Ottawa (December 21, 2001) – The Indian Claims Commission has recommended that the federal government accept for negotiation a land claim by the Esketemc First Nation. Commissioners Daniel Bellegarde and Sheila Purdy announced the decision in a report released today.

The First Nation maintains that certain lands in British Columbia’s Alkali Lake area, about 290 kilometres northeast of Vancouver, were either wrongfully disallowed or improperly reduced in size by the federal and provincial governments in 1923.

The First Nation contends that the McKenna-McBride Commission— a joint Royal Commission of federal and British Columbia representatives established in 1912 to conduct investigations into the reserve requirements of British Columbia’s aboriginal population—recognized the band’s desperate need for additional lands by recommending that certain lands already inhabited and being farmed by band members should become reserves. Unknown to the First Nation at the time, however, a further review by the two governments, known as the Ditchburn-Clark review, recommended that two of these parcels, already designated by the McKenna-McBride Commission as Indian Reserve 15 and 17, be disallowed as reserves, and that the third, IR 18, be severely reduced. It was only decades later that members of the Esketemc First Nation learned that the two governments had agreed not to confirm the lands in question as reserves. The First Nation claims that these lands had already become reserves in law and should have been preserved for the band.

The Esketemc First Nation (which was known as the Alkali Lake Band when the events in question occurred) first submitted its claim to Canada in 1992. The claim was rejected; further submissions over the next seven years produced the same result. On June 17, 1999, the First Nation asked the Indian Claims Commission to conduct an inquiry into the federal government’s reasons for rejecting their claim.

Commissioners Daniel Bellegarde, Carole Corcoran and Sheila Purdy formed the panel that heard evidence from the Esketemc community, received written arguments, and heard oral submissions from the First Nation and the government of Canada. Today’s report, however, reflects the opinions of only two of the commissioners, Commissioner Corcoran having passed away suddenly on February 15, 2001.

"This claim and the issues it raises — in particular reserve creation and the fiduciary relationship between Canada and non-Treaty First Nations of British Columbia — is rooted in a period of tremendous uncertainty in relations among the British Columbia government, federal government and First Nations," observed Commissioner Sheila Purdy.

The report points out that the history of reserve creation in B.C. from 1850 to 1924 is both lengthy and complex: "In the present case. . .the evidence, in our view, did not fully explore factual issues such as colonial reserve creation policy, the role of the Allied Tribes and other Indian organizations in the reserve allocation process in British Columbia, or the subsequent reference of the reserve and aboriginal title issues to [Parliament] in 1926."

The report concludes that the Government of Canada owes an outstanding lawful obligation to the Esketemc First Nation. "We base our conclusion on fiduciary principles," commented Commissioner Bellegarde. "We believe that Canada breached its obligations to the ancestors of the present-day Esketemc First Nation when, in the circumstances that followed the Report of the McKenna-McBride Commission, the government failed to act in the best interests of the First Nation and ensure that its needs for reserve lands were met."

The Commission found that, when the government of Canada agreed with British Columbia’s proposal in the Ditchburn-Clark review to disallow IR 15, 17, and reduce IR 18 in 1923, it failed to adequately scrutinize and assess the merits of the proposal from the band’s point of view, to inform the band of the proposal or provide it with information as to the alternatives. Although Canada knew that the proposal would not be acceptable to the band, it neglected to seek the band’s instructions as to how to respond. The Commission concluded that the proposal was improvident and that the federal government breached its fiduciary obligation to the band by approving it.

The Indian Claims Commission was established in 1991 to examine, at the request of a First Nation, specific claims rejected by the Department of Indian Affairs.

Alkali Lake is situated on Alkali Lake Creek, a tributary of the Fraser River in central British Columbia, roughly 290 kilometres northeast of Vancouver. In the late 1700s, this area was home to the Shuswap people, ancestors of the Alkali Lake Band, who are known today as the Esketemc First Nation.

For many years, the Shuswap roamed widely throughout the area, hunting, trapping and trading. The annual salmon fishery formed the mainstay of the community’s economy. Following the heady gold rush days of the late 1850s, white settlers began trickling into the Fraser Valley in search of the excellent farming and ranching lands.

When British Columbia became a colony in 1858, it adopted a policy of pre-emption, which permitted settlers to obtain land for little or no cost simply by residing on and improving the land. However, British Columbia’s law differed from the federal legislation in that it allowed settlement to precede the completion of surveys. The danger to First Nations was obvious: because few Indian lands had been surveyed prior to the influx of land-hungry settlers, it became exceedingly difficult to protect aboriginal lands or reserves deemed desirable by incoming settlers.

