Template Submission To Five Year Review Of Justice At Last by HC120831104236


									                                    [ON YOUR LETTERHEAD]

Anik Dupont, Director General,
Specific Claims Branch, AANDC,
10 Wellington Street,
Gatineau Quebec, K1A 0H4

[Insert Date]

RE: Submission to Canada’s Five Year Review of the Specific Claims Action Plan: Justice at Last

Dear Ms. Dupont,

Please accept this as the [Insert name of First Nation] submission to Canada’s mandated five year review
of the Specific Claims Action Plan: Justice at Last.

[Insert name of First Nation] traditional territory is located [DESCRIBE].
     Consider listing the number and make up of your reserves: “we currently hold seven reserves, a
         number of which are the subject of potential specific claim investigations.” At some point in
         your submission, you may want to provide specific examples from one or more of your claims.
     Consider describing the circumstances under which your reserves were created (allotted as part
         of BC reserve creation process, treaties, etc.). You may refer back to this in this submission.

Justice at Last promised to bring about the fair just and timely resolution of specific claims through
negotiation and mediation so that Canada’s lawful obligations with respect to Indian lands and assets
were finally fulfilled and resolved. This was to be achieved through a number of measures:

   1. Creating “impartiality and fairness” through the creation of a new Independent Claims Tribunal
      with the power to make “binding decisions”.
   2. Establishing “greater transparency” through “new funding arrangements” to determine “how
      well the government is handling claims” and whether “adequate funding is available”.
   3. “Faster processing” of claims to “improve internal government procedures”, with “separate
      arrangements” to handle claims over $150 million.
   4. “Better access to mediation” through a “neutral third party” where “every reasonable effort will
      be made to achieve negotiated settlements and cases would only go to the tribunal when all
      other avenues have been exhausted”.
Justice at Last also renewed and strengthened Canada’s commitment to pursue settlement of Specific
Claims through negotiations.
[Insert name of First Nation] respectfully submits that Justice at Last has failed to fulfill these promises.
Canada has systematically departed from the meaningful resolution of specific claims through
negotiation and mediation and moved to a narrow and legalistic approach. It has set up burdensome
and unnecessary bureaucratic obstacles and has not provided appropriate funding so that First Nations
can surmount these obstacles. It has effectively shifted an overwhelming backlog of unresolved claims
onto the new Specific Claims Tribunal and likewise has not provided the Tribunal or First Nations with
appropriate resources to fulfill the enormous task they now face. In BC, this situation is particularly
acute since First Nations in British Columbia have over half of all specific claims in Canada.

Canada is not engaging in meaningful, good faith negotiations aimed at reconciliation, rather, Canada is
making "take-it-or-Ieave-it" final settlement offers to First Nations that often fall far short of the real
value of the claim.

Canada is rejecting claims and closing meritorious claims files at an alarming rate. In so doing, Canada is
transferring its lawful obligation to resolve Specific Claims to the new, under-resourced Specific Claims

Many First Nations have been receiving misleading notifications indicating that their submitted claims
have been “accepted for negotiations.” In fact, for many of these claims, only one or two aspects of a
claim has been accepted (and then, often only the most minor components). The substantive allegations
are rejected.
     Consider providing an example from your own community’s specific claims, if applicable

Moreover, Canada is requiring that First Nations sign a release on all aspects and allegations of a claim –
whether accepted by Canada or not - meaning that First Nations must extinguish their rights to pursue
the settlement of rejected portions of their claims elsewhere.
     Consider providing an example from your own community’s specific claims, if applicable

First Nations have been forced to respond to this by “splitting claims:” carving off rejected components
of complex specific claims and re-filing these as separate claims. In many cases, this results in ten or
more new claims originating from one original claim. Not only does this result in a significantly increased
expense, it is creating a large influx of new specific claims.
      Consider providing an example from your own community’s specific claims, if applicable

The Specific Claims Branch is imposing bureaucratic and operational obstacles to the fair and timely
resolution of specific claims, including:
     Using the legislated three year timeline, originally established to compel Canada to negotiate in
        good faith, as an "operational model" by which Canada has internally determined it must
        "address" Specific Claims within this time period;
     Offering only limited or partial acceptances;
     Walking away from active negotiations that may extend beyond the three year timeline;
     Unilaterally imposing a "minimum standard" for claim submission and turning away new claims
        filed with the Minister causing additional delays and significant costs to First Nations. Creating
        an unlegislated six month period to "review" filed claims that delays the resolution of Specific
     Consider providing an example from your own community’s specific claims, if applicable
Canada uses its online inventory to publicly report that the majority of specific claims in Canada are
“concluded.” This is a bureaucratic tool that appears to have been used to create an impression of
transparency while in fact misrepresenting the reality of the situation. Contrary to SCB statistics, claims
are being rejected and closed at a rate of 9 out of every 10 claims being filed. These claims are reported
as “concluded” in Canada’s specific claims inventory. They are not resolved and Canada’s lawful
obligation is not fulfilled. Only about 1 in 10 specific claims filed is actually being settled.
     Consider providing an example from your own community’s specific claims, if applicable. You
        can do this by reviewing the specific claims status report (link provided) to see how Canada has
        reported on your community’s specific claims.

