Independent Claims Body - Some Improvements But The Real Problem Remains

At present, when Canada refuses to accept a Specific Claim for negotiation, a First Nation may submit the rejected claim to the Indian Claims Commission. The principal flaw of this Commission is that its decisions are mere recommendations to the government, who is not bound to follow them. For some time now, however, the federal government has been working out a proposal for an Independent Claims Body to replace the Indian Claims Commission and to modernize the Specific Claims process. The features of the proposed Independent Claims Body can be gleaned from Bill C-60 [Specific Claims Resolution Act], which was recently tabled in the House of Commons in Ottawa.

What Grievances Can First Nations Take to the Independent Claims Body?

As with its predecessor, the Independent Claims Body limits the kinds of claims that First Nations can submit for negotiations. First Nations can submit claims based on events that occurred at least 15 years before the filing of the claim, and that relate to:

1. The Crown's breach of, or failure to fulfil, a legal obligation including fiduciary obligation:
   1. a legal obligation that relates to the provision of lands or other assets and that arises from an agreement between the First Nation and the Crown or from a Treaty;
   2. a legal obligation under any legislation pertaining to Indians or lands reserved for them of Canada or a British Colony now part of Canada;
   3. a legal obligation that arises out of the Crown's administration of reserve lands money or other assets.
2. An illegal lease or disposition by the Crown of reserve lands;
3. Failure to provide compensation for lands taken or damaged by the Crown or any of its agencies under legal authority;
4. Fraud by any employees or agents of the Crown in connection with the acquisition, leasing or disposition of reserve lands (s. 26-1).

In some ways, these categories are broader than those of the Independent Claims Body's predecessor. Notably, claims based on breach of fiduciary duty are to be allowed. However, the list of potential Specific Claims is now presented as an exhaustive definition - as opposed to simple examples of outstanding breaches of lawful obligation. Consequently, First Nations wishing to submit claims to the Independent Claims Body will first have to determine how to fit them into the listed categories.

Note as well that claims that are the subject of proceedings outside of the Independent Claims Body cannot be filed, unless these other proceedings have been adjourned. In other words, a First Nation cannot try to resolve its outstanding grievance through the Independent Claims Body and some other proceeding at the same time.

The Independent Claims Body Process

Under the new process, a First Nation submits its claim to the Independent Claims Body's Commission. The role of this Commission is to facilitate the movement of a Specific Claim through the Independent Claims Body's process. The Commission formulates the criteria for Specific Claims funding, then administers the funding for research, preparation and conduct of Specific Claims by First Nations. The new Commission is to assist First Nations and Canada in the effective use of dispute resolution processes, and to refer issues relating to the validity of a claim or compensation for a claim to the other branch of the Independent Claims Body - the Tribunal.

Once a First Nation has submitted a Specific Claim to the Commission, the Commission readies the claim for the Minister's review. First, the Commission organizes a meeting or meetings of the parties to identify and clarify the basis of the claim and the facts and legal issues involved, and to determined if further research is required. The claim is then provided to the Minister.

Next, the Minister has to make a decision about the validity of the claim. In deciding whether or not a claim is valid, the Minister must ignore any time bar to the claim. In other words, the fact that a lot of time has passed since the events that give rise to the claim took place is not a factor that the Minister can take into consideration.

If the Minister decides not to negotiate the claim, the First Nation can ask the Commission to help the parties try to resolve the claim by way of various dispute resolution processes. If these are not successful, the First Nation has the option of asking the Commission to refer the issue of the claim's validity to the Tribunal, but only if the First Nation agrees to waive compensation for the claim in excess of $7 million. When deciding the issue of the claim's validity, the Tribunal, like the Minister, cannot take the passage of time into consideration.

If the Tribunal decides that the claim is not valid, this decision is binding on the parties and is not subject to appeal except for a judicial review under the Federal Court Act.

If the Tribunal decides that the claim is valid and should be negotiated - or if, for that matter, the Minister decided in the first place that the claim was valid and should be negotiated - the Commission is charged with helping the parties resolve the issue of compensation. If the negotiations regarding compensation are not successful, the First Nation can ask the Commission to refer the matter to the Tribunal. The Commission is obliged to refer the matter of compensation to the Tribunal provided appropriate dispute resolution processes have been exhausted, the First Nation has waived compensation in excess of $7 million and there are sufficient funds available to the Tribunal in the current fiscal year to compensate this and all other claims still before the Tribunal (for the issue of compensation) to the maximum of $7 million.

When calculating the amount of compensation that is appropriate for the claim, the Tribunal must use principles of compensation applied by the courts. Again, once the Tribunal has made a decision, the parties are bound by it and cannot appeal it except by way of judicial review under the Federal Court Act.

Interesting Features of the New Process

As with the predecessor process, claims submitted to the Independent Claims Body will not be rejected simply because time has passed since the relevant events took place.

The key feature of the new process is that its outcome will be binding on the parties, including on the Province if it has agreed to be added as a party to the claim. Unlike the recommendations of the Indian Claims Commission, which the government could, and often did ignore, an Independent Claims Body decision is binding.

Another improvement is the obligation now placed on the Minister to report on the status of outstanding, filed claims every six months. This may place some degree of pressure on Canada to inject sufficient resources into the system in order to address the claims backlog that plagues the current system.

Concerns About the New Process

There are, however, obvious flaws with the proposed new set-up.

First, the Independent Claims Body's Chief Executive Officer, the Commissioners and the Tribunal's adjudicators are all appointed by government and eligible for reappointment. Some fear that this arrangement may not leave enough distance between the Independent Claims Body's employees and their employer to ensure the impartiality of Independent Claims Body decisions. Concern has also been expressed that First Nations representatives are not included in the process of selecting Commissioners.

While there is no cap on the compensation amount that can be negotiated, claims that cannot be successfully negotiated and that are submitted to the Tribunal cannot yield compensation in excess of $7 million. While most claims fall below this ceiling, it will be frustrating and difficult for First Nations, whose claims are valued well in excess of the $7 milion cap, to waive the excess compensation in order to move their stalled claim through the process.

The new Independent Claims Body proposal does not address the current backlog of Specific Claims submitted to the federal government. It not clear how and in what sequence claims already submitted will be merged into the new regime. Further, the government appears to have done nothing to ensure that claims will be processed more quickly. In fact, the new process might well create another backlog - this time at the Tribunal's gates, where First Nations will undoubtedly line up for the Tribunal's ruling on the validity of a rejected claim or on compensation issues.

While the proposed Independent Claims Body gives First Nations more options for the resolution of Specific Claims, it does not come to terms with the structural backlog that undermines the current process. It is hoped that this, and the other defects in the proposed new claims body, will be addressed before the proposed legislation is enacted.