For the aboriginal population, British Columbia’s entry into Confederation in 1871 represented a last chance that this policy directed at them might be changed. The opportunity was lost, however: B.C.’s attitude with respect to land rights for Indians in the years following Confederation continued to be one of intransigence.

In 1875, the federal and provincial governments agreed to appoint Reserve Commissioners to set aside reserve lands for British Columbia bands. In 1881, Commissioner Peter O’Reilly allocated 3,587.5 acres comprising seven reserves to the Alkali Lake Band (as the Esketemc First Nation was then known); a further 4,760 acres in seven more reserves were allotted in 1895. By the terms of the 1875 agreement, however, reserve lands surrendered by a B.C. band, unlike reserves relinquished by bands elsewhere in Canada, could not be sold or leased for the benefit of the band, but instead would revert to and become the property of the province.

Between 1875 and 1912, aboriginal activism grew as the province’s aboriginal population became more and more disenchanted with the failure of the federal and provincial governments to protect their reserve lands from encroachment by settlers, and to recognize their aboriginal title or compensate them for its extinguishment. In early 1908, the reserve creation process that had been established in 1875 broke down.

In 1910, Prime Minister Wilfrid Laurier promised to commence legal proceedings to determine the aboriginal title of Indians in British Columbia; however, he was defeated in the federal election of 1911 before this could be done.

Laurier’s successor, Robert Borden, decided to reopen negotiations on all aspects of the Indian question. He appointed J.A.J. McKenna to investigate the Indians’ land claims and represent Canada in negotiating a means of resolving outstanding reserve land issues with British Columbia Premier Richard McBride. In the fall of 1912, the two agreed on the termination of the province’s reversionary interest and the establishment of a Royal Commission (which became known as the McKenna-McBride Commission) to visit each band and identify its reserve land requirements.

The McKenna-McBride Commission visited the Alkali Lake Band in the summer of 1914. The chief informed the commissioners that the band was using all available lands but these were inadequate to support the band’s farming needs: it required additional grazing and hay lands.

Several band members applied for additional reserves on provincial Crown lands they were already using.

In February 1916, the Royal Commission issued its first order, confirming all 14 of the Band’s existing reserves; within 48 hours, it reconsidered its earlier order, eliminating the 1,230-acre IR 6. Two days later, it issued orders allowing six new reserves, including IR 15, 17 and IR 18, the land at the heart of the present claim. In all, the Royal Commission recommended a net increase in the Band’s reserves of 4,685 acres.

The McKenna-McBride Commission’s final report was released in May 1916. However, a new provincial government under Premier John Oliver convinced the federal government that, before acceptance of the report, the Royal Commission’s work should be reviewed to address several perceived problems. In late 1920, Canada appointed W. E. Ditchburn to work on this review with provincial representative J. W. Clark. The Esketemc First Nation had been willing to pin its hopes on the Royal Commission’s findings but, unknown to the First Nation at the time, Ditchburn and Clark dashed these expectations in their review, completed in 1923, by eliminating IR 15 and 17 and reducing IR 18 from 3,992 acres to 640 acres. Although the marginally useful 1,230 acres in IR 6 were restored to the Band, a total of 4,952 acres recommended by the Royal Commission was disallowed.

After much lobbying by an organization of British Columbia bands referred to as the Allied Tribes, in 1926 the federal government agreed to create a Special Joint Committee of the Senate and House of Commons to investigate, among other things, the work of the Royal Commission as revised by Ditchburn and Clark, and the Indians’ dissatisfaction with the state of aboriginal title. B.C. declined to participate. The committee refused to re-open the reserve question; further, it denied the existence of aboriginal title and would not support a judicial reference on the issue. The federal government drove the point home by enacting section 141 of the Indian Act, which made it an offence for Indians to raise funds for the prosecution of actions to protect their interests.

With adoption of the Special Joint Committee’s report, the only step to be completed to resolve the reserve question in British Columbia was to survey the reserves and convey title from the province to the federal government. Yet for another ten years, new issues continued to thwart this process.

Finally, in August 1938, following many discussions and much compromise, the issue was settled. The ultimate effect of the McKenna-McBride Commission’s report, as amended by Ditchburn and Clark, was to increase the Alkali Lake Band’s reserve holdings by 1,116 acres. However, it is the additional 4,952 acres in IR 15, 17 and 18, disallowed by Ditchburn and Clark, that are at issue in the present claim.