Report on the Review of the Specific Claims Tribunal Act
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Introduction
The Government of Canada is committed to building a renewed Nation-to-Nation relationship with Indigenous Peoples, one based on recognition of rights, respect, co-operation and partnership. Indeed, the Prime Minister has made this my overarching goal as Minister of Indigenous and Northern Affairs.
Central to achieving this objective is supporting the work of reconciliation. A key aspect of reconciliation is the resolution of historical grievances. The fulfilment of treaty and other obligations to First Nations is necessary to repair relations between First Nations and the Government of Canada.
Specific claims are claims made by First Nations against the Government of Canada which relate to the administration of land or other First Nation assets and to the fulfilment of pre-1975 treaties.
Since 1973, the Government of Canada has made available to First Nations, on a voluntary basis, an alternative dispute resolution process in which outstanding lawful obligations of the Government of Canada can be resolved through negotiated settlement agreements rather than litigation. Negotiated settlement agreements promote justice, certainty and reconciliation between First Nations and the Crown. Negotiated settlement agreements also support the development and self-sufficiency of First Nations.
In December 2006, the Senate Standing Committee on Aboriginal Peoples concluded its special study of the specific claims process. The Committee's final report, entitled Negotiation or Confrontation: It's Canada's Choice, identified a number of long-standing deficiencies with the specific claims process. In particular, the Committee found that confidence in the process was significantly undermined by the perceived conflict of interest of the Government of Canada in both assessing the merits of claims and deciding on compensation. The Committee recommended the creation of an independent body with the mandate and power to resolve specific claims.
In 2007, in response to the Committee's report, a fundamental reform of the specific claims process was undertaken to address process deficiencies and promote the Government of Canada's continued commitment to achieving the fair and timely resolution of specific claims through negotiated settlement agreements. The centrepiece of the initiative was the enactment of the Specific Claims Tribunal Act (the Act), which was jointly developed with the Assembly of First Nations. The Act established the Specific Claims Tribunal, an independent adjudicative body with the authority to make binding decisions as to the validity of specific claims and to award monetary compensation to a maximum value of $150 million per claim.
The Act came into force on October 16, 2008. The Specific Claims Tribunal became fully operational in June 2011, when it published its Rules of Practice and Procedure. The first claim was also submitted to the Tribunal in that month. The Tribunal rendered its first decision in June 2012. To date, the Tribunal has rendered 15 decisions regarding the validity of claims, and no final decisions awarding compensation.
Review of the Specific Claims Tribunal Act
In accordance with section 41 of the Act, in October of 2014, a review of the mandate and structure of the Specific Claims Tribunal, of its efficiency and effectiveness of operation, and of other matters related to the Act was undertaken.
Also in accordance with the Act, First Nations were given the opportunity to make representations. The Assembly of First Nations participated in the review in accordance with the terms of a Political Agreement that was concluded between the Assembly of First Nations and Canada in 2007. This Agreement was established in recognition of the fact that not all matters related to the resolution of specific claims could be addressed in the Act and committed both parties to continue to work together to improve the specific claims process. It was also agreed that the Assembly of First Nations would participate in the review of the Act.
In November 2014, Mr. Benoît Pelletier was engaged as the Minister's Special Representative to oversee and facilitate the review required by the Act. Letters and e-mails were sent to the chiefs of First Nations with claims before the Tribunal and other parties, advising them of the approach being taken to the review, informing them of material that was available on the departmental webpage and providing contact information should they wish to make written submissions or arrange in-person meetings with Mr. Pelletier.
Between mid-February and mid-May 2015, Mr. Pelletier met with First Nations from across the country, the Assembly of First Nations, and other interested parties, including the Chairperson of the Specific Claims Tribunal, to gather comments, suggestions and proposals with respect to the Act, the Specific Claims Tribunal and the specific claims process. Mr. Pelletier's findings and recommendations are set out in his final report entitled Re-Engaging: Five-Year Review of the Act, which is now publicly available.
