RE: Submission to Canada’s Five Year Review of the Specific Claims Action Plan: Justice at Last

 Following is the Specific Claim Research Centre's submission to Canada’s mandated five year review of the Specific Claims Action Plan: Justice at Last.
The Specific Claims Research Centre represents fifty First Nations in British Columbia.


Justice at Last promised to bring about the fair just and timely resolution of specific claims through negotiation and mediation so that Canada’s lawful obligations with respect to Indian lands and assets were finally fulfilled and resolved. This was to be achieved through a number of measures:

1.    Creating “impartiality and fairness” through the creation of a new Independent Claims Tribunal with the power to make “binding decisions”.
2.    Establishing “greater transparency” through “new funding arrangements” to determine “how well the government is handling claims” and whether “adequate funding is available”.
3.    “Faster processing” of claims to “improve internal government procedures”, with “separate arrangements” to handle claims over $150 million.
4.    “Better access to mediation” through a “neutral third party” where “every reasonable effort will be made to achieve negotiated settlements and cases would only go to the tribunal when all other avenues have been exhausted”.
Justice at Last also renewed and strengthened Canada’s commitment to pursue settlement of Specific Claims through negotiations.
Specific Claims Research Centre respectfully offers the following observations on the specific claims process so far:

Minimum Standards

Minimum standards have been put in place to ensure that all the required components of a specific claim are present and that documents are complete and legible. While the idea of minimum standards is a good one, at times it has been applied in a rigid and adversarial way. If a claim has one or more missing or illegible documents, it is returned to the client. It then has to be re-submitted; the claim  loses its priority in the claims queue and it can take an additional six months  before it is reviewed again. Minimum standards could be used in a more collaborative way. Once Canada notes the deficiencies in a particular claim, the First Nation representative could be contacted to identify which documents are missing or illegible and suggestions for improvements could then be made. The First Nation could address the deficiencies and the claim could proceed. This whole process could be done in an informal way by phone or email in the spirit of cooperation.
No matter how the minimum standards are applied, they have to be applied realistically. These documents are often well over one hundred years old and the best available copy may be of poor quality or difficult to read. Both Canada and the First Nations will have to do their best to sort through these problems together.

Partially Accepted Claims

Often, Canada will accept certain aspects of a claim and will refuse to negotiate others. This, in itself, is not necessarily a problem. The difficulty arises when Canada advises that it will require a release of all aspects of a claim, even those that it is refusing to negotiate. This means that First Nations are forced to either provide a release of the entire claim while only being compensated for a fraction of it or to withdraw the claim and then break it up into several pieces and submit each one as a separate specific claim. Neither of those scenarios are in the interests of either the First Nations or Canada.  A simple solution to this problem would be for Canada to limit the scope of the release to the portions of a claim that it believes to be valid. The First Nation would then be at liberty to either re-submit the rejected portions of the  claim or take the rejected portions to the Specific Claims Tribunal.

Claims Over $150 Million

Canada promised the Assembly of First Nations that they would develop a specific process to deal with claims over $150 million. To date, this has not been done. Instead, Canada has developed a policy that requires these claims to receive Cabinet approval  in order to be negotiated. This is  a process that does not involve the First Nation and has nothing to do with the validity of the claim. We suggest that Canada negotiate with the Assembly of First Nations to determine a mutually acceptable process for resolving these claims.

The Three Year Timeline

The Specific Claims Tribunal Act says that if a claim has been under negotiation for more than three years, the First Nation has the option of taking it to the Specific Claims Tribunal. There is nothing wrong with the First Nation having the option of taking their claim to the Tribunal after three years of unsuccessful negotiations. On the other hand, if the claims negotiations are proceeding well, then the

parties should take the time necessary to complete the negotiations. Canada should not treat the provision in the Specific Claims Tribunal Act as a time limit or deadline.