The following comments were delivered by Robert Winogron at the the X International Seminar on Canadian Studies: Canada, managing social and cultural diversity, held at the University of Holguin in Holguín, Cuba between April 27-29, 2016.

Sponsored in part by Gowling WLG and attended by an international consortium of students, academics and diplomats, the conference marked the tenth anniversary of the Canadian studies program at the University of Holguin.

Gowling WLG provides extensive strategic advisory services to businesses looking to pursue trade and investment opportunities in Cuba. Learn more here.

Introduction

Prime Minister of Canada Justin Trudeau has stated on many occasions that there is no relationship more important to him and to Canada than the one with First Nations, Inuit and Metis – a relationship "built on the recognition that the constitutionally guaranteed rights of First Nations in Canada are a sacred obligation." He has publically committed that the Government of Canada will walk with First Nations on a path of true reconciliation in partnership and friendship.

Reconciliation has been defined as action to restore friendly relations … to cause to coexist in harmony. Reconciliation has been a consistent theme for the last several years in Canada and has not been limited to political circles. The Supreme Court of Canada has stated in Delgamuukw v. British Columbia that the “basic purpose of s. 35(1) [of the Canadian Constitution] is “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.” The Chief Justice added “Let us face it, we are all here to stay.” The Delgamuukw decision of the Supreme Court affirmed the goal of reconciliation specifically in the context of First Nations’ land claims.

The Chief Justice remarked in 2013,

Diversity is part of the Canadian fabric. We thrive on it. But it also produces moments of challenge. Managing diversity is the ongoing Canadian project. And in managing it, we define ourselves. One such moment — the ramifications of which we are still living with today — was the recognition in the mid-1990s of the constitutional imperative of achieving reconciliation between Canada’s First Nations and the Crown.1

Resolving historic claims of First Nations, known in Canada as “specific claims,” has been a priority of both First Nation claimants and First Nation representative groups and is seen as one of the paths toward reconciliation. Specific claims are claims by First Nations in Canada against the Crown and are based on breaches of lawful obligations related to First Nation’s lands and assets. Breaches of treaties, agreements, legislation or fiduciary duty are grounds for specific claims, as are illegal leases or dispositions of reserve lands, fraud or inadequate compensation for reserve lands.

The road toward reconciliation has been long and sometimes unpaved. To say that there has been criticism is a considerable understatement. It is useful to obtain a flavor for the history of how claims have been dealt with in Canada to understand the current state of affairs.

Background

Treaties have been the principle instrument through which the relationship between First Nations and the Crown has been defined for the last three centuries. The Crown entered into various treaties with First Nations and through many of these agreements, First Nations surrendered their interest in the land in exchange for one-time or ongoing benefits, ongoing rights and reserve lands.

The British Crown’s Royal Proclamation of 1763 set out procedures for the Crown to acquire lands from First Nations. These procedures have remained guiding principles for treaty-making and land surrenders. This allowed for the peaceful settlement and development of much of Canada. In 1876, the Government of Canada passed the Indian Act which, even today, legislates government responsibilities over many aspects of the lives of First Nations. It covers the management of assets and reserve lands.

Claims Arise

Assertions of outstanding commitments owed by Canada to First Nations groups remained largely unconsidered by government well into the 20th century. The Indian Act made it an offence for a lawyer to receive payment from a First Nation to bring a claim against the Crown during the years 1927 and 1951. When those provisions were repealed, First Nations started to make claims against the Crown to resolve their outstanding grievances.

Various initiatives over a large number of years were instituted to address the questions of First Nations’ claims against the Crown.

In 1963 and 1965, the government pursued a legislative initiative to provide for the “Disposition of Indian Claims.” The bill would have established a five member Commission with binding decision-making authority over five broad classes of claims, the power to award financial compensation with no prescribed limit and to fund claimants’ research of their claims. The Bill died on the Order Paper in fall 1965 and was not reinstated. In 1969, the Liberal government issued its “White Paper on Indian Policy.” It proposed the repeal of the Indian Act and the termination of distinct “Indian” legal status, while acknowledging the existence of limited government obligations toward Indians. The paper was later withdrawn and a Claims Commissioner was appointed to consider and make recommendations for the resolution of claims. First Nations groups objected to what was an ineffective mandate.

The 1973 decision of the Supreme Court of Canada in Calder confirmed that Aboriginal peoples’ historic occupation of the land gave rise to legal rights in the land that survived European settlement. The decision influenced the federal government to institute a new process for dealing with specific claims.

In 1974, the Office of Native Claims (ONC) was created to review claims arising from governmental failure to discharge “lawful obligations.” The same office represented the government in negotiations with First Nations. Five years later, a report to the ONC described the process as a “situation where a government agency has conflicting duties in relation to Indian claims.” The conclusion was that “the need for impartiality and the appearance of impartiality as well as finality . . . strongly argues for the establishment of an independent body separate from departmental structures for the settlement of specific claims.”

