Negotiation or confrontation
Senate Committee says there are only two choices for handling First
Nations land claims.
Dateline: Friday, January 12, 2022
by Gerry St. Germain
and Nick G Sibbeston (Gerry St. Germain and Nick G. Sibbeston are
the Chair and Deputy Chair, respectively for the Standing Senate
Committee on Aboriginal Peoples. )
Oka, Ipperwash, Caledonia
Blockades, masked warriors, police snipers.
Canada's failure to address and resolve the legitimate claims of First
Imagine your new
neighbour comes into your backyard and fences off half of it. Then
it to someone down the street. This new neighbour
tells you he got a good deal but he won't say how much he got. Then,
he says that he'll take care of the cash — on your behalf, of
Maybe he even spends a little on himself.
You complain. He denies he did anything wrong.
What would you do?
Go to the proper authorities? Turns out that the authorities and their
agencies work for him.
Sue him? He tells
you that none of the lawyers can work for you — he's
got every one in town working for him. When he finally lets a lawyer
work for you — it turns out that he can afford five of them for
every one you can afford.
Finally he says: Okay, I'm willing to discuss it. But first you have
to prove I did something wrong. Oh, and I get to be the judge of whether
you've proved it. And, if you do prove it, I get to set the rules about
how we'll negotiate. I'll decide when we've reached a deal and I'll
even get to determine how I'll pay the settlement out to you. Oh, and
I hope you're in no rush because this is going to take about twenty
or thirty years to settle.
Welcome to the
world of Indian Specific Claims. Specific Claims arose when Canada
agents failed to live up to Canada's responsibilities
in connection with First Nations' lands, monies and assets. In some
cases Canada didn't give them the land they were promised in the treaties.
In some cases, they got the land only to have it taken away again — in
a way that violated Canada's own rules. In other cases, federal employees
actually stole Indian land, money or other assets.
Until the 1950s,
First Nations were prohibited by law from hiring lawyers to pursue
these claims — many
of which date back 70, 100 or 200 years. Since then impoverished
Indian communities have had
to fight the federal government in court or else persuade it to acknowledge
the claim and negotiate a settlement. Currently, everything is done
on Canada's terms and the government is both defendant and judge.
With few resources allocated to find solutions, it can often take
twenty or more years from the time a First Nation comes forward with
a claim to finally reaching a settlement.
Despite the amazing hurdles, almost 300 claims have been settled.
In every case where they have been settled, it has meant an immediate
improvement in the lives of First Nations people. It has also strengthened
relations between Canada and those First Nations and between those
First Nations and the communities that surround them. Settling outstanding
claims is not only the just thing to do, it is the smart thing.
Close to 900 claims
sit in the backlog. Things are getting worse rather than better.
Nations have been patient — incredibly patient — but
their patience is wearing thin.
This report proposes a series of actions the government can take immediately
to improve the process and demonstrate to First Nations that Canada
is serious about living up to its lawful obligations. It also proposes
some longer-term measures that will resolve this issue once and for
all. No one expects Specific Claims to be cleared up over night. But
we have to start and we have to start now.
The choice is clear.
Justice, respect, honour.
Oka, Ipperwash, Caledonia.
Canada is a great nation in the world but Canada will only achieve
true greatness when it has fulfilled its legal obligations to First
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The twenty-five-year-old Specific Claims policy of the Department
of Indian Affairs and Northern Development (DIAND) is the basis for
the process by which the federal government means to respond to First
Nations' historic grievances. This policy requires the federal government
to determine whether it breached lawful obligations or committed errors
or frauds in managing First Nations' lands, monies, and other assets
and, if so, to determine and pay the compensation owed to the affected
In its study of Specific Claims, the Committee found the process to
be fraught with delay and so ineffective as to be working to the detriment
of the government's stated objectives.
Almost 900 of the approximately 1,300 claims submitted since 1970
are in the system at one stage or another. If only 70 percent of those
outstanding claims prove valid, one witness estimated it could take
ninety years to deal with the backlog at the present rate of ten or
less a year.
The Committee heard that First Nations are extremely frustrated with
the process. They see conflict of interest in a system wherein the
government judges and compensates for claims made against it. Even
though the policy is intended as an alternative to the courts, the
Committee heard that the process is confusing, complicated, time-consuming,
expensive, adversarial and legalistic. As it stands, First Nations
have little practical recourse to either mediation or the courts.
The establishment of an independent body for resolving Specific Claims
through a cooperative effort by First Nations and Canada was the long-term
solution recommended by most witnesses. As a starting point, they favoured
the 1998 recommendations of the First Nations-Canada Joint Task Force
on Specific Claims Resolution, saying that the 2003 Specific Claims
Resolution Act should not be implemented.
The Committee also heard that, in the short term, DIAND and the Department
of Justice need to improve procedures in the existing process. They
need to use more collaborative approaches and they need to have resources
sufficient to stabilize or reduce the growing backlog of unresolved
claims. For the system to work, First Nations require equal access
to government records as well as the human and financial resources
to research and prepare claims submissions.
Witnesses urged that Specific Claims be recognized as an economic
issue. In light of the immediate need of most claimant First Nations
for timely compensation to equip them to pursue economic development
activities, several witnesses felt funding to resolve Specific
Claims should be made available with First Nations' economic needs
in mind and not as discretionary funding.
Hearing and accepting that the current Specific Claims process is
not an intelligent way to seek resolution, and that Specific Claims
have moral, human rights, financial, economic, political and legal
dimensions, the Committee recommends:
an increase in funds available for settlements;
the establishment of an independent body within two years;
adequate resources for the existing process;
the adoption of new guiding principles.
The Committee fears that failing to find the political will to act
appropriately on Specific Claims could invite confrontations.
The choice is Canada's.
Gerry St. Germain and Nick G. Sibbeston are the Chair and Deputy Chair,
respectively for the Standing Senate Committee on Aboriginal Peoples.
URL 1: www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/abor-e/rep-e/rep05dec...