September 22, 1992 marked the execution of the Treaty Land Entitlement Framework Agreement (the "Framework Agreement") by Her Majesty the Queen in Right of Canada ("Canada"), Her Majesty the Queen in Right of Saskatchewan ("Saskatchewan") and twenty-two (22) of the twenty-six (26) Indian Bands in Saskatchewan which had established their claims to receive additional land under an existing Treaty. This right to receive additional land is generally referred to as "outstanding Treaty land entitlement". The four remaining Indian Bands had until March 1, 1993 to adhere to the Framework Agreement. For the purposes of this summary, all Indian Bands which are now, or hereafter become, parties to the Framework Agreement shall be referred to as the "Entitlement Bands".

The claims of some of the Entitlement Bands have been outstanding for a very significant period of time, some dating back to 1874 when Treaty Number Four was signed. Seven of the twenty-six Entitlement Bands are adherents to Treaty Number Four, seventeen are signatories to Treaty Number Six (signed in 1876), while the remaining two Entitlement Bands are adherents to Treaty Number Ten (signed in 1906).

Saskatchewan’s Legal Obligation NRTA

Canada's obligation to the Entitlement Bands is derived from the Treaties referred to above. Saskatchewan has legal obligations to Canada to provide "unoccupied Crown lands" for creation of Indian reserves, these legal obligations were created under an agreement between Canada and Saskatchewan called the Natural Resources Transfer Agreement (the "NRTA").

The NRTA was entered into in 1930 when Canada transferred virtually all federal Crown land and mineral resources in the Province to Saskatchewan. However, Saskatchewan agreed that the two governments would continue to set aside land for Indian reserves and that "unoccupied Crown lands" (previously held by Canada but now held by Saskatchewan) would be made available to honour Canada's treaty obligations.

1976 Saskatchewan Formula

Previous efforts to settle the outstanding Treaty land entitlement for Saskatchewan Indian Bands have been unsuccessful for a variety of reasons. What is commonly referred to as the "Saskatchewan Formula" or the " 1976 Agreement" was a "formula" negotiated in 1976 among the Federation of Saskatchewan Indian Nations (the "FSIN"), Saskatchewan and Canada. Unfortunately, the terms of the "Saskatchewan Formula" were never formalized in enough detail to allow for proper implementation. The "Saskatchewan Formula", if implemented, would have provided 946,532 acres for fifteen (15) Bands. This Formula used the Bands December 31, 1976 population statistics to arrive at the settlement acreage. The implementation of the "Saskatchewan Formula" was, however, plagued with many practical problems, not the least of which was a shortage of "unoccupied Crown land" of sufficient quality (and in the right geographical locations) to satisfy the affected Bands. As a result, the business of settling outstanding Treaty land entitlement had effectively ground to a halt by 1987, and eventually became embroiled in litigation.

OTC Report and Recommendations

Pursuant to a Memorandum of Agreement on June 8, 1989, the FSIN and the Minister of Indian Affairs and Northern Development (the "Minister") established the "Office of the Treaty Commissioner", an independent office with a mutually agreed to mandate and terms of reference. The Treaty Commissioner was to immediately consider two areas: Treaty land entitlement and education.

In May 1990, Treaty Commissioner Cliff Wright presented Chief Roland Crowe of the FSIN and the Minister with a "Report and Recommendations on Treaty Land Entitlement". The Report recommended a method to address and, hopefully, rectify the difficulties which prevented the settlement of outstanding Treaty land entitlement in Saskatchewan.

The Report proposed that the outstanding Treaty land entitlement obligations of Canada to the Entitlement Bands (and the related outstanding NRTA obligations of Saskatchewan to Canada) be settled on the basis of certain recommendations, including the "equity formula" set out in the Report.

The Report recognized the problems with implementing the "Saskatchewan Formula" (including the problems associated with inadequate amounts of "unoccupied Crown land"). The "equity formula" was designed to determine an outstanding acreage amount and a monetary payment based on this acreage for each Entitlement Band. The Band would be in a position to acquire land on the open market to fulfil its outstanding Treaty land entitlement. The existing case law, as it applies to treaty interpretation, clearly guided the Treaty Commissioner in his examination and the resulting Report.

Negotiations Begin

By late 1990 Canada, Saskatchewan, the FSIN and the Assembly of Entitlement Chiefs (the "AEC") agreed to negotiate the settlement of outstanding Treaty land entitlement in Saskatchewan based on the Treaty Commissioner's Report. In January 1991 the parties signed a Protocol Agreement governing certain aspects of their negotiations, and negotiations on the Framework Agreement formally commenced in earnest thereafter.

Framework Agreement

Negotiations were successfully concluded and, on September 22, 1992, culminated with the signing of the Framework Agreement by the Prime Minister of Canada, the Premier of Saskatchewan, the Chief of the FSIN and 22 of the 26 Chiefs of the Entitlement Bands.

It should always be remembered that the Framework Agreement is a negotiated settlement. It clearly acknowledges that, notwithstanding that the Entitlement Bands, Canada and Saskatchewan have differing opinions concerning the legal basis for settling outstanding Treaty land entitlement obligations, each of the parties has agreed that Canada's outstanding Treaty land entitlement obligations to Entitlement Bands (and Saskatchewan's related NRTA obligations to Canada) shall be fulfilled in accordance with the Framework Agreement.

The Framework Agreement is a "fair and liberal" resolution arrived at among the parties to fulfil outstanding Treaty land entitlement obligations. Treaty rights, other than land, are not dealt with in this Framework Agreement.

Next - The TLE Framework Agreement