Chiefs want no part of INAC'S proposed claims body

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Angry chiefs changed the wording of a proposed resolution regarding Indian Affairs Minister Robert Nault's version of what an independent claims body (ICB) should look like to toughen up what they saw as a weak statement by the Assembly of First Nations executive committee.

The minister, according to AFN staff, has gutted a process that could have created a truly impartial process for mediating disputes over specific land claims. Several AFN technicians expressed outrage at comments made in last month's Windspeaker news publication by the Indian Affairs minister. They feel he is personally responsible for the continued delays in addressing a 453-claim backlog with an estimated worth of $682 million (federal government numbers) because the minister has proposed a $5 million cap on claims that can be submitted to the ICB and limited the annual expenditure to $75 million. AFN numbers for the claims backlog are 461 claims at a value of $697 million. Those are claims that have already been filed. Many observers believe there are thousands more that will surface in the coming years.

Specific claims deal with errors made by the federal government in fulfilling legal obligations to First Nations.

The chiefs feel the government's $5 million cap on specific claims means large claims cannot be dealt with fairly. And they worry the government is not putting enough money into the administration of the proposed Independent Claims Commission that the Indian Affairs minister wants to create with new legislation that will be introduced to Parliament this fall.

In the original resolution, it was resolved that the chiefs would continue with a process aimed at getting the bill before the House of Commons according to the minister's schedule if the government would give a little on those points. But the chiefs passed the resolution after deciding to remove two sections. The final resolution sends the message that the minister's proposal departs too much from the work of the AFN/DIAND joint task force.

Documents obtained by this organization show that a highly technical war is being waged between the minister and the AFN.

A report of the Chiefs Claims Committee (CCC) shows that after years of negotiations aimed at producing an impartial body that would referee disputes over land claims between First Nations and the federal government - an initiative promised by the Chretien Liberals in their 1993 Red Book-the AFN believes Minister Robert Nault has stacked the deck in favor of the federal government.

In Update: Independent Claims Body, a CCC report prepared for chiefs attending the Confederacy of Nations, the chiefs are reminded that the final recommendations of the joint task force on an independent claims body were "the maximum compromise that the chiefs were prepared to sanction."

"Our original goal has always been to remove the conflict of interest in Canada being judge and jury in claims against itself, but we find the federal proposal maintains a significant portion of the conflict," the report reads.

National Chief Matthew Coon Come wrote to the minister on April 19, laying out his organizations objections to the minister's proposal. In the letter he referred to a meeting of the CCC with Bill Austin, the Indian Affairs deputy minister for claims, in Vancouver on March 26. Austin, at that meeting, presented the minister's plan. Coon Come reminded the minister the report of the Joint First Nations-Canada Task Force on Specific Claims Policy Reform "represented a reasonable and jointly developed compromise between the interests of both parties."

"I must point out to you that your proposal falls far short of that mandate," Coon Come added. "We have attempted to determine why significant deviations from the joint report have been proposed."

The national chief included a list of questions in the letter.

On May 7, the day before the Confederacy began, Nault replied with a letter of his own.

"It is my understanding that the urpose of the JTF was to brain-storm, problem-solve and provide recommendations in a report with respect to a possible model that could be used to aid in the establishment of an ICB,' he wrote.

AFN staffers say the task force report was seen by former minister Jane Stewart as the finished product. They say she was ready to go to cabinet with it before she was shuffled over to Human Resources Development.

Nault's letter reveals the government refuses to let First Nations share in the appointment of ICB commission and tribunal members. The commission would work to bring the sides together and the tribunal would serve as the final judge when claims couldn't be resolved at the commission level.

"With respect to the issue of appointments, I remain committed to ensuring (First Nations) have a meaningful role in this regard, as you know, the prerogative to make appointments rests with the Crown, as it does with other boards, commissions and tribunals," the minister wrote.

Nault's cap means the tribunal would not be able to hear cases above $5 million.

When the national chief asked the minister what would happen to claims over $5 million, the minister wrote: "Large claims require flexibility, creativity and co-operation, which only exists at the ADR (alternative dispute resolution) at the commission, not at the tribunal. If all attempts to resolve a claim through ADR are exhausted without success, the claimant has the following options: a) waiving any excess above $5 million and proceeding to the tribunal, b) bring the claim before the courts, or c) leave the claim unresolved."

The communications show the sides are far apart and headed for a showdown. The original resolution may have left the technicians with some space to work things out, but when the chiefs toughened up their stand, they raised the stakes. The minister and the national chief were preparing for a face-to-face meeting in Ottawa on May 17 and could not be reached for comment on the future of this isse.