Specific Claims Reform: Significant Progress but Questions Remain
The Specific Claims process has the potential to make a real contribution to Aboriginal Nations. The settlement of a specific claim reserves a longstanding grievance and injects much needed money (and often land) into the aboriginal community.
The potential has been frustrated in recent years through a hopeless institutional gridlock that has developed at the Specific Claims Branch of INAC and at the Department of Justice.
Over the years the rate of claims filing has greatly exceeded the glacial pace of claims processing. The waiting period for receiving an acceptance or a claim (or even a rejection!) ballooned from a few years to decades. Justice delayed was swiftly becoming justice denied.
Bill C-30, the Specific Claims Tribunal Act, passed by a unanimous House of Commons vote, on May 13, 2008. It promises to put in place some much needed changes. Most significantly, the legislation places a three year time limit on the processing of a claim. The Crown must now move a claim from filing to either acceptance or rejection within three years. If Canada does neither within the allotted three year period, the Aboriginal Nation will then be free to take its claim to a newly created independent tribunal.
Three years may not sound like a tight schedule for Canada to either accept or reject a claim. Considering, however, that the time limit applies to the entire backlog of specific claims, the deadline is revolutionary. Canada will have to either radically alter its slow-moving claims review process or face the prospect of hundreds of specific claims flooding the new tribunal.
The new tribunal itself is a breakthrough. For many years Canada was the final judge of whether a specific claim was valid – Canada was the "judge, jury and executioner". That changed, somewhat, with the formation of the Indian Claims Commission (the ICC) – a body that would investigate and provide detailed reports concerning rejected specific claims. The problem was these reports were just recommendations and Canada often declined to follow them when the ICC validated a specific claim. The new tribunal is different – it will be able to bind Canada and award damages.
The tribunal will be comprised of Superior Court judges – chosen by Canada – but with the input from the Assembly of First Nations. Monetary awards are capped at $150 million per claim, with a $250 million annual settlement budget. The tribunal option is a valuable one and may well serve to inject some much needed energy and innovation into the specific claims process as a whole.
The reform is not without its flaws. The most obvious question is what becomes of larger specific claims – those that substantially exceed the tribunal's $150 million limit? Canada has promised, in a "political" agreement with the Assembly of First Nations, that it will establish an alternative process for addressing claims over $150 million. But will this political agreement be honoured?
Recent political agreements between Canada and the Assembly of First Nations often seem as though they were written in water. They have been discarded (the Kelowna Accord) or simply broken (the political agreement that day students at residential schools would be eligible for the common experience payment). Will this political agreement fare any better?
For the majority of specific claims, however the legislative reform is a positive development. Whether the change will deliver "Justice at Last" as promised in Canada's glossy brochures, depends on whether Canada's commitment to implementation matches its ambitious legislative reform.