Big Land Claim battle in southern Alberta wraps up in Federal Court

A judge in Calgary is hearing the final arguments in a long-running Aboriginal land claim that affects a large swath of territory in southern Alberta.

Blood Tribe believes its reserve rightfully stretches into Cardston and Waterton Lakes National Park

The Blood Tribe's reserve is the largest in Canada, stretching 1,400 square kilometres across southern Alberta. It's bigger than the cities of Vancouver, Calgary and Montreal combined. It's home to more than 12,000 people, according to Statistics Canada. (CBC)

A judge in Calgary is hearing the final arguments in a long-running Indigenous land claim that affects a large swath of territory in southern Alberta.

Lawyers representing the Crown and the Blood Tribe wrapped up their cases Thursday in what's become known as the Big Land Claim at Federal Court.

The band already occupies the largest reserve in Canada, stretching 1,400 square kilometres across the southwestern Alberta prairie, from west of Lethbridge south to Cardston.

But the Blood Tribe has long claimed its territory encompasses more land — everything from the St. Mary River in the east all the way to the Waterton River in the west, and south to the U.S. border — or from the rivers to the mountains.

Justice Russel Zinn is evaluating evidence from letters, oral history and a past government's intentions — including statements made by Canada's first prime minister, Sir John A. Macdonald — to try to determine whether the tribe's reserve should be bigger.

This week in Calgary, more than 110 people piled into a sweltering courtroom to hear the final arguments from both sides, with hundreds more watching on live feeds.

At its heart, this case is the story of how the dominion government settled the west, how rapid development helped give rise to the Blood Tribe's reserve, and how the band became unlikely neighbours with early Mormon settlers.

But it's also a story about land surveys, promises, expectations and misunderstandings.

Since the band started seeking the land claim in the 1970s, Ottawa has repeatedly argued the Blood Tribe isn't legally entitled to any more territory.

In 2003 the Indian Claims Commission conducted an inquiry into the Big Land Claim. Four years later, it ultimately dismissed the claim.

But the panel did find the federal government breached its fiduciary duty when it formed the Blood Tribe's territory and "arbitrarily" shrunk it the following year.

An account of history, but whose?

When the Canadian Government was drafting out reserve land, they used each band's population to calculate the Treaty Land Establishment (TLE). Those populations were typically calculated from "pay lists," which weren't necessarily a complete census, but considered, by the government of the time, to be pretty accurate.

These pay lists were also known as treaty annuities. They were an annual payment the Crown made to treaty band members.

In the Big Land Claim, these become quite important because the government used the population to plot out how big a reserve for a given band should be — in this case, the government was setting aside one square mile of land per five people.

An agreement in 1880 with the then-chief Red Crow exists. It was an agreement made to exchange one piece of land for another.

"A treaty is different than an agreement, it invokes spiritual, culture and sacred elements," Brendan Miller, one of the band's lawyers, said. "It's not simply a contract, it's a solemn contract elevated to the highest levels."

The size of the Blood Reserve should have been, in the tribe's position, based on th pay list population number from 1881, showing that the tribe had 3,640 members.

A historic map shows the boundaries as plotted out by surveyor John Nelson in 1882, and details about the size of the land are published in documents to the government and the public. This is the land the band believes they are owed.

And in a report to the government, that same surveyor writes he's plotted out 650 square miles for the Blood Tribe, in a laundry list that includes the Ponoka reserve, among others.

But, in 1883 the boundaries change significantly in Treaty 7. And this is the "solemn Treaty" the government believes finalizes the agreement.

Counts not reliable: Crown

So, what changed?

The Crown continues to argue that while the government was doing preliminary work — and setting aside land for a reserve — there was a sense that something was wrong with the pay lists.

They weren't reliable and may have been, for one reason or another, inflated.

So between 1882 and 1883, officials were scrambling to get a better idea of how many people were in the tribe and had, in the meantime, set aside land so that no one would settle on it until they had squared away the problems with the pay lists.

So, the boundaries were finalised, and, officials said Red Crow knew and understood those boundaries.

The Blood Tribe's lawyers see this differently. They argue that there was a ceremony — smudging and other Indigenous traditions — for the 1880 agreement with Red Crow that didn't happen in 1883, meaning the tribe doesn't see it as a legitimate agreement.

Judge questions Crown's argument

On Wednesday afternoon in court, the judge was skeptical. 

"I'm fairly convinced that whoever gave Nelson that number … while the number may not have been accurate and it was believed to have been accurate at the time," said Zinn.

He asked the lawyers whether drafting a map signalled to the world that those boundaries were, in fact, where the reserve was planned. 

"The responsibility [to find an accurate count] was on Canada," he said.

The Crown's lawyers say that it wasn't uncommon for the Canadian government to survey land, and then make tweaks and changes because a survey isn't what decided a reserve or finalized it,  the government had to make it official.

The maps were created to assist settlers and reduce conflicts, according to Canada's submissions. And they say, the Blood Tribe's lawyers are relying on two maps that did not, and could not, accurately depict established boundaries for the band's reserve.

The Canadian lawyers say nothing is missing, nothing was lost, no one was short-changed and there were no shenanigans.

And the band didn't raise any concerns with their boundaries until 1887, when a group of Mormons fled from the strict anti-polygamy laws in the United States.

They settled near what is the town of Cardston today.

And, that's when the Blood Tribe complained to the government, confused about why the group they called Manywives were on their land.

That's when the Crown says the Canadian government sent out someone to help then-chief Red Crow understand where the boundaries were. They say he was taken on a five-day, post to post tour of his reserve's southern boundary.

The Crown's lawyer said it was clear after that tour that Red Crow knew where the boundary was, that he was satisfied with it, and was prepared to complain if the boundary changed.

Final decision will take months

Zinn is expected to take months to prepare his final decision — and if he finds the Blood Tribe's arguments persuasive, there will be another hearing about what kind of remedies and compensation are appropriate.

Miller said this is a legal case but it also embodies reconciliation.

"I can't think of a case more coming within it, than this one," he said. And on Tuesday, the crowded room of band members nodded — some quietly making sounds of affirmation.

"This needs to be settled in order to reconciliation between Canada and the Blood."