On June 6 2013 the Canadian government ratified a settlement agreement with the Tsuu T’ina Nation that was reached this past April regarding three specific land claims. These claims, known collectively as the Glenmore Reservoir land claims, were the result of actions taken in the 1930s regarding land in the Weaselhead area.
The $20.8 million settlement has now concluded claim negotiations that had been ongoing since 1996. With the potential for the largest ever sale of Tsuu T’ina land for the still under negotiations for the ring road, it is important to understand the context of historic land deals, and the problems and sensitivities that arose from them.
The ‘1931 Surrender for Sale’ (Weaselhead) claim
In 1931 the City of Calgary purchased 593.5 acres of the Tsuu T’ina reserve (then the Sarcee reserve) as a part of the Glenmore Reservoir project. The land was required in order to protect the headwaters of the Elbow river as it flowed into the reservoir, and to allow for the reservoir to partially fill and seasonally flood what was then reserve land.
The sale of the land required the Tsuu T’ina to first ‘surrender’ it to the Crown, a process which essentially removes land from reserve status so that it can be sold. The 193.5 acre portion of the Weaselhead north of the Elbow river had actually been surrendered in 1913 as part of cancelled land sale, while the 400 acre portion south of the Elbow river required a new surrender. A sale price of $50 per acre, or $29,675 total, was negotiated on May 4 1931 between the City and representatives of the Tsuu T’ina (pictured below). By the end of the month the south portion of the Weaselhead was surrendered, and by the end of the year the land was sold to the City.
The Tsuu T’ina originally filed a land claim in 1996 over problems with the way the deal was handled by the Federal government, though the Nation stated that they were seeking compensation rather than the land to be returned. In 2000, City Alderman Barry Erskine claimed that the Tsuu T’ina had challenged the sale price in the 1930s, and the transaction was upheld in court. He may have been referring to the Glenmore Inquiry of 1932, headed up by Justice Ewing. In giving evidence the year after the sale occurred, independent valuator Fred Filteau stated that the City generally overpaid when acquiring land for the Glenmore Reservoir, with the Tsuu T’ina land being the only reported exception. He states that while the city paid $30,046 for the land (it’s unknown why there is a discrepancy here with the official figure given by the Department of Indian Affairs) his valuation places the land value at $32,642.50, a difference of $2596.50.
In the 1970s it was reported that other land owners were paid from $111 to almost $400 per acre for land required for the Reservoir project. Despite this, the claim revolved not just around the compensation received for the land in the 1930s, but also on the conduct of the Federal government in handling the sale.
The claim record states: “… both the surrender of land in 1913 and the surrender of land in 1931 were not valid because the federal government breached its fiduciary obligation to the First Nation due to the presence of duress, undue influence and negligent misrepresentation and because the surrender bargains were unconscionable. It is further alleged that the federal government failed to follow the terms and conditions associated with the 1913 surrender and unlawfully transferred approximately 193.5 acres of land in question to the City of Calgary in 1931.”
In the 1913 surrender, a condition was placed on the sale of the land that it was to be sold for no less than about $90-$140 per acre, and the 1931 sale price of $50 per acre did not conform to this. In addition to accusations of the infliction of duress and undue influence, there was public mention of the Federal government failing to protect the interests of the Nation. This includes claims that the government failed to ensure that the land would revert back to the Nation once the area was no longer required for reservoir purposes when it was converted into a park, and for the loss of traditional harvesting opportunities within the Weaselhead area.
Read more about the Weaselhead here.
The ‘Priddis Trail’ claim
When the City purchased the Weaselhead, the land included an existing road that ran through the area, called the Priddis Trail. The right-of-way for the road was considered to have been surrendered in 1900 by the Tsuu T’ina, at which time the Government of the Northwest Territories established a public road on the 66-foot-wide strip of land. The portion of this road that crossed the Weaselhead would become a point of contention and the focus of this land claim.
The Priddis Trail claim revolves around the interpretation of the 1900 surrender: whether the land was surrendered as an easement, allowing the Province to build the road on the reserve without actually acquiring the land itself as the Tsuu T’ina contend, or whether the surrender actually transferred the title of the land, as understood by the Province. (The issues around the 1900 surrender of the Priddis Trail corridor are even more complicated than laid out in the Nation’s land claim. For more details see this article on the disputed parcel of land.)
