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AFN issues update on Specific Claims process and requirements for change

March 14, 2007 - 9:01am | by Anonymous

Assembly of First Nations Bulletin - Specific Claims

March 2007 Communiqué from National Chief Phil Fontaine

The Assembly of First Nations issues regular updates on the National Chief’s activities and work underway at the national office. More information can be found on the AFN’s website at www.afn.ca.

Specific Claims

There is currently a backlog of approximately 1062 unresolved claims within the federal specific claims process. Estimates of the total value of these unresolved claims range between $2.6 and $6 billion. Although First Nations have been working with the federal government for the past eight years to find solutions to the current backlog, to date, these efforts have not met with success. These efforts began in 1998 with the Joint First Nations – Canada Task Force on Specific Claims Policy Reform (the “Task Force”). The report of the Task Force, which was issued in 1998, proposed a detailed and technically sound model Bill. The federal government did not implement the Task Force recommendations.

However, the Government of Canada did unilaterally draft and pass Bill C-6, also known as the Specific Claims Resolution Act (SCRA), without the approval or support of First Nations. Although the SCRA received Royal Assent on November 7, 2003, it has not yet been proclaimed into force. The Chiefs-in-Assembly, through official resolutions, have made it clear that they do not accept the SCRA in its current form, and have called for it to be amended or withdrawn.

In 2006, the Standing Senate Committee on Aboriginal Peoples was charged with the responsibility to examine the nature and status of the Government of Canada’s specific claims policy. In its deliberations, the Senate Committee heard from a range of groups and individuals including the Minister of Indian Affairs, the Department of Justice, lawyers engaged in private practice, and various First Nations leaders and organizations, including the Assembly of First Nations (AFN). Minister Prentice is on record at these hearings declaring that, due to its unacceptability to First Nations, the SCRA must be reformed, rewritten or discarded altogether.

The AFN made submissions to the Senate Committee on November 8, 2006. In our submissions the AFN continued to press for the establishment of an independent claims resolution body, increased funding for claims resolution and First Nations participation in the process, and for specific claims to be characterized as contingent liabilities.

Report of the Standing Senate Committee on Aboriginal Peoples

In December 2006, the Senate Committee released its final report on the federal specific claims process, entitled “Negotiation or Confrontation: It’s Canada’s Choice.” We are pleased to report that the Senate Committee has, for the most part, endorsed all of the recommendations made by the AFN.

Summary of Recommendations
The Committee made a number of recommendations to address flaws with the existing claims resolution process and to reduce the backlog, including:

1. Establishment of a New Independent Claims Resolution Body

The Committee endorsed the establishment of a new independent claims resolution body. In particular, the Committee recommended:

  • 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.
  • That the new body be established in full partnership with First Nations.
  • That the joint process for establishing the new body be sufficiently resourced to enable the body to be operational within two years of the next budget date.
  • That the new body be fully capable of reaching settlement agreements on claims within five years of their submission to the independent body.

In his submissions to the Committee, the Minister also endorsed the establishment of a new independent body. Thus, there is considerable room for optimism that the federal government may be willing to establish a new independent body and to allocate resources for this purpose.

2. Specific Claims Resolution Act

The Committee recommended that the SCRA be repealed. First Nations clearly favour the options and legislative framework for reforming the specific claims process that is set out in the Joint Task Force Report. However, a repeal of the SCRA would require First Nations and the federal government to start from scratch in developing legislation to establish a new independent claims resolution body. Thus, while First Nations prefer the approach set out in the Joint Task Force Report, it may also be possible to address First Nations interests and concerns with a modest package of amendments to the SCRA. Further debate on the advantages and disadvantages of repealing the SCRA is required.

3. Funding for Indian and Northern Affairs and the Department of Justice

The Committee made the following recommendations regarding the Department of Indian Affairs and Northern Development (DIAND) and the Department of Justice (DOJ):

  • That Canada increase the financial/human resources for claims resolution at DOJ and DIAND to improve the existing process and move a significant portion of the unresolved claims forward before the new body is in operation.
  • That Canada ensure 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.

4. Funding for First Nations to Research and Negotiate Claims

The Committee recommended 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.

5. Establishment of a Specific Claims Fund

The Committee recommended that the Government of Canada establish a dedicated fund for the payment of Specific Claims settlements. The Committee further recommended that these funds:

  • not be allocated to other spending priorities;
  • 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; and
  • be for an amount no less than $250 million per year.

In our submission to the Senate Committee, the AFN recommended that the backlog be reduced in 3 to 5 years and that $1.5 billion be allocated to jumpstart settlements. An estimate of the contingent liability in 2005 dollars places the value of unresolved claims at $6 billion. At $250 million per year, it will take 24 years to resolve the current backlog. However, at $500-$750 million per year, the backlog could be reduced in 3 to 5 years.

6. Contingent Liability

The Committee recommended that Specific Claims be identified as contingent liabilities.

7. Access to Information

The Committee recommended that the Government of Canada ensure that First Nations have equal access to government records necessary for documenting their specific claims.

8. New Guiding Principles

The Committee recommended 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, including:

  • Fairness: full disclosure of arguments, legal opinions, and other negotiations; full access to records and information; no penalizing effect on compensation levels due to other First Nations’ settlements.
  • Inclusion: inclusion of First Nations leaders in reforming the Specific Claims process; cooperation with First Nations leaders in designing the structure and operations of a new independent body; involvement of other stakeholders such as provincial and territorial governments to arrive at mutually acceptable settlements earlier.
  • Recognition of Regional Differences: processes appropriately adapted to regional differences including those accommodating the fact that the greatest number of outstanding Specific Claims are from BC; inclusion of oral history relevant to understanding First Nations’ experience.
  • Dialogue: open and transparent communications to eliminate the “us versus them” atmosphere; truth and the exercise of good will to resolve claims cooperatively and more quickly.

Next Steps
In a letter to the Minister dated March 7, 2007, the National Chief urged the federal government to endorse the Senate Committee’s recommendation to establish a new independent claims resolution body in partnership with First Nations and to establish a Specific Claims Fund for settlement purposes. The National Chief also urged the federal government to endorse the Committee’s recommendations to allocate sufficient resources to the specific claims process, both in the short-term and over the longer-term for First Nations, the DOJ, and DIAND to advance and review claims.

Despite our repeated efforts, AFN has not had the resources to organize important committee meetings on this matter. Our efforts continue and officials are meeting with the Minister’s office to confirm a process that will improve the specific claims process, resolve the outstanding backlog of specific claims and establish a new independent claims body. We will keep you posted on our progress as we all appreciate the importance of this matter. Resolution of specific claims forms part of Canada’s national debt owed to First Nations and progress on their resolution is an essential measure to advance First Nations economic and social development.

Meegwetch!

Assembly of First Nations, 473 Albert Street suite 810, Ottawa, Ontario K1R 5B4 1-866-869-6789 or by fax at 613-241-5808 www.afn.ca

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