Summary of Makwa Sahgaiehcan First Nation v Her Majesty the Queen in Right of Canada, 2019 SCTC 5

January 14, 2020

 Although the taking of the surrender incidentally served the interests of the DIA, the transaction was not exploitative or improvident, since it was in the interest of the band to receive compensation for settler occupation. Therefore, the acceptance of the surrender by the Governor in Council did not breach the fiduciary duties of the Crown (paras 354 and 356).

 However, the Crown breached its post-surrender fiduciary duties when the DIA rejected the land surveyor’s recommendations and sold the subdivisions of the surrendered lands for less than fair market value (para 357).

 The 1939 surrender was found to have been unlawful, and therefore a valid claim pursuant to paragraph 14(1)(c) SCTA.



 As the settler village, known as the Village of Loon Lake, expanded, it sought to obtain additional lands from the Reserve for future townsite expansion. Negotiations therefore occurred for seven years between the Village of Loon Lake, the DIA and the province.

 During those years, three band votes were taken in regard to the further taking. The first vote occurred in November 1954 and 20 out of 25 voting band members were in favour of the surrender and sale of 67.65 acres of the Reserve. However, the vote was rejected by the DIA since the majority of eligible voting band members did not vote. A second surrender meeting was held in July 1955 and only 8 voting band members were present, all of whom opposed the surrender

 In 1957, the Province of Saskatchewan suggested an exchange of 100 acres of Reserve land for 480 acres of provincial Crown land. A vote was taken in June 1957 and 19 voting band members out of 23 voted in favor of the exchange proposal. Senior officials did not deem the vote valid since not all eligible band voters voted. Again, at the time, men and of band did not allow women to vote on the issue.

 In June 1958, the exchange was confirmed by Order in Council PC 1958-886 pursuant to section 35 of the Indian Act, 1952, in conjunction with The Municipal Expropriation Act, RSS 1953, c 151 read together with The Community Planning Act, SS 1957, c 48.

Position of the Parties

 Makwa argued that the DIA achieved indirectly the result that it could not achieve directly by obtaining a surrender. The DIA thus acted in an improper manner and breached its fiduciary duties (para 396). Also, Makwa argued the provincial legislation did not allow the taking and selling of land without the consent of the owner in absence of a public purpose (para 412).

 The Crown argued that the taking was made in compliance with the Indian Act and the relevant provincial legislation. Plus, the Crown argued its pre-surrender fiduciary duty consisted of preventing exploitative bargains only, which it met (paras 50 and 419).


 Although the vote held in 1957 was not taken in compliance with the surrender provisions of the Indian Act, the vote it represented, along with the previous votes, a strong indication of the desire of the membership to proceed to the exchange. Therefore, the transaction was neither exploitative nor improvident, and there was no proof that it was inequitable (para 403).

 The Tribunal found that the Crown did not seek to facilitate the exchange while male members of the band obstructed female members’ right to vote. The circumstances made the compliance with the Indian Act impossible. Plus, the Governor in Council had the authority to proceed to such expropriation. Therefore, the Crown did not breach its fiduciary duty under the Indian Act (paras 394, 397, 399 and 437).

 The 1958 townsite expansion was found to have been lawful.



 At the same time the Village of Loon Lake requested land for the expansion of the townsite, it asked for land for a school site. In June 1957, the Indian agent met with the band Council, and the latter adopted a Band Council Resolution agreeing to give the School Unit Board six acres of the Reserve for $75.00 per acre for the construction of the Meadow Lake School.

 The transaction was confirmed by Order in Council PC 1958-614, issued in May 1958.

Position of the Parties

 Makwa argued the Crown did not ensure minimal impairment of the band’s interest in the taking of the six acres, and that the Crown should have consulted with the band regarding the proposed location. Makwa also argued the area taken was in excess of the School Unit Board immediate needs (para 440).

 The Crown argued that there is no evidence of an improper motive or of wrongdoing by Crown officials regarding the taking. The Crown argued it complied with the Indian Act and that it acted in the best interest of the band (paras 51 and 52).


 The Tribunal found that there had been no breach of statutory or fiduciary duties with regards to the taking of six acres for the construction of Meadow Lake School since the band consented to release the lands, although the consent of the band was not required (paras 441 and 442).

 There was a valid public purpose and Makwa did not prove excessive impairment or the absence of need. No evidence showed that a leasehold tenure would have been more adequate under the circumstances (para 442).

 The 1957 school expropriation was found to have been lawful.

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