Rarihokwats.
<e-notes> from four_arrows@canada.com
Evening Edition -- Ottawa, 12 June 2007

A long-awaited announcement by the Conservative Government to set up a new land claims process was delivered today by Prime Minister Stephen Harper. “Canada will be a better, stronger, more united country when all its citizens enjoy full equality of opportunity,” declared Harper.

At first glance, the news was met with great approval. AFN National Chief Phil Fontaine praised it “as one piece in a large puzzle”. Vice-Chief Shawn Atlee said he was “very happy”.

Mr. Harper called the plan “revolutionary”, “a quantum-leap forward”, “an historic breakthrough”. “Instead of letting disputes over land and compensation drag on forever, fuelling anger, frustration and uncertainty, they will be solved once and for all by impartial judges," Harper said. As the details sunk in, however, it seems the highly-touted announcement falls far short of either the promises or the minimum  requirements of fixing the badly-broken and discredited land claims process.

Although the media has speculated that the timing of the announcement was intended to reduce the potential of confrontation, chances are it will have little effect in reducing the heat expected for the Day of Action June 29.

At Caledonia, speaking for those at the former housing development since February 2006, Jamie Jamieson told Sue Bailey of Canadian Press, "Right here and now, it doesn't change one thing. . . It doesn't settle anything. It doesn't give me hope. At any point, Stephen Harper could step in ... but he doesn't."

The government’s plan sounded very much like a remake of the highly-criticized Bill C-6, passed by Parliament in 2003 but not proclaimed as law. The main difference is the new tribunal’s authority will increase to $150-m. Claims over that amount will be settled by Cabinet.

Problematic Details of the “New Approach”

1. There will be no reform of “Outstanding  Business”, the federal government’s policy on specific claims.  The legal test to whether a claim is valid will be based upon an assessment of whether there is an “outstanding lawful obligation”. Other  criteria in the policy will not be changed. Problem: The Senate Report recommended adopting New Guiding Principles including fairness and dialogue in developing reforms.

2. The Government states the Tribunal will be staffed by three existing, retired, or to-be-appointed superior court judges, later to be increased to a total of six. Decisions of the Tribunal will be final. However, an application for judicial review could be made to the Federal Court. Problem: apparently the tribunal will get claims only after “negotiations fail”. In other words, until the government allows a claim to go to the tribunal, it will remain in “negotiations”. Problem: three judges? 800 claims in the backlog and more coming in?

3. Access to the Tribunal will be “metered”. That is, no more claims can be before the Tribunal than it has money to award for the year. If, for example, the Tribunal makes five awards totalling $250-m, no other claims can be accepted by the Tribunal until the following year.

4.  The government will make unilateral appointments of the judges. “Impartial judges” are not likely to be seen as being the equivalent of  “a truly independent tribunal.”

5.  The Government says Indian Affairs officials will work with the AFN over the summer to draft a bill for introduction in the House in September.  Problem: Bills are drafted by highly-specialized Justice Department experts, not by Indian Affairs bureaucrats. Bills are drafted according to “drafting instructions” which have been passed by Cabinet. Bills then go back before Cabinet for approval before being introduced. Problem: The announcement did not set out what the government would insist upon as pre-determined provisions of the Bill, meaning already-passed “drafting instructions”. Previous experience (Bill C-52 in 1984, the last time it was tried) was that the “jointly-written Bill” turns out not to be the Bill actually introduced in the House. As Anita Neville, Liberal critic, said, she hoped “the legislation has not already been written.”

6. Minister Prentice says he will endeavour to get the Bill passed within 6 months, with the assistance of the AFN to get opposition parties on board.  Sept – Dec:  Appointments will be made to the Commission and 3 judges to the Tribunal.  Jan 2008: the new Commission and Tribunal will be operational. Problems: accommodations, staffing, etc., are more likely to take up to three years.

7. No further consultation is planned on the “new approach”. DIAND states, “As there have been numerous studies and extensive consultations with First Nations on these issues in the past, the goal is to conclude these discussions [with the AFN] quickly so legislation can be brought forward in the fall of 2007.”

8.  The Prime Minister said the Bill would help clear a backlog of more than 800 cases. Problem: the announcement contained no details whatsoever as to how this was to be accomplished.

9.  The Prime Minister said the legislation, if passed,  would commit $250-million a year for ten years passed, for specific land-claims research and compensation. Problem: tradition is that one Parliament cannot make commitments another Parliament has to fulfil. Usually five years is the outside limit.

10.  The Prime Minister said the Indian Specific Claims Commission would be refocused to concentrate on dispute resolution. Problem: Government must consent for a claim to go to dispute resolution.

