The Specific Claims Process

The resolution of a specific claim involves a long and arduous process, one which can take several years to accomplish.

First, the specific claim is prepared. This includes documentary research and a historical narrative, which is a summary of all the documents. Then, a lawyer looks at the documents and research and decides whether all of this reveals a breach of duty (or illegality) by the Government of Canada. If there appears to be a breach of duty, the lawyer then prepares a legal opinion based on all the information provided and sends it to the band council. The council reviews it and if it is acceptable, the council then passes a BCR allowing the SCRC to submit the claim to the government. On occasion, the research or legal work may determine that there is no claim. In that case, the SCRC asks the government if some of the legal budget can be used for more research.  All documents along with the historical narrative and legal opinion are then submitted to the Specific Claims Branch. The Branch does a historical report (sometimes called a research report), where they look at the material sent and then do their own documentary research. The Specific Claims Branch sends their report to a lawyer from the Department of Justice. That lawyer does his/her own legal opinion, which then goes back to the Specific Claims Branch. The Specific Claims Branch prepares a recommendation package. This package includes all materials along with a memo saying whether they recommend the claim to be accepted, accepted in part, or rejected.

The whole package then goes to the Claims Advisory Committee in Ottawa. This committee, which meets regularly, includes higher level officials from the Department of Justice and the Department of Indian Affairs. They make the final recommendation to the Minister of Indian Affairs. The Minister decides whether to follow the recommendation or not.  A letter goes to the Band asking them to provide a BCR agreeing to negotiations. Once the Government of Canada receives approval from the band, it appoints a negotiator from the Specific Claims Branch. The band applies for loan funding from the Research and Negotiation Funding Unit (RNFU). These negotiations typically take from three to five years, or more.A settlement agreement is worked out which includes cash and land components and decides how the land is held (fee simple or reserve land). The government negotiator has to get this approved. The band also has to get approval for the deal from their membership. (If the claim is rejected, the band has the option of bringing   it the Specific Claims Tribunal).