Rights of Indigenous Peoples
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Not long after the Treaties were signed the First Nations lost a significant part of reserve land through government actions and questionable surrenders.
Expropriation and Leases
In 1911 the Indian Act was amended to allow the government to remove any First Nation from their reserve or any part of it, if the reserve was next to a town of 8000 people or more. The consent of the First Nation was not required.
With this amendment, the federal government granted itself the ability to displace Indigenous people on sought-after land for Euro-Canadian settlement. Both Indigenous groups and government opponents claimed that this was inappropriate and an abuse of power.
The government also gave themselves the power to take reserve land without the consent of the First Nation if it was needed for a public work.
In giving themselves this power over reserve lands, the federal government contravened the Indian Act. Federal officials were aware that this practice consisted an infringement upon the Treaty rights of First Nations peoples, but proceeded anyways. This behaviour was in fact illegal and displayed the government's disregard to uphold agreements between them and First Nations peoples.
Reserve land can still be expropriated today but only under a law that allows the expropriation of private property without the owner's consent and only with the approval of Governor in Council.
The government could also lease land that they deemed to be uncultivated to settler farmers without the consent of the First Nation. Now reserve land can only be leased to non-members if the First Nation has designated it for this purpose and this has been approved by a majority vote of First Nation members.
Surrenders
Most of the early demand for surrenders came from speculators looking to make a profit off of surrendered reserve land. This included Department of Indian Affairs employees, their families and their business associates, even though this was prohibited under the Indian Act. At the time local farmers were not short of land although the government did everything they could to encourage settlers to come to the prairies. Railway development also created demands for surrenders. It raised the value of the land for speculators and in some cases surrenders were demanded to allow for things like railway stations.
The Department of Indian Affairs was looking to cut costs and surrenders generated income that the Department used to provide things they were already obligated to provide without cost to the First Nations under the Treaties.
In a breach of Treaty Rights the Department took the view that if the population of the First Nation had declined they could take back any reserve land beyond what was currently needed to meet the per member allotments in the Treaties. On this basis a government official reported that fully a third of reserve land in the prairie provinces should be considered as excess land.
Given these attitudes on the part of the government and the financial incentives for the government and its employees, it is not surprising that is highly questionable whether the First Nations actually consented to many of these surrenders. Factors such as lack of notice for meetings about surrender, no vote or voting only by those at the meeting, no consent from First Nation leadership, and inducements and intimidation to gain consent, all call the validity of the consent into question.
The Commission’s interest in prairie treaty surrenders between 1896 and 1911 stems, first, from the sheer number and size of the surrenders that occurred during this brief and shameful period in Canadian history. Over 100 surrenders of treaty reserve land were obtained by the Crown in this region between the late 1890s and the 1930s. In the study period alone – 1896 to 1911 – 21 per cent of the lands reserved to prairie First Nations were surrendered to the Crown to make way for western expansion and an influx of immigrants. These lands had been promised under treaties signed only a few decades earlier, in the 1870s, and in many cases had been set aside just a few years before their surrender.
— First Nation Land Surrenders on the Prairies: Indian Claims Commission