Specific Claims Policy

In 1982, the federal government issued a specific claims policy document entitled “Outstanding Business: A Native Claims Policy – Specific Claims.” Under the policy, claimants were required to establish the existence of “lawful obligations.” The policy articulated guidelines for the submission of claims and general criteria governing compensation. The process involved review by the ONC, review by the federal Department of Justice and ministerial acceptance or rejection of the claim. Where accepted, negotiation of settlements commenced.

The process was slow and perceived to be biased. First Nations groups and others criticized these policy measures and their implementation.

In 1983, the Penner Report issued a strong recommendation for a new claims policy, with a legislated process to be negotiated between Canada and First Nations representatives. The Report considered it “imperative that the new process be shielded from political intervention,” and proposed that legislation provide for both a neutral party to facilitate negotiated settlements, and a quasi-judicial process for instances of failed negotiations. A 1990 Report of the House of Commons Standing Committee on Aboriginal Affairs stated that the ongoing “high level of dissatisfaction” with claims policies, the “very slow rate” of processing, and the “recurring suggestion the process should be managed or monitored by a body or bodies independent of government.

Oka Crisis

In 1986, the specific claim of the Mohawks of Kanesatake was rejected. In 1990, a portion of the territory claimed served as the focus of dispute with the neighboring Municipality of Oka. At the heart of the crisis was the proposed expansion of a golf course and development of condominiums on disputed land that included a Mohawk burial ground. The issue turned into a crisis and resulted in the death of a police officer. Events of that summer of 1990 prompted both renewed calls for review of claims processes, and a measure of government responsiveness.

A December 1990 study by the Assembly of First Nations (AFN) Chiefs Committee on Claims recommended fundamental reforms to the claims policy, including the establishment of a joint AFN-DIAND (Department of Indian Affairs) working group to develop an independent claims process. Prime Minister Brian Mulroney announced further measures in April 1991 which included a joint working group to review the specific claims policy and, as an interim measure, creation of the Indian Specific Claims Commission.

Indian Specific Claims Commission (ICC)

The ICC was established under Part I of the Inquiries Act as a temporary, independent advisory body with six Commissioners mandated to review specific claims rejected by government and to issue non-binding recommendations.

In the ensuing years, the limited mandate and the lack of government action on the recommendations frustrated Commission members and Aboriginal claimants. In its Annual Report for 2000-2001, the ICC observed that the specific claims process remained “painfully slow” and “in gridlock.” Commissioners called for increased federal funding and resources to improve the situation and reiterated their long-standing view of the “pressing need” for an independent claims body to “remove the bottleneck . . . and [to advance settlement of] hundreds of existing and future First Nation land claims.”

Royal Commission on Aboriginal Peoples (RCAP)

In its 1996 Final Report, the RCAP underscored the need for structural change in the handling of Aboriginal land claims. It recommended the establishment of an independent Aboriginal Lands and Treaties Tribunal, which would replace the ICC and, in the area of specific claims, review federal funding to claimants, monitor negotiations and issue binding orders, adjudicate claims and order remedies.

Joint AFN-Government Working Groups

In July 1992, Canada and the AFN agreed to review the specific claims policy and process, and to make recommendations for reform. The two main issues were first, that Canada was in a perceived conflict of interest by judging claims against itself and second, the internal process itself was unacceptably slow and underfunded.

The recommendations recognized the need for an independent process and proposed legislation to create an Independent Claims Body. In 1996, a second Joint First Nations-Canada Task Force, of which I was also a member, began considering the structure and authority of such a body. The JTF’s 1998 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;
  • Establishment of both a Commission to facilitate negotiations, and a Tribunal to resolve disputes in cases of failed negotiations;
  • 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;
  • Definition of issues within the jurisdiction of the Commission;
  • Independent funding for First Nations research and negotiations; and
  • Joint review after five years, to include consideration of outstanding matters such as lawful obligations arising from Aboriginal rights.

Moving Toward Reconciliation

Justice at Last Initiative –Tribunal

In June of 2007, an initiative known as “Justice at Last” was announced. The initiative dedicated funding for settlements and it featured the creation of a new independent specific claims tribunal. The Specific Claims Tribunal Act received Royal Assent on 18th JUNE, 2008 and On October 16, 2008, the Act came into force.

First Nations could now refer their claims to the Tribunal for a binding decision if the claim was not accepted for negotiations or if negotiations did not result in a final settlement. Composed of superior court judges, the Tribunal provides an alternative to the courts and brings a degree finality to the process, although judicial review is available to the parties. Participation in the Tribunal process is optional. First Nations may still pursue litigation.

One of the key frustrations of First Nations was the unacceptable amount of time it took to deal with claims. Some claims had languished in the system for decades. As a result, a key feature in the legislation creating the Tribunal was the introduction of timeframes. First Nations may go to the Tribunal if Canada fails to complete its assessment of a claim within three years or if a final settlement has not been reached after three years of negotiations.

