Report of the Aboriginal Justice Inquiry of Manitoba
Terms of Reference
Treaty Land Entitlement and
the Northern Flood Agreement
When First Nations signed treaties with the federal government certain lands were promised to the First Nations. Those promises were not kept in full. Treaty Land Entitlement (TLE) land is that which is owed to First Nations under the treaties signed with the Government of Canada. The AJI did not find this to be a complicated issue. In fact, it said,
There should be no controversy today surrounding the issue of treaty land entitlement. In fact, treaty land entitlement should not even be an outstanding issue. It is a subject that is so simple and straightforward that it never should have arisen as a source of conflict in the first place. (AJI, Volume I, page 162)
In 1930, through the Manitoba Natural Resources Transfer Agreement (NRTA), which is incorporated into the Constitution Act 1930, all Crown lands were transferred to Manitoba from Canada, subject to a legal requirement to provide unoccupied lands to Canada to enable it to meet its obligations under treaties with First Nations. The Aboriginal Justice Inquiry made a number of comments with respect to TLE, and, in particular, on the formula to be used to calculate the amount of land owed to First Nations.
The AJI recommended that:
Current population figures be used for entitlement in conjunction with the formula set out in each treaty to determine the precise amount of land that is owed to each First Nation.
The government of Manitoba reinstitute a moratorium on the disposal of Crown land in the Province and that no Crown land be made available to third parties by grant or lease until all First Nation land selection has been made or without the consent of the treaty land entitlement bands in the region.
A Treaty Land Entitlement Commission be created for Manitoba consisting of five members, namely, one provincial nominee, one federal nominee, two nominees from the Assembly of Manitoba Chiefs, and a neutral chairperson selected by the other members of the Commission. This Commission should be empowered to render binding decisions on any disputes that may arise over:
The exact population of an entitlement band.
The amount of land originally set aside for the reserve that is to be deducted from the current treaty entitlement.
The selection of Crown lands to fulfil the entitlement obligation.
The location of boundaries.
The amount of financial compensation for the delay.
1) The Treaty Land Entitlement Commission be created by complementary federal and provincial legislation with the endorsement of the Assembly of Manitoba Chiefs. We further recommend that this legislation be drafted jointly by both governments in conjunction with the treaty land entitlement First Nations.
The Commission was advised that there were currently 31 First Nations with TLE claims in Manitoba. Of
these 31 First Nations, 27 claims have been accepted by Canada, and seven First Nations have signed individual TLE settlements. They are:
The four First Nations in the Island Lake area (Wasagamaak, Garden Hill, St. Theresa Point, and Red Sucker Lake), which signed an agreement on March 14, 1994
The Long Plains First Nation, which signed an agreement on August 3, 1994
The Swan Lake First Nation, which signed an agreement in March 1995
Roseau River First Nation, which signed an agreement in March 1996.
On May 29, 1997, 19 First Nations signed the Manitoba Treaty Land Entitlement Framework Agreement.
Under this agreement, 445,754 hectares of land will be transferred to First Nation reserves to make up for the shortfall that occurred at the time the reserves were created. The Province of Manitoba will provide 399,008 hectares of Crown land, and Canada will contribute $76,000,000.00, a portion of which will be applied to the purchase of up to 46,444 hectares of land from private owners for those First Nations who do not have a sufficient amount of Crown land in their vicinity for transfer to a First Nations reserve. All the land obtained from private owners will be purchased on a willing seller/willing buyer basis.
The three parties to the Framework Agreement used the population figures as of October 14, 1993 (the date of signing of the protocol for agreement negotiations), to determine land entitlement. The Commission was advised that land amounts, financial compensation, principles for land selection, and dispute resolution mechanisms are provided for in the three-party Framework Agreement, and that they were the result of negotiations between the TLE Committee representing the 19 First Nations and Canada, and Manitoba.
From discussions with the parties, it appears that the TLE process is now working reasonably well. Further information on the Treaty Land Entitlement process can be found at the TLE Inc. website, http://www.tle.mb.ca.
