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Specific Claims Expert Panel Info

on August 16, 2016

Summary of Oral and Written Contributions Recommendations Received by the Expert Panel 

Disclaimer:

The Expert Panel would like to reiterate their gratitude to all contributors for their outstanding work in this review process. The following recommendations are drawn from the oral and written contributions received by the Expert Panel, and thus the Expert Panel holds no authorship of these recommendations. Please note that for brevity purposes, and given that some recommendations overlap, this is not an exhaustive list of all recommendations received. Similarly, although the sense of frustration with the overall process is present in all contributions, there is some variety on the proposed courses of actions. 

Overarching Recommendation 

  • What we need is an attitude shift on the part of Canada. A shift from “we have to win this claim” to “we have to resolve this claim.” That attitude shift will have ripple effects. The parties will be able to focus on the real issues engaged in each claim, and hopefully won’t be side-tracked by approaches that try to obfuscate the issues or delay the hearing.

 

Claims Research and Processing 

  • Eliminate submission of claim and early review process by Specific Claims Branch:
    • A claim can be commenced in same way as a court action by filing a Declaration of Claim
    • Upon completion of document production, expert reports, and oral history (if any), the Tribunal can encourage the parties to consider settlement based on a risk assessment prepared by each of the parties – not legal opinion by one party that is viewed as if it were the equivalent of Supreme Court judgment
    • In the case of litigation, 95% of all civil actions are resolved prior to trial – only 5% are adjudicated
    • If a mediation body were established, they could offer mediation or facilitation prior to hearing by the Tribunal
    • Eliminate the Transitional Rules

 

Research/Funding

  • An independent Specific Claims funding allocation body should be established to more fairly allocate claims research contribution funding, claims negotiation loan funding and SCT funding.
  • Outstanding Business (as it then was) and now Justice at Last is a program of government.  Its funding comes upon allotment of funds based upon the defendant’s (Canada is a defendant in each and every specific claim) own estimation of the needs of the program.  This is hardly fair.  The legislation should be amended to create an arm’s length funding mechanism through the Tribunal.
  • A minimum, funding for the research and development of claims should be returned to the 2013/14 levels.  If workloads have decreased in some part of the Specific Claims Branch, money could be moved from there to fund First Nations participation in the process.
  • If the federal government is serious about outstanding historic grievances being resolved through the specific claims and Tribunal process then significant attention needs to be paid to adequate funding of both. Thus, the limited funding available for the submission and negotiation of claims should not be the source of funding for Tribunal proceedings as well, which appears to be the case. The small funding pie set aside for dealing with specific claims under the Policy should not be sliced up to fund proceedings and operations of the Tribunal as well.  Separate and adequate funding needs to be provided for both.
  • In order to ensure a fair and balanced process of claim development and submission, Canada must either ensure adequate funding is available for research and development, or adopt a more flexible approach to the negotiation of claims that recognizes that the development of claims is a limited process. Further exploration of the facts of the claim and the potential losses will required at the negotiation stage.
  • Specific Claims Branch (SCB) should have regional offices with the ability to develop regional policies.
  • There should be a collaborative research process with Canada once a claim has been accepted after preliminary review.
  • First Nations and their representatives should be aware of who has carriage of their claim at the assessment stage. In addition, there should be an opportunity for the First Nation to engage in a discussion with the officials who are assessing their claim. First Nations should be given the opportunity to clarify any facts or argument made in the submission, prior to a rejection by Canada.

 

Minimum Standards

  • Rather than using minimum standards as a means to reject a claim, Canada needs to just use common sense in how it applies the minimum standards. As the Courts have repeatedly told Canada, the objective of Crown-Aboriginal negotiations is reconciliation. A rigid and narrow approach to the ‘minimum standards’ is directly contrary to the goal of reconciliation.
  • The development and interpretation of minimum standards in the filing of a claim.  The Act requires the Minister to develop the standards but it was left for this development to occur outside of the Act.  The Act should be amended to bring oversight to the reform (if necessary) and interpretation of these standards.
  • The Tribunal should be given the mandate to exercise some supervisory or monitoring role over the determination of whether a reasonable minimum standard has been met for a claim to be filed with the Minister.  After all, these are the very claim submissions and supporting documents that might be later brought before them for a determination on the merits of a claim.