A parallel examination of the Act was undertaken by the Assembly of First Nations. The Assembly of First Nations established a panel to hold hearings and receive contributions for the development of recommendations to improve the specific claims process. The Assembly of First Nations' panel convened two hearings in March 2015: one in Toronto and one in Vancouver. It heard a total of 23 oral presentations and received seven written submissions. The observations, conclusions and recommendations of the Assembly of First Nations' panel were published by the Assembly of First Nations in May 2015 in a report entitled Specific Claims Review: Expert Based – Peoples Driven and were considered by the Minister's Special Representative during the course of his review.
What Was Heard
The Act requires that the Minister of Indigenous and Northern Affairs submit to each House of Parliament a report concerning the findings and conclusions of the review of the Act. On behalf of the Government of Canada, I am submitting this report to Parliament in fulfilment of that requirement. It reflects what was heard during the Minister's Special Representative's engagement process. It also reflects the insights and recommendations set out by the Assembly of First Nations' panel in Specific Claims Review: Expert Based – Peoples Driven.
With respect to the Act and the operation of the Specific Claims Tribunal, it is clear that First Nations are, generally, satisfied with the Tribunal. First Nations are particularly appreciative of the cultural sensitivity of proceedings. However, the very formal and onerous process for advancing claims before the Tribunal has increased claimants' burdens in terms of time and expense. It is reassuring that Tribunal members are encouraging parties to employ more creativity in the advancement of claims and it is hoped that the Tribunal will find flexibility within its Rules of Practice and Procedure to allow for simplified and more expedited procedures.
The overwhelming focus of representations made by First Nations during the Minister's Special Representative's engagement process as well as during the Assembly of First Nations' panel reflected concerns about the specific claims process rather than the Act or the Tribunal. First Nations and others are concerned that the Government of Canada's approach to the resolution of specific claims has become arbitrary and is not supportive of reconciliation, an objective clearly identified in the preamble of the Act. In particular, concerns were raised with respect to: the administration of research and negotiation funding; the adequacy of funding to support First Nations' participation in all stages of the specific claims process, including at the Specific Claims Tribunal; practices with respect to the assessment and acceptance of claims for negotiation; the availability of mediation; and the Government of Canada's failure to engage in meaningful negotiation.
First Nations believe the promise of partnership and co-operation that helped create the Specific Claims Tribunal has been lost and that the only constructive way forward is to begin anew a process of collaborative discussion through which an approach to the resolution of specific claims can be developed in partnership and with mutual respect.
Moving Forward
I understand from the Minister's Special Representative's report that First Nations are, in general, satisfied with the Specific Claims Tribunal. It is also clear to me that the best way forward is to establish an ongoing joint discussion on how to improve the manner in which specific claims are resolved, as stated by the Assembly of First Nations' panel.
The Government of Canada believes that no changes should be made to the Act at this time. Indeed, changes regarding the Tribunal without the appropriate level of discussion with key interested parties would be ill-advised.
Rather, it is time for the Government of Canada to re-engage in a constructive dialogue regarding the specific claims process. While many thoughtful and creative measures were recommended to address the concerns identified, it is my belief that it would be premature to adopt any of those recommendations at this time. I have heard, clearly, that additional discussion and joint assessment is necessary.
Early in the summer, discussions were started between Government of Canada officials and the Assembly of First Nations. Four key issues requiring priority consideration were identified: 1) funding to support the research and development of claims; 2) the process to resolve claims with a value greater than $150 million; 3) the use of mediation in negotiation processes; and 4) clarity with respect to the public reporting of specific claims-related activities. Over the coming months, discussions will continue to finalize a joint work plan to examine these issues and to identify fair and practical measures to improve the operation of the specific claims process.
While the Assembly of First Nations will have a central role in the work ahead, the contributions of First Nations, other First Nation organizations, and other interested parties will also be sought.
The Prime Minister promised Canadians a government that will bring real change. Renewing the dialogue between the Government of Canada and First Nations about specific claims is the first step to ensuring their resolution in a fair, expeditious, and respectful manner. We commit to continuing the dialogue that has begun, and will re-establish a co-operative and respectful partnership for the resolution of specific claims.