The main page on this issue is quite messy with all the updates, etc. Here is a summary of where we stand as of fall 2010. The RDOS has not heard back from INAC or any other agency on this issue since May.
Update 07 Dec 2010: I noticed that INAC does have a "frequently asked questions" page for the PIB-KVR issue. The information it contains is roughly consistent with what follows.
- The CPR currently owns the West Bench/Sage Mesa KVR lands in fee simple.
- Previous litigation involving other parcels (not the parcels on the West Bench) established the principle that lands taken from reserves for railways must be returned to reserves once they are no longer used for railway purposes. These rulings from the 1980s are now part of the common law.
- As the property owner, the CPR has decided to return the KVR lands to the PIB to settle lawsuits. This is the CPR's decision.
- First Nations in Canada do not "own" land so the CPR is actually transferring the land to the Government of Canada, which must then designate the lands as "reserve" through an Order-In-Council. In this way, the lands are effectively transferred to the PIB per (3)
- Designating crown land as reserve triggers the federal "Additions to Reserve" policy. However, given (1-3) above, the Government of Canada views this as a "legal obligation" (their words). That is, the Government of Canada's role in this is merely to facilitate the transfer in (3).
- As our lawyer (Young, Anderson), Minister Day, and INAC have all made clear early on, the Government of Canada really has little discretion in this. To quote our lawyer (letter Feb 12, 2010): "It is doubtful that, in its fiduciary capacity, the federal Crown could transfer title to these lands to a third party [...] once the PIB has expressed a wish to have the lands restored to Reserve status."
- The only role in this for the RDOS is to attempt to negotiate some kind of joint/harmonized land use rules for adjacent parcels in RDOS/PIB jurisdictions. Although such "negotiation" is mandatory under the ATR policy, "agreement" is not.
Please let me know if you have any questions about all this.