 

Claims Acceptance/Rejection

  • The SCTA should be amended to eliminate restrictions on the types of claims — Any historical breaches of the Crown’s lawful obligations to First Nations should be eligible.
  • Canada no longer discloses its historic report and legal analysis, which hampers the ability of a First Nation to assess Canada’s acceptance or rejection of a claim for negotiation. Canada must make this information available.
  • Canada should provide additional details about the basis for rejection or partial acceptance. If unwilling to do this in writing, Canada should be prepared to attend a single day meeting to explain its decision to the First Nation. The First Nation has fully disclosed its positions by virtue of the claim submission, it is only fair and reasonable that Canada be equally forthcoming in its rejection and partial acceptances.
  • Acceptance of a claim should not require relinquishing other associated claims.
  • The acceptance/partial acceptance of a claim should not be used as a means to devalue claims at the outset. Canada should not impose qualifiers on how an accepted allegation will valued. How an accepted allegation is valued is matter of negotiation between parties.
  • Any recent letters from the Minister accepting claims for negotiation have a clear focus on potential litigation with an eye on Tribunal proceedings.  Letters now come not only “without prejudice” but with clear notice that if negotiations fail the acceptance letter cannot be used before the Tribunal.  The explanation is that the letter is protected by settlement privilege.  Two of the pre-conditions for filing with the Tribunal are evidence under s.16 of the Act that the Minister has either notified the First Nation in writing that his decision is not to negotiate a claim or three years have elapsed from the time the Minister has notified the First Nation of his decision to negotiate a claim.  It should be made clear in the Act that a copy of the Minister’s letter is one of the pre-conditions for filing with the Tribunal.
  • The three year period or any revised period, particularly on complex claims, should not be the be all and end all of the Department’s consideration.  If the Minister is close to a decision on whether or not to accept a claim for negotiation, the parties should be able to agree to extend the time period before consideration of whether to proceed to the Tribunal.

 

Negotiation, Mediation and Settlement

  • First Nations require reasonable funding in order for there to be a level playing flied. Canada must reconsider its present funding models in order for First Nations to negotiate their claims properly.
  • The loan funding for negotiations should be determined based on the work plan agreed to by the First Nation and the Federal negotiator, and that there be no maximum amount but rather funding be based on the complexity of the claim and amount of work required to reach a settlement.
  • S. 16(c) and (d) [of the SCTA] should be amended to permit the First Nation recourse to the Tribunal, in the course of negotiating the claim, period, without regard to a three year lapse.  This time period was never intended to be a finish line or a trigger to terminate negotiations.  It was intended to be a bell weather.  It’s being interpreted in a punitive way by SCB – for this reason, remove any reference to time.   Its impasse during negotiation not time that should drive recourse to the Tribunal – as well, what Canada has accepted for negotiation should continue to bind the Crown – referral during the course of negotiation is not a matter of re-opening the question of liability.
  • Canada must return to a reasonable process of negotiation, where the timeframe for completion of claim is determined by the complexity of the claim and the issues that arise. A claim negotiation should be completed only when both parties are confident all issues have been addressed and both parties have had the opportunity to present their positions.
  • Canada must return to a process whereby loses caused by Canada’s breach, are jointly determined on the basis of proper evidence, expert third party advice, and an actual negotiation process.
  • If the federal government is serious about resolving specific claims through meaningful and good faith negotiations it has to give its federal negotiators flexible mandates, adequate resources to federal and First Nation negotiators to meet at the negotiation table and conditions under which both parties can engage in effective negotiations without an eye on potential litigation.
  • Negotiations should be modeled on Interest Based Negotiations – meaning that the parties should be looking to address interests, rather than positions.  To this end, in the letters to the First Nation responding to the submission, Canada should not be asking the First Nation to accept certain positions by Canada as a precondition to entering negotiations.
  • First Nations must be provided an opportunity to fully explore the losses they have suffered and to retain independent expert advice on the losses suffered. Jointly commissioned loss of use studies are integral to this process. Unilateral valuations based on thin evidence are not appropriate in the just and reasonable settlement of claims.
  • Canada must end the practice of trying to categorize claims based on a value, determined prior to actual negotiations occurring.  The ultimate settlement value of a claim should be determined through negotiations, and just because a claim may have a smaller value does not mean it is necessarily less complex.
  • Adequate resources should be made available so that Federal negotiators can meet on a regular basis with First Nations, to try to achieve negotiated settlements. This may be accomplished by reducing staff within the Specific Claims Branch, and move the savings to operations.
  • Negotiations must be culturally appropriate and take into consideration the need for dialogue and victim impact reconciliation.
  • Aboriginal Affairs and Northern Development Canada (AANDC) have set up a roster of mediators or mediation services but this process has not been utilized.  When some First Nations actually approached the Department to access this service, there was surprise and uncertainty as to how, if at all, to proceed.  Any mediation services, as a valuable claims resolution tool, should be made available but independent from the Department and independently funded. 
  • Mediators should be housed in an independent body or on an arm’s length roster. Access to mediation must include a positive obligation to engage in that process when requested. Perhaps mediation should be mandatory after a certain period of time has passed. Allowing Canada to unilaterally control when mediation is appropriate undermines neutrality of the process, and the value a mediator may bring. 
  • In order to ensure there is no perception of bias, Canada re-engage with the AFN and First Nations’ organizations to develop a centre for mediation that is housed outside of the Government of Canada. 
  • Canada should be exploring ways to streamline their internal processes, from the time an informal settlement has been reached at the negotiation table, to the time the Federal negotiator is given the mandate to make a formal written offer.
  • Preparation of the Settlement Agreement must be a joint process. The Settlement Agreement must represent the agreement between the parties and is not well suited to a “one size fits all” approach. A negotiated agreement must by its very nature be the result of a give and take process. Thus, it should not be open to either party to impose terms of settlement on the other. Settlement Agreements must reflect the terms agreed by the parties.
  • First Nations must have the right to invoke SCT intervention without Canada’s consent.