Five Year Review

The Act also provides that there must be a five year review after the coming into force. A ministerial special representative led the review process for the federal government. The results of that review have not yet been made public. The Assembly of First Nations (AFN) undertook its own review by creating an independent expert panel, on which I was a member. The panel invited submissions from across Canada and held a day of hearings in both Toronto and Vancouver during the month of March 2015. The panel issued its report, which was entitled “Specific Claims Review: Expert Based ‐ Peoples Driven” on May 15, 2015.

The panel report cited several serious problems, including underfunding and an unwillingness to negotiate and made several specific recommendations to improve the process. Its most important and overarching recommendation was as follows:

The best way forward is to re-establish an ongoing joint discussion table at which First Nations and Canada work in partnership to assess and improve the progress of the claims system and propose changes, including legislative amendments, and that such a discussion table has an accountability and oversight mechanism to ensure that changes are properly implemented. It is also important that First Nations have a representative to coordinate their input and consent in such a dialogue.

New Government

As stated earlier, Prime Minster Justin Trudeau, has stated that there is no relationship more important to him and to Canada than the one with First Nations, Inuit and Metis. He has issued public mandate letters to all 30 of his Ministers, which is an unprecedented measure for the Federal Government. In both his mandate letter to the minister of Justice and the Minister of Indigenous Affairs, he states “No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.” In addition, the mandate letter to the Minister of Indigenous Affairs states, in part,

As Minister of Indigenous and Northern Affairs, your overarching goal will be to renew the relationship between Canada and Indigenous Peoples. This renewal must be a nation-to-nation relationship, based on recognition, rights, respect, co-operation, and partnership. I expect you to re-engage in a renewed nation-to-nation process with Indigenous Peoples to make real progress on the issues most important to First Nations, the Métis Nation, and Inuit…

In particular, I expect you to work with your colleagues and through established legislative, regulatory, and Cabinet processes to deliver on your top priorities:

Undertake, with advice from the Minister of Justice, in full partnership and consultation with First Nations, Inuit, and the Métis Nation, a review of laws, policies, and operational practices to ensure that the Crown is fully executing its consultation and accommodation obligations, in accordance with its constitutional and international human rights obligations, including Aboriginal and Treaty rights.

To support the work of reconciliation (emphasis added), and continue the necessary process of truth telling and healing, work with provinces and territories, and with First Nations, the Métis Nation, and Inuit, to implement recommendations of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

After twenty years of complex and intense negotiations, the UNDRIP was adopted by the United Nations General Assembly on September 13, 2007 and was endorsed by Canada on November 12, 2010. The UNDRIP is a declaration of the fundamental rights of Indigenous peoples around the world. It establishes the principles of partnership and mutual respect that guide the relationship between states and Indigenous peoples. In addition, it provides ways to measure and assess the manner by which states are respecting and implementing the rights of Indigenous peoples. There are several provisions of the UNDRIP that apply to lands and resources. They are as follows:

Article 8

  1. States shall provide effective mechanisms for prevention of, and redress for:

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

Article 10

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 26

  1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

Article 28

  1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
  2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 37

  1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honor and respect such treaties, agreements and other constructive arrangements.

The UNDRIP is a clear indication that international law has evolved to conclude that indigenous peoples have the right to maintain and develop their particular societies within the majority society.2 Implementation of the declaration has been an issue, however, as mentioned above, Prime Minister Trudeau’s mandate letter to the Minister of Indigenous Affairs instructs her to support the work of reconciliation starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

Conclusion

The risks associated with failing to advance toward reconciliation between Canada’s First Nations and the Crown are considerable, to say the least. We have numerous examples of social unrest resulting, in part, from failing to address legitimate First Nation grievances. An ongoing and escalating sense of injustice could result in the escalation of undesirable actions. On the other hand, reconciliation would help to restore a sense of justice and alleviate feelings of anger and hatred. It appears to be the strongest way to assure lasting peace and stability and improve our relationship for a common future.

Given this history and the recent statements by Canada’s Prime Minister and his officials and given the new federal budget allocations in favor of First Nations, there appears to be a new atmosphere of expectation and hope, and in the world of specific claims, there is a renewed hope that these claims will be resolved in a more equitable and efficient manner. This new optimism is reflected by the recent statements by AFN National Chief Bellegarde and others in First Nation communities.

I can tell you that in my practice, we have experienced this new optimism in several of my negotiations. There is a flexibility and optimism among all parties and that is most welcomed by my clients. Given these recent developments, my sense is that we will begin to see claims resolution, and in turn reconciliation, progress at a more rapid rate.

Finally, just as international events are changing rapidly, almost on a daily basis, so is the state of resolving specific claims in Canada and as a result, the goal of reconciliation seems to be a little closer.