Canada's Specific Claims Policy: Senate Committee Demands Reform
In December 2006, the Senate Standing Committee on Aboriginal Peoples issued its final report on Canada's Specific Claims process entitled "Negotiation or Confrontation: It's Canada's Choice". The Committee's detailed study commences dramatically:
"Oka, Ipperwash, Caledonia.
Blockades, masked warriors, police snipers.
Why?
Canada's failure to address and resolve the legitimate claims of First Nations."
The study points out that Canada's failure to adequately address First Nations grievances concerning the Crown's management of native lands, assets and resources has been characterized as an issue of human rights. The Committee states squarely that the system is failing and sets out detailed recommendations for reform.
What has caused this strongly-worded condemnation of the Specific Claims Process from Canada's usually staid and conservative chamber of sober second thought?
The Specific Claims process in Canada began with good intentions. In 1973, Canada issued a statement recognizing two general classes of aboriginal claims. "Comprehensive Claims" were seen as those based on aboriginal title. "Specific Claims" were those based on individual breaches of Canada's lawful obligations. The latter category would include failure by Canada to properly administer aboriginal reserve land, monies and other assets, breaches of Canada's fiduciary obligations to First Nations and the non-fulfillment of treaty obligations.
In July of 1974, Canada established the Office of Native Claims to administer its new Specific Claims program. It was anticipated that specific historical wrongdoing by Canada would be resolved out of court, through good faith negotiation.
The Senate Report, issued some 32 years later, shows just how far Canada's Specific Claims process has fallen short of the mark. The report points out that, as of September 30, 2006 1,337 Specific Claims had been filed by First Nations. Of this total only 275 Specific Claims had been settled and 861 were sitting unresolved.
Estimates vary as to the magnitude of the Specific Claims backlog. The undeniable consensus, however, is that the process is in a state of institutionalized gridlock. The written submission of the National Aboriginal Law Section of the Canadian Bar Association provided the conservative estimate that, at its present rate of claims processing, it would take Canada 53 years to address the backlog.
Much of the backlog is caused by Canada's failure to allocate sufficient legal resources to claims review. As the Senate Committee notes, staff turnover and the paucity of lawyers assigned to Specific Claims work at the Department of Justice has allowed hundreds of claims to be indefinitely stalled at this stage.
Beyond the issue of the bureaucratic backlog, the Senate Committee delves into the fairness of the Specific Claims process itself. The lack of independent claim review undermines Canada's credibility. The report quotes Grand Council Chief John Beaucage of the Union of Ontario Indians as describing Canada's role in the Specific Claims process as being, "much akin to being judge, jury and executioner in the Old West".
Canada's rejections of a Specific Claim can be challenged by way of an inquiry by the Indian Claims Commission. Canada's track record for following recommendations issued by the Indian Claims Commission, however, is spotty. On many occasions Canada has simply refused to follow the recommendations set out in detailed Indian Claims Commission reports.
The Senate Committee Report is not simply a dry dissection of a bureaucratic program gone wrong. It contains a detailed analysis of why Canada should settle Specific Claims. Going beyond the "moral imperative" of settling just claims, the Report points to the "financial and economic imperatives" estimating Canada's contingent liability for Specific Claims at anywhere between $6 and $12 billion dollars. The report also deals frankly with the "political and historical imperatives" outlining how it is that an injustice left to fester decade after decade can ultimately result in acts of civil disobedience or worse. Finally, it sets out the "legal imperatives"; a state based on the rule of law cannot simply deny redress an entire class of legal claims.
The Committee calls for the establishment of a dedicated fund for the payment of Specific Claims settlements. It seeks a commitment by Canada to contribute at least $250 million per year to the fund on an annual basis. It recommends the establishment, within two years, of a new independent claims body for the settlement of Specific Claims and makes several recommendations concerning the provision of additional human and financial resources at all stages of the Specific Claims process. These recommendations were seen as essential first steps in creating an honourable and workable Specific Claims process.
The Senate Committee recognized that its recommendation for the establishment of independent claims body was not a new one. An appendix to their report set out a long list of similar recommendations commencing as long ago as 1948. The most recent attempt to set up an independent claims body came in 2003 with Bill C-6, an Act to Establish the Canadian Centre for the Independent Resolution of First Nations Specific Claims. That Act, however, was seen by First Nations as establishing an unfair process that would wrongfully exclude many valid Specific Claims. The Minister of Indian Affairs, the Honourable Jim Prentice, appearing before the Senate Committee, agreed that the legislation would have to be either rewritten or discarded.
The ultimate test will be whether the Minister, working together with First Nations, can succeed in establishing a legitimate and impartial body for addressing Specific Claims; an objective that has eluded legislators over the past 60 years.
The Senate Committee challenges the Government of Canada to think broadly about Specific Claims. The resolution of these claims not only compensates First Nations but serves to provide an economic foundation for healthy and stable aboriginal societies. Such a new perspective could allow for the rehabilitation of this critically important system for resolving aboriginal claims.
Allan Donovan is a lawyer at Donovan & Company in Vancouver. Donovan & Company is a 9-lawyer firm practising exclusively in the area of Aboriginal Law.