The Manitoba Metis Federation raised with the AJIC the issue that lands being selected by First Nations under the TLE process may be subject to Aboriginal rights claims from Métis people. As noted in the previous chapter, the AJIC has recommended that the Manitoba government enter into discussions with the MMF to address matters within provincial jurisdiction of Manitoba that have been the subject of AJI and the RCAP recommendations.
The AJI described the Northern Flood Agreement (NFA) in the following terms:
The Northern Flood Agreement was signed by Canada, Manitoba, Manitoba Hydro and the Northern Flood
Committee representing the five First Nations (Nelson House, Norway House, Cross Lake, Split Lake and York
Factory) whose reserve lands were to be flooded by the major hydro-electric projects planned. The agreement provided for an exchange of four acres for each acre flooded, the expansion and protection of wildlife harvesting rights, five million dollars to be paid over five years to support economic development projects on the reserves and promises of employment opportunities. The agreement was also to deal with any adverse effects to the "lands, pursuits, activities and lifestyles of reserve residents." The five First Nations were guaranteed a role in future resource development as well as in wildlife management and environmental protection. Certain water level guarantees were made and Manitoba Hydro generally accepted responsibility for any negative consequences that might emanate from the flooding. In return, Hydro obtained the right to flood reserve lands as part of the Churchill Diversion Project. Disputes over any adverse effects were to be settled by arbitration.
Manitoba Hydro obtained what it wanted as it proceeded with this massive project. The reaction from Aboriginal people has been far from positive. Only reserve residents were represented in the negotiations and were to receive any of the benefits. Many Métis and off-reserve Indians in the region still complain bitterly that their homes and traplines were destroyed and their hunting and fishing rights violated without any consultation or compensation. (AJI, Volume I, page 173-174)
The AJI recommended that:
The governments of Manitoba and Canada recognize the Northern Flood Agreement as a treaty. The two governments should honour and properly implement the NFA's terms.
Appropriate measures be taken to ensure that equivalent rights are granted by agreement to the other Aboriginal people affected by the flooding.
A moratorium be placed on major natural resource development projects unless, and until, agreements or treaties are reached with the Aboriginal people in the region who might be negatively affected by such projects in order to respect their Aboriginal or treaty rights in the territory concerned.
On December 15, 2000, the Minister of Aboriginal and Northern Affairs, the Honourable Eric Robinson, made a ministerial statement in the Legislative Assembly concerning the NFA. He noted that it was of immediate importance to the government to address the devastating consequences of the flooding of First Nations lands for Hydro development. In that statement, he also stated that the Government of Manitoba recognized that the NFA is a modern-day treaty, and expressed the government's commitment to honour and properly implement the terms of the NFA as recommended by the Commissioners of the Aboriginal Justice Inquiry in 1991. The Minister went on to note that the government acknowledges that comprehensive implementation agreements had been signed with four of the five NFA First Nations as a method of addressing and implementing the terms of the NFA.
The Department of Aboriginal and Northern Affairs advise the Commission that the Manitoba government and Manitoba Hydro are negotiating currently with the Northern Affairs communities of Nelson House, Norway House, and Cross Lake, and thereby addressing the concerns of Métis people and non-status Indians as well as status Indians who are living off-reserve and have been affected by the Manitoba Hydro projects. The Manitoba Metis Federation has informed the AJIC that it does not concur with the position that negotiations with the Northern Affairs communities address Métis concerns. The MMF position is that only the MMF and its locals and regional boards represent Métis interests.
The Commission was advised that the Manitoba government and Manitoba Hydro have indicated they would
be prepared to participate in negotiations with other flood-affected Métis and non-status Indian communities on the basis of the policy commitment to treat fairly persons affected by the project. Currently, negotiations are ongoing with the non-reserve communities of Nelson House, Norway House, and Cross Lake.
The Aboriginal Justice Implementation Commission recommends that:
Any future, major, natural resource developments not proceed, unless and until agreements or treaties are reached with the Aboriginal people and communities in the region, including the Manitoba Metis Federation and its locals and regions, who might be negatively affected by such projects, in order to respect their Aboriginal, treaty, or other rights in the territory concerned.