The Honourable Chuck Strahl, Minister of Indian Affairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians today introduced the Specific Claims Tribunal Act in the House of Commons, which will create an independent tribunal made up of superior court judges to help resolve the specific claims of First Nations.
The National Chief of the Assembly of First Nations (AFN) Phil Fontaine joined Minister Strahl to celebrate the introduction of this legislation, which was developed jointly with the Assembly of First Nations.
“By setting up an independent tribunal of impartial judges, we are ensuring there is greater fairness to the way specific claims are handled, and speeding up claims resolution,” said Minister Strahl. “For 60 years, the Government of Canada has been asked by First Nations and experts to create an independent tribunal to adjudicate claims. Today our Government is taking action to get it done.”
While negotiations will continue to be the first choice to resolve claims, the proposed tribunal would have the power to make binding decisions on specific claims that have been rejected for negotiation, when negotiations fail or after three years of unsuccessful negotiations. The independent tribunal would be made up of the equivalent of six full-time sitting superior court judges.
“The AFN is very pleased with the process that was followed in the development of this legislation. It is apparent that when there is political will, we can always find ways to resolve our differences,” National Chief Fontaine noted. “Our connection to the land has never been broken and as such the settlement of longstanding claims and the resolution of historical grievances are essential to the health and well-being of our communities.”
Today, Minister Strahl and National Chief Fontaine also signed a political agreement that allows them to continue working closely on issues related to specific claims reform that fall outside the scope of the legislation. The agreement sets out shared commitments to address several matters including:
- Improving the processing of Additions-to-Reserves;
- Establishing a joint approach to address historic treaty issues; and
- Dealing with claims over $150 million, which are outside the Specific Claims Policy.
National Chief Fontaine added that there will be a full briefing on the political agreement and companion legislation to Chiefs from across Canada through regional sessions and the AFN Special Chiefs Assembly in December.
The proposed legislation and the signing of this political agreement are key steps forward in the Government of Canada’s overall efforts to improve and accelerate its process for resolving specific claims.
The introduction of this legislation delivers on a key commitment made in the Specific Claims Action Plan, which was introduced by the Prime Minister in June 2007. In addition to tabling legislation, the Government is moving forward on other measures included in the plan: improving transparency through dedicated settlement funding, speeding up processing, and improving access to mediation.
Both Minister Strahl and the National Chief extended their thanks to the Joint Canada-AFN Task Force that led the collaborative process to shape the legislation: “We would like to commend all those involved in the development of this legislation for their hard work and perseverance that led to the introduction of this bill and the signing of this political agreement today.”
The Proposed Specific Claims Tribunal Act
The Minister of Indian Affairs and Northern Development recently introduced the proposed Specific Claims Tribunal Act. The legislation would create an independent tribunal to bring greater fairness to the way specific claims are handled in Canada while also accelerating the resolution of these claims. The tribunal proposed through this legislation is a key part of Canada’s decisive new approach to improve and speed up the resolution of specific claims across the country, which is outlined in an action plan called Specific Claims: Justice At Last.
Main Elements of the Legislation
The proposed legislation would establish a new independent body called the Specific Claims Tribunal. Although negotiations will always be the first choice, the tribunal would be able to make binding decisions where claims are rejected for negotiations or when negotiations fail. The creation of an independent tribunal was one of the main recommendations in the 2006 report of the Standing Senate Committee on Aboriginal Peoples on specific claims.
Under the legislation, there are three scenarios in which a First Nation could file a claim with the tribunal:
- when a claim has been rejected by Canada, including a scenario in which Canada fails to meet the three-year time limits for assessing claims;
- at any stage in the negotiation process if all parties agree; or,
- after three years of unsuccessful negotiations.
In all instances, this process will bring greater fairness to the process while accelerating the settlement of outstanding claims. In the first scenario, the tribunal would look strictly at questions of fact and law to determine whether Canada has an outstanding lawful obligation under the Act. Where a claim is found to be valid, the tribunal would apply a rigorous process to establish how much monetary compensation is owed to the First Nation.
Decisions of the tribunal would not address claims valued at over $150 million, punitive damages, cultural and spiritual losses, or non-financial compensation. Participation by a province as a party before the tribunal is wholly voluntary. However, if a province chooses to participate as a party in a particular proceeding, it must certify that it will be bound by the tribunal decision.
As noted above, the proposed legislation includes provisions that would complement the work of the tribunal by enforcing some time limits to improve Canada’s internal processes. This would mark the first time that such time limits would be put in place and would help to significantly reduce the existing backlog in a timely fashion.