11.   The current DIAND system is designed to permit only a limited number of claims from moving forward each year to match funds allocated for settlements. Until there are increased human resources dedicated to the claims process in DIAND, including additional money to pay Justice Canada for its legal services, the current backlog will continue. Problem: no additional funds were announced.

12. Currently, Indian Affairs officials and Justice Department officials work in separate compartments. Huge problems result with lost files, lack of coordination, poor communications. The Senate Report recommended they work in teams in a common location. Problem: the new approach did not address this recommendation.

13. Most First Nations do not have extra money on hand to properly research and prepare claims submissions. The Senate Report recommended funding be provided. Problem: this recommendation was not addressed .

Other Government Proposed Changes

What new measures will be put in place to speed up internal government procedures?

The goal is for all new claims to receive a preliminary assessment within six months to identify those that qualify for negotiation and to sort them for faster processing. Similar claims will be bundled at the research and assessment stages to speed up decisions regarding their legitimacy. Small value claims will undergo an expedited legal review to quickly conclude whether they will be accepted or declined for negotiation.

In addition, there will be a streamlined approach to processing in order to better address the diversity and complexity of specific claims. Special efforts will be made to negotiate small value claims more quickly -- as those account for about 50 per cent of cases now languishing in the clogged system. Very large claims, valued at $150 million or more, which currently bog down the system, will be referred for separate processing so they can be dealt with outside the policy and processed in a way that better responds to their size and complexity.

What tools will be used to help the government sort claims for processing?

Key to this new approach will be maximizing the wealth of research studies and data amassed over the past thirty years as Canada has worked on these issues. Greater use will be made of existing data bases and other easily accessible sources of information to support the early review process and other improvements.

Will other tools be used to resolve disputes before resorting to the tribunal?

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. Before that happens, Canada and First Nations must have somewhere to turn when negotiations sour. Mediation is an excellent tool that can help parties in a dispute to reach mutually beneficial agreements. Canada recognizes that this tool should be used more often in stalled negotiations and is committed to increasing its use.

What will happen to the current Commission once the new tribunal is in place?

The Indian Specific Claims Commission (ISCC) has been of assistance to Canada and First Nations, providing valuable facilitation and mediation services over the past sixteen years. Once the new tribunal is in place, it will be important not to lose the Commission's experience and expertise in this crucial area.

To make sure this doesn't happen, the ISCC will no longer conduct any new inquiries into claims that have been rejected. Its mandate will be changed to focus exclusively on dispute resolution services. These services can help Canada and First Nations in over-coming impasses at all stages of the process. As a third party, the revitalized Commission would only consider claims as defined by the Specific Claims Policy.

Will the ISCC continue to operate while work to establish the tribunal is underway?

Yes. A transition plan will be developed to ensure that work presently underway by the current Commission can be properly completed in the coming year, if that is the wish of the First Nation with the rejected claim.

The Senate Report: Does The “New Approach” Measure Up?

In February 2007, the Senate adopted a report of the Standing Senate Committee on Aboriginal Peoples, chaired by Senator Gerry St. Germain. The government claimed the announcement “mirrors closely” recommendations made in that report, entitled, Negotiations or Confrontations? It’s Canada’s Choice. The report’s recommendations and the Government’s “New Approach:

1) Increasing Funds for Settlements

That the Government of Canarda establishes a dedicated fund for the payment of SpecificClaims settlements. Accepted.

 

That Specific Claims be identified as contingent liabilities. No action.

These funds shall:

1. not be allocated to other spending priorities. Partially accepted.
2. not lapse at the end of the fiscal year and any unused funds in a given fiscal year be carried forward to subsequent fiscal years. Accepted.
3. be for an amount no less than $250 million per year with said amount to be allocated annually to the fund. Accepted.

2) Establishing Independent Body within 2 Years

1. That the Government of Canada start work immediately to establish a new body independent of government with the mandate and power to resolve Specific Claims. Partially accepted.
2. That the new body be established in full partnership with First Nations. Not accepted.
3. That the joint process for establishing the new body be sufficiently resourced  to enable the body to be operational within two (2) years of the next budget date. Not known
4. That the new body be fully capable of reaching settlement agreements on claims within five (5) years of their submission to the independent body. Not dealt with.
5. That the Government of Canada repeals the Specific Claims Resolution Act. Not dealt with.

3) Improving the Existing Process by Providing Additional Resources.