 

Tribunal

Mandate, Function and Act

  • Adequate resources should be made available for First Nations and the Tribunal throughout the process.
  • Claims must well researched and documented in order to reach the Tribunal. Because research and tribunal funding come from the same pot, funding for First Nations to bring their claims to the Tribunal will have a direct, adverse effect on research funding. In fact, First Nations’ Tribunal funding will be at the expense of research and development funding in a cycle of diminishing returns: the more claims that the Tribunal is forced to hear because Canada will not resolve claims through negotiations, the less money there is to conduct the research necessary to advance claims to the Tribunal. Tus, the Tribunal’s and claim research funding MUST come from different adequately funded pots. It is fundamentally unjust to compromise funding at one end of the process “in favour” of another equally important stage.
  • There should be a continued investment in the Specific Claims Tribunal.
  • Keep claims in the community.  The Tribunal should view the lands at issue in the claim, and hear from the people.  This is part of the distinctive task of adjudicating claims in a just manner, and is important not only for the Tribunal, but also for the community.
  • Ensure claims are heard in a timely way.  It’s possible to begin the evidentiary portion of the hearing within a year of filing a declaration of claim.
  • The Tribunal should not be restricted regarding damages to those claimed in the original specific claim.
  • Canada should not be defending on the basis that First Nations in the “wards of the state” era should have sued private third parties.
  • The Tribunal should not be a forum for Canada to in effect advance third party claims against absent provinces.
  • Canada should not be attempting to fix a general onus of proof burden on First Nations before the Tribunal.
  • The Tribunal should not be led to presume that a “no costs” regime is appropriate because funding is available to First Nations.
  • The no compensation for “loss of a cultural or spiritual nature” provision in s. 20(1)(e) of the Act should be addressed.
  • Don’t throw away all the work that has come before, use it, like Williams Lake did.  For example, documents that were provided to the Minister when a claim is first submitted, that were collected by the Specific Claims Branch, and that were before the Indian Specific Claims Commission should be put before the Tribunal as well.
  • The Tribunal’s jurisdiction to hear claims should line up with Canada’s long-standing specific claims policy, and should not be narrower.
  • Parties should be encouraged to keep the goal of reconciliation in mind throughout the Tribunal’s processes.  We should look for opportunities to come together, to negotiate in good faith, not take paths that pull us further and further apart.
  • The Tribunal should be empowered to develop a body of law that will help with the resolution of all claims.
  • The SCTA should have the authority to hear claims before three years have elapsed if Canada has been stalling or impeding negotiations.
  • Tribunal is intended to and must be used to inform the negotiation tables. Tribunal decisions need to be respected and implemented. They need to be binding on Canada. Canada should not be arguing that factual differences between claims mean that the legal principles articulated have no application.
  • Building on the work of the Tribunal, First Nations should be able to request that their closed or rejected files be re-viewed in light of Tribunal decisions. When asked, Canada should be compelled to engage in this second review that does not force First Nations to enter the claims review process from the beginning.
  • It should be made clear in the Act that the mandate of the Tribunal is to only hear claims rejected for negotiation or where negotiations have broken down on compensation or settlement issues.  For the Crown to bring forward, directly or indirectly, the merits of allegations previously accepted for negotiation is not only bad faith but increases the time and costs of the Tribunal process.  The Tribunal should have the mandate to review the question of whether a claim is properly before them based on whether it is rejected or not.
  • The fact that the Tribunal is to rule on the breaches of legal obligation and apply the compensation principles developed by the courts means that the Tribunal is applying the common law and general legal and equitable principles − that is, the same law that the Supreme Court of Canada has developed over years (Guerin, Wewaykum, Ross River, Manitoba Metis). There must be, and there is, consistency in adjudications by the Tribunal and the courts on matters dealing with the fiduciary relationship between the Crown and First Nations, and what that fiduciary duty entails.