The Nation’s view that the land for the road was provided for use under an easement, not as a land transfer, is neither bolstered nor diminished by a reading of the original surrender. An early draft of the surrender from 1899 states: “We the Chief and Member of the Sarcee Band of Indians at present residing on the said Reserve agree to surrender to Her Majesty a right of way for public purposes through our Reserve from a point at or near Priddis to the north east corner known as Weasel Head…”, while the final surrender speaks of the Nation surrendering the land “to be used for road purposes” and to allow for the ‘dedication of the said portion of land for road purposes.” The language is ambiguous at best, and with no formal transfer of the ownership and title of the land following the surrender, and no compensation provided, it is easy to see why the road was considered to be provided under an easement on Tsuu T’ina land.
From the outset, however, the Province was satisfied that it did hold the title to the land. This situation was apparently formalized in 1930, when the title to all of the ‘undedicated’ federal crown land in Alberta was granted to the Province under the Constitution Act of 1930. (Federal lawyers in the 1950s would later imply that the land was not owned by the Province until the passage of the 1930 law). Even though the right-of-way was considered to be owned by the Province at the time of the Weaselhead sale, the small 10.23 acre portion that crossed the area was not excluded from the 1931 deal, and was thus apparently sold by the Nation to the City at that time (shown in the map below). Despite the confusion and the apparent sale, the right-of-way would continue to be held by the Province until portions of the Weaselhead, including the road contained therein, were annexed by the City in the 1950s and 1980s. To this day confusion exists as to whether the City or the Province owns certain portions of the Priddis Trail right-of-way. In addition, the status of at least one small portion of the road claimed by the City remains unclear, as it appears not be subject to this recent settlement.
The Tsuu T’ina’s land claim states: “The (Tsuu T’ina) sought confirmation that the 10.23-acre portion of the Priddis Trail located within the lands surrendered in 1900, and sold to the City of Calgary in 1931, did not legally pass to the City and that the legal title to the Priddis Trail continues to be vested in the Crown as part of the reserve. The (Tsuu T’ina) further alleged that, in light of the Osoyoos decision, the City of Calgary did not acquire any legal interest in the Priddis Trail lands because the (Tsuu T’ina) surrendered only a limited right of way interest for only so long as these lands were used for road purposes. When the Priddis Trail land ceased to be used for road purposes, it was to revert to the Crown to be held as reserve land for the use and benefit of the (Tsuu T’ina).”
Read more about the Priddis Trail here.
The ‘1930 Surrender for Gravel Lease’ claim
In 1930 the Federal Government signed a lease agreement with the contractor that was building the Glenmore Dam, to allow for the removal of gravel from the Weaselhead area. The Bennett and White Construction Company received a five-year lease to remove gravel “from any portion of the Elbow River and its banks, from the Weasel Head Bridge to the Eastern Boundary of the Reserve.”, intended to be used in the construction of the dam. The lease would cost the company $250 per year and allowed for 1,000 loads of gravel to be removed annually from the reserve. Gravel in excess of this amount was to be charged at a rate of 25¢ per load. The documentation on file with the federal government shows an agreement signed between a Bennett and White company representative and the Deputy of the Superintendent General of Indian Affairs, though nothing is included to indicate the consent of the Tsuu T’ina themselves nor a surrender for the lease by the Nation.
According to the claim report, it is “alleged that the 1930 surrender for a gravel lease is invalid. Alternatively, if the surrender is valid, Canada breached a pre-surrender fiduciary duty to the (Tsuu T’ina) by assigning a five-year gravel lease in favour of Bennett & White Construction Company Limited to the City of Calgary without the consent of the (Tsuu T’ina) or payment of any further compensation for the extraction of gravel for construction of the Glenmore Reservoir.”
The settlement of the three claims that form the Glenmore Reservoir land claims have resolved issues that have been ongoing for over 80 years, and removes much of the uncertainty that surrounds the Weaselhead area. Chief Roy Whitney stated “On behalf of Tsuu T’ina citizens, and my Council colleagues, and particularly our elders, I want to thank the Government of Canada, the Minister and his department for coming to the table respectfully and completing this land claim settlement… The settlement resolves a longstanding issue for our people and was accomplished through patient negotiation by Tsuu T’ina Chiefs and Councils before me. The settlement will aid in the Nation’s goal of economic self-sufficiency over the long term.”
In order for the settlement to bring closure to these issues, the Tsuu T’ina signed a binding release of its claims “to ensure certainty and finality.”