Specific claims resolution complaints continue

An expert panel established by the Assembly of First Nations to gather information on the specific claims process is underscoring the findings of a report authored by claims research directors from across Canada.

In Bad Faith: Justice At Last and Canada’s Failure to Resolve Specific Claims challenges Canada for “incorrect conclusions and misleading statements” that say the Specific Claims Action Plan: Justice At Last is successful.

Justice At Last has been the Aboriginal Affairs department’s official policy for resolving specific claims since 2007. The federal government plans to discontinue program funding in the 2016-2017 fiscal year.

“AANDC rationalizes this decision in light of false statements that Justice At Last has met its objectives,” states In Bad Faith’s authors.

The report refutes all five of the points highlighted by AANDC about the program’s success: that fewer specific claims are entering the system; that the backlog of specific claims has been eliminated; that specific claims accepted by the minister are being negotiated; that access to mediation has been successfully established for First Nations; and that the Specific Claims Tribunal is “providing a final, just, and timely mechanism for resolving claims.”

The implementation of Justice At Last is not the legislation the Federation of Saskatchewan Indian Nations was active in creating and supported, said Jayme Benson, specific claims director with the FSIN. He was speaking to an expert panel March 9.

“Today there’s a process on paper that looks a lot better, but seems to be, in practise, pretty dysfunctional,” Benson said. He noted that Saskatchewan was probably one of the more successful areas in settling claims with more than $1 billion in specific claim settlements and the transfer of more than one million acres of land to reserve.

But he said “The whole approach of Canada is adversarial. Fight everything tooth and nail at every stage of the process. Instead of trying to resolve claims through the negotiations, push them to the tribunalÖIt seems they’re more willing to lose at the tribunal than they are to make a decision earlier on to negotiate.”

Benson was one of about a dozen presenters in the first of two hearings hosted by the AFN’s expert panel, which consists of chair Delia Opekokew and Bryan Schwartz and Robert Winogron who are both former legal counsel for the AFN/Canada Joint Task Force that created the†Specific Claims Tribunal Act.

The panel was struck by the AFN to gather information about the current specific claims process, and get experiences and insights as well as ideas for change from those who have participated in the process.

“The biggest problems aren’t necessarily with the act itself, but in terms of how the act is being implemented and issues within the process itself,” said Benson. “It doesn’t seem to be so much a problem of what we set up, as the fact that the department has then taken it and interpreted it a certain way.”

In Bad Faith outlines areas of concern that deal with the implementation of the policy. First, the report says the number of specific claims entering the system is increasing. This is because of the Specific Claims Branch’s internal policy of accepting for negotiation only minor portions of claim submissions and demanding legal releases of liability on the bulk of substantive allegations.

This in turn is forcing First Nations to file separate, smaller claims. The backlog of claims appears to be diminishing only because they have been rejected and now have moved on to the Specific Claims Tribunal.

In practice, AANDC unilaterally and without consultation imposes a preliminary value upon each claim, then the Specific Claims Branch identifies the majority of these claims as “small value” claims and denies First Nations the opportunity to negotiate them.

Kathleen Lickers, barrister and solicitor with Six Nations, agreed with Benson.

“It was drafted on the promise from Canada that negotiation was their preferred path, (but) that’s not the Canada that we’ve seen,” Lickers told the panel.

She also called into question the independence of the process noting that the mediation service was administered by government staff within government offices.

“They’re the judge, the defendant, the banker and the time keeper, and is that still necessary?” she asked.

In Bad Faith notes that “First Nations have publicly criticized this mediation unit for its appearance of conflict of interest. First Nations’ requests for mediation services are routinely denied by Specific Claims Branch officials.

“Further, with the prevalence of ‘take-it-or-leave it’ offers, there is much less opportunity for mediation.”

Luke Hunter, land, rights, and treaty research director with Nishnawbe Aski Nation, told the panel that the federal agenda was to “choke the next generation with claims” and wind down the process.

He also noted that NAN members have not taken their specific claims to the tribunal, despite having their claims rejected by Canada, because the tribunal is only able to offer financial compensation and cannot make decisions on land.

“If there’s no land, how can First Nations be sustainable in the long term?” Hunter asked. “This underscores the need to revamp the way Canada is handling the specific claims process… The Specific Claims Tribunal is very much in need of a thorough, independent review.”

An open letter addressed to Prime Minister Stephen Harper and signed by leaders of First Nations, tribal councils, provincial and territorial organizations, NDP MPs, claims research directors and units, and like-minded organizations, concludes, “Specific claims will not be resolved if Canada continues to engage in the practices detailed in the enclosed report, nor will they disappear without honorable government leadership that respects the principles of justice articulated in its own policy documents. The debt burden on Canadians is mounting and the already fragile relationship between Canada and First Nations is in danger of further deterioration.

“With an upcoming federal election, we urge you to implement the recommendations outlined in our report and uphold the promises made in Justice At Last to settle specific claims through fair, honorable and timely negotiations with First Nations, and ensure that the human rights of First Nations are fully respected.”

AFN’s expert panel is scheduled to hold a second hearing in Vancouver on March 26 (after deadline). Information gathered from the two hearings will be used to make an independent recommendation on improving the specific claims process policy and legislation, said Opekokew.