1. That the Government of Canada increase the financial and human resources for Specific Claims resolution at the Department of Indian Affairs and Northern Development (DIAND) and the Department of Justice (DOJ) in order to improve the existing process and thus move a significant portion of the unresolved claims forward to resolution before the new body is in operation. Not done.
2. That the Government of Canada ensures that human resources assigned to Specific Claims at DIAND and DOJ are working in teams in a common location in order to improve communication, file management, and the timely resolution of valid claims. Not done.
3. That the Government of Canada provide sufficient funding for the human and financial resources that First Nations require to research and prepare their claims submissions. Not done.
4. That the Government of Canada ensures that First Nations have equal access to government records necessary for documenting their Specific Claims. Not addressed.

4) Adopting New Guiding Principles

1. That the principles of fairness, inclusion, dialogue and recognition of regional differences be used as guidelines for both the development of a new independent body and for any reforms to the existing process in the interim. Not done. Contrary position taken.

The 1998 Joint Task Force Report: Does the “New Approach” Measure Up?

According to Minister Prentice, the legislative elements of new specific claims reform initiative follow the main recommendations of the 1998 Joint Task Force Report.

That Report set out a draft legislative proposal for a reformed specific claims process, defining its key features as including:

Elimination of Canada’s conflict of interest through an independent legislative mechanism, to report directly to Parliament and First Nations.The new approach does this.

Establishment of both a Commission to facilitate negotiations, and a Tribunal to resolve disputes in cases of failed negotiations. The new approach appears to do this  – but only for those claims that the government agrees to negotiate, and for those that make it to the door of the tribunal.

Tribunal authority to make binding decisions on the validity of claims, compensation criteria and compensation awards, subject to a budgetary allocation of settlement funds over a five-year period. The potential is there, but the answer will depend upon the legislation.

Definition of issues within the jurisdiction of the Commission.Appears to be no change in claims policy in this regard.

Independent funding for First Nations research and negotiations.Not known if this will be so.

Joint review after five years, to include consideration of outstanding matters such as lawful obligations arising from Aboriginal rights. Uncertainty as to whether review will be joint, and whether other issues will be included.

AFN Resolution, 2004

Among The Concerns That Must Be Addressed In The Specific Claims System Are:

• A Balanced And Fair Appointments Process (Not Agreed to in New Approach),
• The Independence Of The New Bodies (Degree of independence not known at this time)
• Proper And Lawful Definitions Of Specific Claims (There will be no change in policy)
• The Need For Efficient And Expeditious resolResolution Of Claims (not known at this time)
• Fair Access To The System For All Claims,  Including Larger Ones (not known at this time)
• And That Adequate Resources To Ensure Proper Functioning Of The System Are Provided. (Not addressed)

A DIAND History

History of Calls For and Efforts to Create an Independent Tribunal on Specific Claims

<http://www.ainc-inac.gc.ca/ps/clm/fct1-eng.asp>

Since 1947, there have been numerous calls for an independent body to adjudicate specific claims. Over the past 60 years, the concept of such an independent body has been a recurring theme in Canadian public policy discussion. There have also been several attempts over the years to create an independent claims body with the power to make binding decisions on government. However, to date, none of these initiatives has succeeded.

1947: In July 1947, the Special Joint Committee of the Senate and the House of Commons reported:

"That a Commission, in the nature of the Claims Commission, be set up with the least possible delay to inquire into the terms of the Indian treaties... and to appraise and settle in a just and equitable manner any claims or grievances arising thereunder.”

1961: In 1961, a Joint Committee of the House and Senate reiterated the recommendation for a Claims Commission. In March 1962, the first draft legislation for a Claims Commission was approved by then Prime Minister Diefenbaker's Cabinet; however, this draft legislation was never introduced because of the 1963 election call.

1963: Bill C-130, entitled the Indian Claims Act, was introduced into the House of Commons by then Prime Minister Lester Pearson on December 14, 1963, but withdrawn to permit consultation with First Nations.

1965: An Act with the same title was re-introduced by the Prime Minister Pearson's government on June 21, 1965, but died on the Order Paper due to the 1965 election.

1969: For whatever reason, the Indian Affairs chronology omits the Indian Claims Commission which was a part of the 1969 White Paper, whose objective was to make Indians “disappear” within Canada’ legal system. To accomplish this, claims would have to settled once and for all, a process the government estimated could take three years. University of Regina President Lloyd Barber took a leave of absence to do take on the task.¹

1973: Calder decision, Supreme Court of Canada Canada's Specific Claims Policy was established to assist First Nations in addressing their specific claims through negotiations with the government as an alternative to litigation. A process was put in place to deal with these claims, which includes an assessment by Canada to whether it owes a lawful obligation to a First Nation and negotiation of a fair and just settlement to honor its obligations.