  • The Tribunal’s decisions should serve as a precedent, not only to aid negotiations, but also to assist in resolving other claims before the Tribunal.
  • Appoint more judges to the Tribunal through a joint appointment process to ensure that the Tribunal is seen as fair and impartial by First Nations.
  • Have the Tribunal function under an independent administrative oversight committee and report to the House of Commons rather than the Minister of Aboriginal Affairs.
  • If the jurisdiction and mandate of the Tribunal is to be expanded, then no question personnel and financial resources of the Tribunal will have to be increased.  There is no point in considering the expansion of the Tribunal’s mandate if existing resources are insufficient for the Tribunal to even manage its current case load and administrative functions.
  • Proceedings before the Tribunal could be improved, by permitting a Tribunal member through Case Management, prior to any Hearing, to consider alternative ways of resolving the claim without further time and costs.  This should be a required step in the process once, perhaps, the Common Book of Documents, Agreed Statement of Facts and Agreed Statement of Issues have been filed, preliminary motions have been completed and any Elders’ testimony has been disclosed, but before Arguments are presented and a Hearing is held.  By this time the Case Management Judge would have a good handle on the evidence and issues at stake. All of this is subject to the willingness of the parties, particularly the Crown, to consider alternative ways of resolving the claim before a Hearing.
  • There appears to be no need to amend the legislation to bifurcate the two steps since the parties may agree it makes sense to deal with both the validation and compensation phases of the Hearing at the same time.
  • To set a standard methodology for determining historic losses would compromise the flexibility currently available to the Tribunal in determining those losses and would fail to take into account the variable historical circumstances that gave rise to these losses.  Furthermore, determining the appropriate standard methodology to use in calculating historic losses would not likely be mutually agreed upon.
  • Specific claims cannot be decided from a desk in Ottawa. That was one of the fundamental wrongs of the prior processes. So the idea that we see floated in Canada’s engagement paper for this 5-year review of conducting “paper hearings” is, in our view, the wrong way to go for the vast majority of claims. Furthermore, any proposal to create of “expedited processes” is met with suspicion since these processes have almost always resulted in lack of justice since Justice at Last has been implemented.
  • Ultimately, the Tribunal must have flexibility so that it can hear from each distinct First Nation, advancing its own distinct specific claim, in a manner that respects their uniqueness and their choices.
  • The Tribunal should be able to award non-pecuniary damages for breaches of solemn and sacred Treaty promises where the honour of the Crown is at stake.
  • The use of document disclosure, or expert reports, or last minute theories as tactic to delay having claims heard, must be prohibited.
  • The SCTA should be amended to explicitly allow the introduction of new evidence not included in the original claim submission that does not substantially change the nature of the claim.
  • The Tribunal should have the authority to reduce or eliminate outstanding negotiation loans incurred as a result of Federal foot-dragging, policy flip-flops or bad faith during negotiations.
  • The SCTA should be amended to allow for a process to engage with provinces and municipalities in the settlement of land claims.
  • The Tribunal should have responsibility over claims submission, processing, funding allocation and negotiation procedures as a neutral third party.
  • We don’t want to see the Tribunal’s processes come more and more under the purview of the federal government. On review of the Minister’s Engagement paper, we are deeply concerned that Canada is contemplating increasing the administrative duties of the Tribunal (eg SCT administering Research Funding, claims being filed with Tribunal directly) while simultaneously undermining its independence and authority by having those administrative duties managed by the new Umbrella Tribunal Support Service instead of an independent Tribunal registry. Thus, we urge that there be commitments to ensure the Tribunal’s institutional independence and restore an independent registry.

