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.

Why?

Canada's failure to address and resolve the legitimate claims of First Nations.

Imagine your new neighbour comes into your backyard and fences off half of it. Then he sells 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 course.

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.

Sounds crazy?

Welcome to the world of Indian Specific Claims. Specific Claims arose when Canada and its 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. First 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 Nations.

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EXECUTIVE SUMMARY

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 First Nations.

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.

Related addresses:

URL 1: www.parl.gc.ca/39/1/parlbus/commbus/senate/com-e/abor-e/rep-e/rep05dec...