1979: an unpublished report prepared for Canada about its administrative process for resolving specific claims cited 'conflicting duties' in the federal government's involvement in claims settlements. The report recommended the creation of an independent body which would "for all purposes be a specialized court."

1983: the "Penner Report" called for a quasi-judicial process for managing failed negotiations and the neutral facilitation of negotiated settlements.

1990 (March): the House of Commons Standing Committee reiterated the need for an independent claims body in a report entitled Unfinished Business: An Agenda for All Canadians in the 1990's. A joint Canada-First Nations working group looked at creating a permanent, legislative entity with tribunal-like powers.

1991 (January, post-Oka): the Indian Specific Claims Commission (ISCC) was created under the federal Inquiries Act primarily as an alternative to the courts for First Nations whose specific claims have been rejected by Canada. In such cases, a First Nation can refer its claim to the Commission to conduct an independent review of the government's decision. If requested, the ISCC can also provide mediation and facilitation services to help Canada and First Nations reach an agreement. The Commission was only intended as an interim measure, until a permanent independent body with adjudicative powers could be created. In its annual reports to Parliament over the past ten years, the ISCC repeated its recommendation that such a permanent body should be created.

1992-1993:  Subsequent attempts on the part of the Government of Canada and the Assembly of First Nations (AFN) to agree upon the form and content of claims reform did not meet with success in the end. In 1992-1993, a Joint Working Group, composed of representatives from both Canada and the AFN, failed to achieve agreement or finalize a report.

1996: the Royal Commission on Aboriginal Peoples recommended an independent lands and treaties tribunal to replace the ISCC. This followed extensive consultations with First Nation people across the country.

1998: Two years later, in a report entitled Aboriginal Rights in Canada: An Agenda for Action, the Canadian Bar Association recommended "the creation of a legislative- based Specific Claims Tribunal with a clearly defined mandate to adjudicate the resolution of specific claims."

1998: the Joint First Nations-Canada Task Force on Specific Claims Policy Reform recommended an independent commission to assess claims as well as a tribunal to assist in resolving disputes.

2003 (Nov.): the Specific Claims Resolution Act received Royal Assent. The Act would have allowed binding decisions on the validity of claims and compensation amounts valued up to $10-million, but was rejected by First Nations and never implemented. One of First Nations' key concerns with the legislation was the financial limit on tribunal decisions.

2007: The Standing Senate Committee on Aboriginal Peoples recently conducted a thorough review of the specific claims process. The recommendations in its report, entitled Negotiation or Confrontation: It's Canada's Choice, were accepted by the Senate in February 2007. The Senate report pinpointed the lack of independent adjudication and the slow pace of the current process as the key problems. It recommended that the government create an independent claims body with decision making powers, dedicate $250 million in funding per year to paying settlements and implement other improvements, such as putting more resources into the negotiation process.

In June 2007, the Government of Canada announces the development of a new approach to claims.

Footnotes

1.In June 1969, the Minister of Indian Affairs and Northern Development, Jean Chrétien, released a formal Statement of theGovernment of Canada on Indian Policy (the White Paper) that addressed the subject of aboriginal claims to land.

The Indian Claims Commission, December 1969, resulted from the following statement included in the White Paper: "the Government will appoint a Commissioner to consult with the Indians and to study and recommend acceptable procedures for the adjudication of claims."

The Indian Claims Commission was established under Order in Council, P.C. 2405, 19 December 1969 under Part I of the Inquiries Act (R.S.C., 1952, c.154) and on the recommendation of the Prime Minister. The Commission was mandated to consult with authorized representatives of the Indians and, (a) to receive and study the grievances arising in respect of: (i) the performance of the terms of treaties and agreements formally entered into by representatives of the Indians and the Crown; and (ii) the administration of moneys and lands pursuant to schemes established by legislation for the benefit of the Indians; (b) to recommend measures to be taken by the Government of Canada to provide for the adjudication of the claims received that he considers can be demonstrated to require special action in relation to any group or groups of Indians; and (c) to advise as to categories of claims that, in this judgement, ought to be referred to the courts or to any special quasi-judicial or administrative bodies that he recommends as being desirable for adjudication of specific awards.

According to Dr. Barber, it was clear that the Indians Claims Commission was unpopular from the start because of the White Paper itself: "When I was appointed to the position in late 1969, Indian opposition to the White Paper was powerful and growing. The office of commissioner was rejected by Indian leaders because it was seen as a creature of the White Paper and because the Commission's terms of reference appeared to preclude any examination of the question of aboriginal rights."

The Indian Claims Commission, therefore, was limited to an exploratory and advisory role rather than one with explicit powers of adjudication. In March 1977, at the time when the Indian Claims Commission was superseded by the Canadian Indian Rights Commission.