Chiefs determined to wrestle control of specific claims process away from federal government

Chiefs at the Assembly of First Nations are pushing for a fully independent specific claims process that would see the federal government have much less control.

The resolution to develop such a mechanism was supported by 92 per cent of chiefs on Dec. 9, the second day of the AFN’s annual general assembly.

That overwhelming support came even though Crown-Indigenous Relations Minister Carolyn Bennett told chiefs the night before that she looked forward to “find(ing) more innovative ways of dealing with these specific claims.”

Bennett’s response to many chiefs who asked questions about their specific claims lacked commitment, however.

“We have numerous land claims, specific claims in the system. (There are) challenges with the logistics of multiple claims…Would it be possible for the Canadian government to bundle these claims into one process?” asked Muskowekwan First Nation Chief Reg Bellerose.

He also pointed out that holding five ratification votes for five different claims presented “major challenges” with band members, many of whom did not fully understand the process.

“I think there is a way of us bundling claims and if people have the same situation, we should be able to use the same research and the same way of settling them in a fair way. We will get back to you again on this and I look forward to us finding a way forward that’s a little bit more efficient,” said Bennett.

Speaking to chiefs the day after Bennett’s presentation, Nova Scotia/Newfoundland Regional Chief Paul Prosper, who holds the portfolio for lands, territories and resources and co-chairs the chiefs committee on claims, said changes to the specific claims process have stalled.

“Since Justice at Last, AFN has been working to make the process of resolving specific claims more independent of the federal government,” said Prosper.

“Right now the federal government controls virtually every aspect of the claims resolution process.”

Justice at Last: A Specific Claims Action Plan (JAL) was introduced by Canada in 2007. The Specific Claims Tribunal, a key component of JAL, was established to provide First Nations who were dissatisfied with Canada’s response to their claims with access to an impartial, binding decision-making body.

However, according to information on the AFN website, fewer than 15 per cent of claims resulted in settlements as the majority of claims were either rejected or closed.

In 2016, the Auditor General released an audit of the specific claims process and found that Canada had failed to adequately implement JAL. Canada committed to working with First Nations and the AFN to address the inadequacies.

The result was the formation of an AFN-Canada Joint Technical Working Group (JTWG) mandated to examine Canada’s specific claims process and develop recommendations for change. The JTWG began meeting in November 2016.

Last year the AFN led a First Nations engagement process on how to implement a “truly independent process,” said Prosper, and those results informed the resolution considered by chiefs.

“For the resolution of specific claims (they) must operate fully independent from Canada in all aspects, including eliminating Canada’s assessment of claims against itself. The funding and oversight of the entire claims process must also be independent of Canada,” said Kathleen Lickers, external legal counsel for AFN.

“We need to make sure that we’re equal parts when we come to negotiations and any claims that we have because we are a sovereign nation,” said Pimicikamak Cree Nation Chief David Monias.

Arbitrary limits on compensation, which now sits at $150 million, need to be removed, said Okanagan Indian Band Chief Byron Louis, who pointed out that the there are many colonial claims in British Columbia that are more than $150 million.

The resolution removed this limit on compensation, stating, “First Nations should have access to a fair process of redress that fits their needs and priorities.”

Chief Shining Turtle of Whitefish River First Nation voiced concern that Canada’s compensation came in the form of financial compensation and not land.  

“Canada has no land so one of the issues we have to wrestle with right now is now we have to take on the province and there has to be a piece (in the resolution) that implores Canada to be much more rigorous in getting the province involved in getting the land back to us other than sending a few letters (to the province),” said Shining Turtle.

Chief Judy Wilson, who advanced the resolution, agreed that “one of our central issues in specific claims…(is) the division of power with the federal and provincial governments. The provinces were given land and resources and that’s what we end up dealing with when the claims are being negotiated. Then the provinces use the delay-and-deny tactics to not fulfill those negotiations.”

Shining Turtle asked that the resolution include that the federal government “compel” the provinces to participate in the specific land claims process.

Federal government legislation in this case makes it clear that Ottawa cannot compel the provinces to participate, said Lickers.

“But in every other element of the process that we are exploring and working to explore in this proposal, there’s nothing that prevents the voluntary and active participation of the provinces, particularly as it involves land,” she said.

Jody Woods, another technical advisor, pointed out that the resolution included recognition of Indigenous laws, which are “grounded in land and territory, and so I think the wording is good.”

The resolution states, “The recognition of First Nations’ laws may impact the conduct of adjudication, dispute resolution, and negotiation.”

Federation of Sovereign Indigenous Nations Chief Bobby Cameron had a clear message for Bennett when he addressed her: “The chiefs across Canada and many First Nations Elders and knowledge keepers have done their homework, their research. They’re ready to settle these comprehensive claims, these land claims, these specific claims. The recommendation, direction we would give to you is to sign on the dotted line and let’s start improving the quality of life for our First Nations right across Canada.”

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.