From APTN.ca

Aboriginal Affairs 'paternalistic, self-serving' in its use of 'take-it-or-leave-it' offers

23. JAN, 2014 

APTN National News
The Specific Claims Tribunal blasted a branch of Aboriginal Affairs for being "paternalistic, self-serving, arbitrary and disrespectful" in a recent ruling impacting the department's "take-it-or-leave-it" gambit to settle historical claims with First Nations.

The Jan. 17 ruling by Judge Patrick Smith eviscerated Aboriginal Affairs' specific claims branch for its handling of a claim filed by the Aundeck Omni Kaning (AOK) First Nation, which is on Manitoulin Island, and its attempt to block it from accessing the tribunal.

Smith said the ruling could have "significant relevance to many other claims" where Canada has put deadlines on settlements for "small value claims."

Under the tribunal's rules, a band can submit a claim if the department hasn't made a decision on whether to negotiate a claim three years from the day it was originally filed with Ottawa.

A band can also submit a claim before the three years pass if the department indicates it won't negotiate a settlement.

The department has issued numerous take-it-or-leave it settlements to bands across the country seeking compensation for historical grievances around the mismanagement of trust funds and the loss of lands.

AOK was seeking access to the tribunal arguing the department was not willing to negotiate a settlement claim which centered on the 1914 payment of $559.63 from the band's trust fund. The money went to the children of a former band member named George Abotossaway, also known as George Thompson, who gave up his status under a process called enfranchisement in 1909.

The band, which was known as the Ojibways of Sucker Cree at the time, obtained confirmation from Aboriginal Affairs deputy minister Patrick Borbey on Nov. 12, 2011, that the payment of the money "was not authorized by law, and thus Canada breached its fiduciary duty." The money was paid to Abotossaway's children after he gave up his status.

A few months later, Brendan Blom, the assistant negotiator in the specific claims branch, sent a letter dated March 28, 2012, to Chief Patsy Corbier informing the band that the department was offering a take-it-or-leave it offer that was based on a predetermined formula.

The formula calculated the owed amount by applying the Consumer Price Index to 80 per cent of the total and adding compound interest at Aboriginal Affairs trust fund rates to 20 per cent of the amount. The actual dollar figure is redacted from the documents filed with the tribunal.

Blom's letter also gave the band 90 days to accept or the department would close the file.

The department argued that its take-it-or-leave-it settlement letter to AOK constituted a form of open negotiations putting the claim outside the tribunal's jurisdiction.  The department argued that the Aboriginal Affairs Minister had "considerable discretion in deciding when to accept, negotiate or not negotiate a claim."

Smith ruled that the department's position outlined in the settlement letter effectively gave notice to the First Nation that the claim wouldn't be negotiated.

"In deciding to employ a small value claim process in making an offer to settle without discussion, in refusing to discuss or explain the offer, and in imposing a 90 day deadline and then closing the file, Canada, and specifically the minister, effectively decided and notified the claimant that it would not negotiate the claim," said Smith in his ruling.

Smith said the department's actions fell short of upholding the "honour" of the Crown.

"This position, along with the process employed by the specific claims branch for small value claims in relation to this claim, and perhaps many others, is, frankly, paternalistic, self-serving, arbitrary and disrespectful of First Nations," said Smith. "Such position affords no room for the principles of reconciliation, accommodation and consultation that the Supreme Court, in many decisions, has described as being the foundation of Canada's relationship with First Nations."

Aboriginal Affairs Minister Bernard Valcourt's office said that the department is reviewing the tribunal's decision before deciding what to do next. The tribunal's decision could be put to the Federal Court for a judicial review.

Magnetawan First Nation Chief William Diabo said his community, which sits along Ontario's Hwy 69 near Georgian Bay, received a take-it-or-leave it offer from the department within the past month. Diabo said his claim centres on loss of reserve land through the construction of highways and a redrawing of the reserve's boundaries.

"That may give us another chance to take a kick at the can," said Diabo.