 

Judicial Review

  • The First Nation should not bear the financial burden of having to address a judicial review application before the Federal Court of Appeal brought by the Crown. The Crown has the financial resources for such an application but the First Nation is faced with finding its own source of funding for proceedings over which it has no choice.
  • Judicial review applications brought by a First Nation arising from factual or legal errors in a Tribunal decision should also receive funding.  There is no reason why a First Nation should not have the financial resources that the Crown does to pursue an application.

 

General Recommendations and Other Issues 

  • Canada’s Laws and Policies in regard to specific claims have to be brought in line with international human and indigenous rights standards.
  • Reconciliation will require a considerable demonstration of trustworthiness on the part of Canada and a considerable leap of faith on the part of First Nations. What might help to facilitate this is some sort of oversight mechanism. For example, perhaps we need a watchdog to review how the parties are meeting the goals of reconciliation both in their negotiations and their work before the Tribunal.
  • Addressing Specific Claims is not a program as it has been characterized by Canada; instead, it is about promoting access to justice and the fair and expeditious resolution of claims.
  • The resolution of Specific Claims should be supported by government as settlements provide First Nations with compensation for investment into improving the socio-economic conditions of their membership.
  • We note that the greater the claim the greater the injustice and hence the need to address mega claims in an immediate and wholesome manner.
  • Canada should re-engage with the AFN and First Nations’ organizations to develop a process to address claims over $150 million, which are currently outside the jurisdiction of the Tribunal.
  • If the tribunal and the federal government are unable to address our specific claim, the area should immediately be declared Aboriginal Title land since it was set aside for the exclusive use of our people.
  • Amend the definition of “specific claim”:
    • Should be broad terminology based on a breach or non-fulfilment of an obligation under statute, common law or equity (ie fiduciary obligation) that permits ongoing development of difficult areas of law
    • Can expressly eliminate certain classes of claims such as comprehensive claims based on the limited remedies that can be granted by the Tribunal
    • For example, just because a BC First Nation is asserting a claim for compensation based on a breach of fiduciary duty for the alienation of lands that were part of a village site doesn’t make the claim one based on “unextinguished Aboriginal rights or title” – this language was intended to distinguish specific claims from comprehensive claims which required the negotiation of modern day treaties.
  • Now that we have an independent Tribunal, there must also be an independent entity to represent the Crown.

 


 