The independent tribunal would be made up of the equivalent of six full-time sitting superior court judges. Members of the tribunal will be selected and appointed in accordance with the current process for judicial appointments to courts and tribunals. The tribunal will be supported by a registry office that will oversee its administrative affairs.
Accountability & Reporting
Once operational, the tribunal would issue annual reports to keep the government and all Canadians up to date on its activities. It would be accountable to Parliament for its expenditures as well as its operations. A review of its work would be initiated no later than five years from the date the legislation comes into force. This review process would enable Canada and First Nations to assess the tribunal’s effectiveness to ensure that it has met the expectations of all concerned.
Specific Claims: Justice At Last
The tribunal proposed through this legislation is a key part of Canada’s decisive new approach to improve and speed up the resolution of specific claims across the country, which is outlined in an action plan called Specific Claims: Justice At Last. This approach responds to concerns that First Nations and others have raised about the process; it also builds on the lessons learned from years of study and past consultations. Other elements of this plan include greater transparency through dedicated settlement funding, faster processing and better access to mediation.
Over the summer of 2007, discussions on related implementation matters took place between federal officials and First Nation leaders. These talks were led by a Joint Canada--Assembly of First Nations Task Force, which was announced on July 25, 2007. The legislation to create the tribunal was developed through this collaborative process.
The Joint Task Force has also been working on a plan to ensure a smooth and orderly transition to the new system outlined in the overall action plan. The legislative change put forward in the proposed Act will lead the way for implementation of the other key elements of Justice At Last which do not require legislation.
- specific claims deal with the past grievances of First Nations. These grievances relate to Canada’s obligations under historic treaties or the way it managed First Nation funds or other assets, including reserve land.
- Canada completes a thorough assessment of the facts of each claim to determine whether it owes a lawful obligation to a First Nation. To honour its obligations, Canada negotiates a settlement with the First Nation and (where applicable) the province or territory.
- The Government of Canada prefers to resolve claims by negotiating settlements with First Nations. In contrast to litigation, negotiated settlements are jointly developed by the parties working together to ensure fairness for all.
- The interests of third parties are taken into account during the negotiations. Private property is not on the table, nor are private property owners asked to sell their land unwillingly. If land changes hands, this can only happen on a willing-seller/willing buyer basis.
- Since 1973, about 284 specific claims have been resolved through negotiated settlements. Canada’s contribution to these settlements has ranged in value from $15,000 to $125 million, with an average settlement value of $6.5 million. At present, 138 specific claims are under negotiation.
History of Calls For and Efforts to Create an Independent Tribunal on Specific Claims
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.
With the Least Possible Delay
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.”
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.
Proposed Indian Claims Act
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.
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.
A New way to deal with past grievances: the Specific Claims Policy
In 1973, 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 determine whether it owes a lawful obligation to a First Nation and negotiation of a fair and just settlement to honour its obligations.
Improvements to the specific claims policy and process have been made over the years. The Specific Claims Policy remains in effect today.
Re-Igniting the Debate
In 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.”
In 1983, the “Penner Report” called for a quasi-judicial process for managing failed negotiations and the neutral facilitation of negotiated settlements.
In March of 1990, a 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.
The Indian Specific Claims Commission
In January of 1991, 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. The Commission remains in existence today, but continues to have only ‘non-binding’ recommendatory powers.
Renewed Calls for A Permanent Claims Body
In 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.
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.”
A decade of failed attempts: towards Bill C-6
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.
In 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. The work of this Joint Task Force informed the development of Bill C-6, the Specific Claims Resolution Act, which received Royal Assent in November of 2003. 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.
Negotiation or confrontation: It’s Canada’s Choice
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.
Justice At Last: The Specific Claims Action Plan
In June of 2007, the Government of Canada announced the development of a decisive new approach to accelerate the resolution of specific claims in order to provide justice for First Nation claimants and certainty for industry and all Canadians. Through this approach, outlined in Specific Claims: Justice At Last, Canada is proposing major reforms that will fundamentally alter the way specific claims are handled. Key elements of this plan are the creation of an independent tribunal, dedicated funding for settlement, faster processing and better access to mediation once the new tribunal is in place.
Over the summer of 2007, discussions took place between federal officials and First Nation leaders as work to implement these changes proceeded. These talks were led by a Joint Canada-Assembly of First Nations Task Force, which was announced on July 25, 2007. Discussions focussed on shaping the necessary legislation as well as other implementation matters relating to this initiative. As there have been numerous studies and extensive consultations with First Nations on these issues in the past, it was possible to conclude these discussions quickly so jointly developed legislation could be brought forward in the fall of 2007.
Specific Claims: A Statistical Snapshot
The proposed Specific Claims Tribunal Act (external link, opens a new window)