Resources to research specific claims at the front end are already inadequate, causing lengthy and
unnecessary delays. This limited budget is further stretched by the influx of new claims that is arising
due to Canada’s policy of offering only partial acceptances and demanding release on the rejected
portions of claims.

Now the costs for First Nations to bring forward claims to the Tribunal (including legal costs) will come
from the same budget as research funding. As more and more First Nations are forced to turn to the
Tribunal in the absence of meaningful negotiations and more and more new claims are filed as a result
of claim splitting, less and less money will be available to research new claims.

The promise of Justice at Last is not being fulfilled and, despite the Specific Claims Branch’s positive
reports, the state of specific claims is, we fear, worse than ever before.

We urge Canada to honour its promises and return to the spirit and intent of Justice at Last. To this end,
we make the following recommendations:

    1. Canada take seriously its responsibility to assess claims on their merit and to negotiate such
       claims in an honourable manner based on legal principles, rather than pressing First Nations into
       an unfair “expedited settlement process”.
    2. Canada must ensure that all aspects of a claim are considered fairly and on its merits. Canada
       must stop using the negotiation of one aspect of a claim as leverage to force the claimant to
       abandon pursuing the rest of the claim at the Tribunal, or to accept an arbitrary and lowball
       compensation envelope where this is seen as strategic.
    3. At the negotiations stage, it should be the claimant’s choice whether to proceed to the Tribunal,
       and the three-year window should not be turned into a weapon against claimants who need
       more time to conduct negotiations with an adequate basis of information and community
       Canada should reestablish a senior political body (such as the former Joint Liaison and Oversight
       Committee) as a joint forum for problem solving.
    4. Canada establishes oversight of its bureaucracy to ensure that fair processes are implemented in
       the areas of claims processing and funding. Bureaucratic practices should be guided by the
       principle that Canada is not an adversary attempting to minimize liability through all means fair
       or foul, but a fiduciary attempting in good faith to conscientiously evaluate claims on their
       merits, and thereby restore and enhance the honour of the Crown consistent with the principle
       of reconciliation.
   5. Canada negotiates cost of settlement negotiations based on a standard of reasonableness,
      rather than offering what are in effect “signing bonuses”.
   6. Canada and First Nations jointly create and wherever possible participate in an independent
      mediation process which could relieve Tribunal of large burden of claims.
   7. Canada provide adequate resources to all claimants at all stages of the claims process and must
      be provided at levels commensurate with the new demands on claimants at the research and
      filing stage, as well as in the event that they go before the Tribunal.
   8. Canada ceases its practice of imposing the minimum standard unreasonably.
   9. Canada report accurately on the resolution of specific claims. The reporting of claims statistics
      by Canada should be carried out by an independent or arms-length body to ensure that
      information is represented objectively and without bias.
   10. Canada and First Nations jointly establish a fair process to resolve claims over $150.
   11. Canada honour its commitment that claims that were already considered by the Indian Specific
       Claims Commission, have immediate access to the Tribunal (rather than forcing these claimants
       to go through six years or more of “stage one” processing.)
   12. Canada and BC First Nations jointly develop a system to deal specifically with BC Claims issues.
   13. Efforts should be made to continue to engage Parliamentary Committees to gather information
       and make recommendations with respect to the administration of the new claims system;
       including the House of Commons Standing Committee on Aboriginal Affairs reconvening its
       study on the Specific Claims Tribunal.



CC/ (Suggested for your consideration)
Minister John Duncan, AANDC Executive Offices
Union of BC Indian Chiefs
House of Commons Standing Committee on Aboriginal Affairs and Northern Development
Pierre Nantel – NDP Deputy Critic Canadian Heritage
Tyrone Benskin, NDP Critic for Canadian Heritage
AFN National Chief Shawn A-in-chut Atleo
All BC First Nations or All First Nations
BC AFN Regional Chief Jody Wilson-Raybould
First Nations Summit

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