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Backgrounder: First Nations and Specific Land Claims

WHAT ARE SPECIFIC LAND CLAIMS?

At one time, all the land in this country belonged to the Aboriginal peoples. Many First Nations entered into Treaties with Canada (or “the Crown”) that, among other things, established arrangements to share the land.  Specific land claims arise when Canada has failed to set aside land under the treaties; where reserve land was taken illegally; or where Canada has improperly administered First Nations’ lands or other assets. Specific claims are lawful obligations or debts that are owed to First Nations by Canada.  Claims are often resolved by providing financial compensation to the First Nation, by providing actual land as compensation, or a mix of both.

WHY DOES CANADA NEED TO RESOLVE SPECIFIC CLAIMS?

Justice: Specific claims are legal matters; they are lawful obligations that are legally enforceable. They are not discretionary spending. If an individual is legally wronged - a victim of theft or fraud, for example – that person rightly expects legal remedies, including compensation. In a basic sense, the situation is no different for First Nations. The compensation is lawfully owed. First Nations can use these resources to improve their communities. Dealing with claims also will prevent situations such as the Oka crisis in Quebec or, more recently, in Caledonia, Ontario. These situations cost all Canadians and can be avoided through the fair resolution of claims.

Claims are a Financial Liability for Canada:
Canada’s financial liability to First Nations continues to grow each year, as does the backlog of specific claims. Currently there are about 1000 claims in the backlog according to Indian and Northern Affairs Canada (INAC).

Canada has the Financial Ability to Resolve Claims:
Canada has enjoyed multi-billion dollar financial surpluses for a number of years now.  Between 1996 and 2004, Canada recorded significant surpluses which were applied to pay down the national debt at a rate of over $8 billion per year.  If even a fraction of this $8 billion dollars per year was put toward claims, there would be significant progress in resolving outstanding claims. The cost of not settling these claims creates economic uncertainty and an additional burden on Canada’s health care system, social programs, education, and housing infrastructures. Resolving these claims is in everyone’s best interests.

WHAT IS THE CURRENT SITUATION WITH THE BACKLOG?
It wasn’t until the early 1970’s that First Nations were able to examine why their lands and assets were lost under the administration of the federal government.  Part of the reason these claims were not brought forward earlier was due to a provision in the federal Indian Act which prohibited Indians from making claims or seeking legal advice to make claims. This provision of the Indian Act wasn’t repealed until 1951.

The current backlog of specific claims continues to grow and the costs continue to mount.  As of December 31, 2005, INAC indicates that 1,046 claims remain unsettled as follows:

Under Review: 626

Under Negotiation: 122

In Active Litigation: 71

In the Indian Specific Claims Commission Process: 35

Other not settled: 192

TOTAL  UNSETTLED: 1046

Claims Settled since 1973:  272

This translates to approximately 8 claims settled per year.  At this rate, settling the current backlog of 1046 claims will take 130 years.

WHAT IS THE PROBLEM?

Canada is in a conflict of interest:
The government has set-up a process where it is judge and jury in the claims process. The federal government controls every step: Canada decides what is and is not a valid claim; Canada decides what issues will be negotiated; and Canada ultimately decides what – if anything - will be offered as a settlement. Canada is in a clear conflict of interest.

The existing Specific Claims process is slow, inefficient and costly:
It takes an average of 9-10 years to resolve a single specific claim. Canada currently has well over 1,000 specific claims in the system, with more coming in every day.  The current system is failing everyone - First Nations and Canadian tax-payers. The cost of negotiating claims sometimes equals the cost of the settlement.  First Nations believe the claims process should be fair and impartial for both Canada and First Nations.

WHAT IS THE SOLUTION?

Create a claims process that is fair, independent and transparent:
A truly fair process must remedy the federal government’s current conflict of interest.  Much work has already been done. In 1998, a Joint Task Force on Claims Policy Reform set-out a new approach to resolve claims that is fair,

fast and efficient. The report was prepared and endorsed by First Nations, INAC and the federal Department of Justice. A solution is, in effect, ready to go.  All that is needed is the political will to

implement it. The Indian Specific Claims Commission (ISCC) also provides an alternative for First Nations, in that it reviews claims that have been rejected by the federal government. The ISCC can only make recommendations, however, that are not binding on the federal government. Of 27 reports where the ISCC recommended that the Minister of Indian Affairs accept a claim for negotiation, the Minister accepted only six of those recommendations.

Adequate financial resources are required to resolve the backlog in claims:
Currently, $100 million per year is dedicated to claims resolution. Experts state that $500 million-to-$1 billion a year is required for satisfactory progress. Canada is enjoying a period of fiscal surplus, enough that this amount could be allocated while still preserving a surplus.

Auditor General review:
A review of federal claims policies by the Auditor General is another solution that can insert fairness into the claims resolution process.  Consideration could be given as to how national economic statements and accounts can better reflect the reality that specific claims are a part of the national debt.  Additionally, Parliament could enact legislation that specifically alters limitation periods in respect of specific claims.

It is important that Canada work in partnership with First Nations to develop a new approach and new legislation to deal with First Nations claims. Further delay will cost all Canadians and all First Nations. The time to act is now!