Contributor Presentation
Kathleen Lickers, Barrister & Solicitor
Six Nations, Ontario
No presentation available
Jayme Benson, Specific Claims Director
Federation of Saskatchewan Indian Nations (FSIN)
Five Year Review Specific Claims Tribunal Act
(SCTA)
Luke Hunter, Land, Rights & Treaty Research Director
Nishnawbe Aski Nation (NAN)
Presentation to AFN Specific Claims Review
Elder Lawrence Cheezie
Smith Landing First Nation
No presentation available
Phil Monture, Land Rights Consultant
Six Nations, Ontario
  1. A Global Solution for the Six Nations of the Grand River (ppt)
  2. The Honor of the Crown is at stake in dealing with Aboriginal Peoples
Alanna Trudeau, Community Engagement Coordinator
Wikwemikong Islands
No presentation available
Russell Diabo, Policy Advisor
Algonquin Nation Secretariat
Specific Claims & The Specific Claims Tribunal Act: Five Years Later
Ron Maurice, Legal Counsel
Maurice Law
Specific Claims Policy – Five Year Review Process Notes for Presentation to Expert Panel
Jerome Slavik, Barrister & Solicitor
Ackroyd LLP
Presentation to AFN Panel on Five Year Review of Justice At Last & The Specific Claims Tribunal Act
Jamie Tromp, Research & Negotiation Associate
Havlik Metcs Limited
Five Year Review Specific Claims Tribunal Act (SCTA)
Chief Marjorie McRae
Gitanmaax Band
Presentation to Expert Panel, AFN Specific Claims Review
Chief Jim Bear
Brokenhead Ojibway Nation
Specific Claims Review Panel Presentation
Leah Pence, Legal Counsel
Williams Lake Indian Band: T’exelc
Presentation on behalf of the Williams Lake Indian Band
Grand Chief Stewart Phillip, Jody Woods & Leah Pence
Union of BC Indian Chiefs
  1. The Right to Be Heard – A Principles-Based Review of the SCTA
  2. An Open Letter to Prime Minister Stephen Harper on the Resolution of Specific Claims
Chief Judy Wilson
Neskonlith Indian Band
Specific Claims & The Specific Claims Tribunal Act: Five Year Review

A Presentation by the Neskonlith Indian Band

Members of the Secwepemc (Shuswap) Nation

Chief Ted Roque
Wahnapitae First Nation
No presentation available
Don Colborne, Barrister & Solicitor
Treaty 3
Presentation of Big Grassy First Nation (Mishkosiiniiziibing)
Hugh Braker, Chief Councilor
Tseshaht First Nation
Submission of the Tseshaht First Nation
Deb Abbott, Executive Director
Nlaka’pamux Nation Tribal Council
Negotiation of “Small Value Claims”: The NNTC Perspective
David Knoll, Barrister & Solicitor
Knoll & Co
AFN – Specific Claims Review
Jim Big Plume, Claims Researcher
Tsuu T’ina First Nation
Expert Panel Submissions Specific Claims Review
Blood Tribe The Blood Tribe’s Response & Comments on the 5-year Review of the SCTA
Conseil Tribal Mamuitun
  1. “Justice menacee” – Commentaires destines au Canada concernant l’examen quinquennal de la Loi sur le Tribunal  des revendications  particulières
  2. Loi sur le Tribunal des Revendications Lettre
Darwin Hanna, Barrister & Solicitor
Callison & Hanna
AFN Specific Claims Review: Expert Based – Peoples Driven
Doig River First Nation AFN Expert Panel on the Specific Claims Process
Chief Mary Lynn LaBillois
Eel River Bar First Nation
Eel River Bar First Nation Claim
Chief Charlene Belleau
Esk’etemc
Esk’etemc  Specific Claims Submission to the AFN Specific Claims Review Panel: Delia Opekokew, Bryan Shwartz, Robert Winogron

Map: Esk’etemc Traditional Territory Boundary

Map: Esk’etemc Specific Claims Locations

Questions for Further Consideration

   
Dr. Ian Johnson, Negotiator
Kylaik Inc.
Tim Labrande, Lawyer
Librande Law Office
Submission to AFN Specific Claims Review Panel

l

Chief Joe Marshall, Executive Director
Union of Nova Scotia Indians
  1. In Bad Faith: Justice At Last & Canada’s Failure to Resolve Specific Land Claims
  2. An Open Letter to Prime Minister Stephen Harper on the Resolution of Specific Claims
Chief Roland Willson
West Moberly First Nations
AFN Expert Panel on the Specific Claims Process
Whitefish Lake First Nation 15 Years of Failed Negotiations to Settle Our Outstanding Treaty Entitlements for Agricultural Benefits Pursuant to Treaty 8
rdbrinkhurstSpecific Claims Expert Panel Info
Assembly of First Nations
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