Kahkewistahaw 1907 Specific Claim Trust
Overview of Settlement
This settlement relates to the taking, pursuant to a surrender, in 1907 of approximately 33, 281 acres of land from the Kahkewistahaw Reserve No. 72. In March 1989, the First Nation submitted a claim to Canada under Canada’s Specific Claims Policy. The First Nation’s claim was rejected three times by Canada. As a result, the First Nation requested the Indian Claims Commission to conduct an Inquiry into the First Nation’s Claim. In February of 1997, the Indian Claims Commission released its report concluding that the First Nation’s claim should be accepted for negotiations under the Specific Claims Policy. On December 18, 1997, Canada agreed with the Indian Claims Commission and accepted the First Nation’s claim for negotiation under the Specific Claims Policy on the basis that the Crown had breached its fiduciary obligation to the First Nation by accepting the surrender in 1907.
The Kahkewistahaw Negotiating Team negotiated the settlement of the claim from 1998 to 2002 and was approved by Band Members who were 18 years and older as of November 25, 2002. Following the completion of several loss of use studies and Elder testimonials, compensation was settled at $94,650,00.00 that included $4,000.00 for Negotiating Costs for the settlement of the 1907 Surrender Claim. This among, les $3,247,398 which was used to repay funds received by the First Nation under an interest-free loan program was deposited in a Trust Account established under the Trust Agreement. In addition to the Compensation subject to satisfying a number of conditions, the First Nation will have the opportunity to have up to 29,000 acres of land converted to reserve status for the use and benefit of the Kahkewistahaw First Nation.
In return for Canada paying the Compensation and providing the First nation with the opportunity to set apart land as reserve, the First Nation must provide Canada with a full and final Release and an Indemnity (Subject to certain exclusions which are set out in Article 5.3 of the Settlement Agreement) for any claims relating to the 1907 Surrender Claim, the 1907 Surrender Court Action, any costs incurred by the First Nation and certain other items. This means that, when the Members approved this settlement, the First Nation will have no further ability to pursue this claim against Canada, except for those matters specifically excluded from the release.
It should be noted that as a result of the Compensation being deposited to the Trust Account established under the terms of the Trust Agreement, Canada will not have any responsibility or liability for the management and use of the Compensation. The Compensation and Negotiation costs were to be paid to the Kahkewistahaw First Nation only in the event that the Settlement Agreement and the Trust Agreement were successfully ratified by the Members of the First Nation and that certain other conditions were met.
The Compensation was paid out in installments that began in 2002, 2003, 2004, 2005 and 2006.
Under the Settlement Agreement the First Nation can have up to 29,000 acres of new land set apart as a reserve. The number of principles that are important to understand when considering the Land purchase provision in the Settlement Agreement. These include the following:
- The terms of the Settlement Agreement do not require the First Nation to purchase any land;
- It is the First Nation’s responsibility to identify and obtain any lands, on a willing seller/willing buyer basis or otherwise, that it wants to have set apart as a reserve. The First Nation will, therefore, identify what lands it wants to purchase. There is no guarantee that the land taken from the Kahkewistahaw Reserve in 1907 will be returned to the reserve unless the First Nation wants and is able to purchase this land.
- Before any Land can go into reserve status a number of conditions must be satisfied. In particular it must be approved by Canada pursuant to its policies, including Canada’s Additions to Reserve Policy.
- An environmental review must be conducted on the Land by Canada. In the event that any Toxic Substances or contaminants in excess of those criteria used by Canada from time to time are found on any land purchased by the First Nation, the First Nation must at its own expense, arrange for the removal or remediation of the Toxic Substances or contaminants. The First Nation should, however, be very careful when purchasing land to ensure that it is clear of any Toxic Substances or contaminants, prior to purchasing the land; and
- The First Nation is responsible to pay for all costs related to purchasing the lands and having the lands set aside as reserve lands. Including paying tax loss compensation, except for hose matters which Canada must undertake itself.
Under the terms of the Trust Agreement, a group of 5 Trustees (who must be Members of the First Nation) in conjunction with the First Nation (represented by the Chief and Council) and a financial institution will be responsible to administer the amount of the Compensation deposited to the Trust Account plus any Revenues Realized on investments and land purchased until it goes into reserve status, according to the rules an procedures set out in the Trust Agreement.”
There were minimal changes to the current Trust Agreement, however the changes were necessary to ensure further land purchases were possible; as well as giving our Membership the ability to benefit from our Trust fund, according to the Community Development Account (CDA). For a completed signed copy of the Kahkewistahaw 1907 Specific Claim Trust Agreement, please contact our office.
This overview was prepared by Stephen Pillipow, October 2002 and grammatically updated September 2018.
Our Settlement Agreement is dated for reference September 26, 2002.
Our original Trust Agreement is dated for reference December 4, 2002.
Our current Trust Agreement dated for reference December 21, 2017 was approved by Kahkewistahaw Band Members in a Ratification Vote.
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