The release by the federal government in 1982 of Outstanding Business: A Native Claims Policy, set out the process for establishing specific claims and guidelines for the assessment of these claims as well as the funding for the preparation of claims, the negotiation process and compensation criteria. Due to concerns about the process and backlog of claims, amendments were made to the Policy in the 1990's. With demands by First Nations for an independent claims body and continuing concerns about the backlog of claims, in 2007 the Prime Minister announced the Justice at Last; Specific Claims Action Plan. Two of the objectives of this Action Plan were faster processing of claims and the establishment of an independent claims tribunal. The Specific Claims Tribunal was established in 2008, with the passage of the Specific Claims Tribunal Act, to render binding decisions on specific claims that concern issues of validation and compensation.
The process governing specific claims was established to allow First Nations to have their claims addressed through negotiations with the government rather than going through the courts. If it is shown that Canada has breached its lawful obligation to a First Nation, the claim will be accepted; if a claim is rejected, the First Nation has a number of options:
- Resubmit the claim along with new evidence and legal argument,
- Litigate the claim through the regular court process, or
- File a Declaration with the Specific Claims Tribunal. This became an active part of the claims process in 2011. Previously these claims would have been brought before the Indian Specific Claims Commission (ISCC).
The processing of specific claims remains with the Department of Aboriginal Affairs based on the principle that outstanding lawful obligations must be established by claims a claims submission and supporting documents. Valid claims will be accepted for negotiation and compensated based on legal principles and any settlement must result in a full and final resolution of the claim. The preparation, submission and negotiation of claims are funded under the claims process and the Statutes of Limitation, the Doctrine of Laches and other defences do not apply in the consideration of specific claims.
Specific Claims Process
Although the general process and principles under Outstanding Business still apply, the policy has been replaced in 2008 by the Specific Claims Policy and Process Guide, which introduced some new processing guidelines following passage of Specific Claims Tribunal Act. The grounds for a claim and compensation criteria remain essentially the same. However, now a claim to be assessed:
- Must be submitted by a First Nation or group of First Nations suffering the grievance.
- Must concern events that occurred 15 years prior to filing the claim.
- Cannot be based on a land claims agreement or self-government agreement
- Cannot concern the delivery and funding of programs and services such as education, social assistance, child protection, health etc.
- Cannot be based on an agreement whether the First Nation and Canada agreed to another process for resolution of the claim.
- Cannot be based on Aboriginal rights or title.
- Cannot be based on treaty rights related to activities of an "ongoing and variable nature" such as harvesting rights.
- Compensation must be based on the compensation criteria.
There are five stages in the processing of specific claims:
- Submission – First Nations are responsible for researching and submitting their own claims that not only establish a breach but are submitted in compliance with the Minimum Standards outlined in the Policy.
- Early review – to ensure compliance with the Minimum Standards before it is considered to have been filed with the Minister. The three year assessment period starts when filed.
- Research and Assessment – the Minister has three years (in consultation with Justice) to determine whether the claim will be accepted for negotiation or not, based on the assessment criteria and grounds for acceptance.
- Negotiation – begins after the Minister notifies, in writing, that the claim has been accepted for negotiation, in full or in part, and the First Nation agrees, by Band Council Resolution, to proceed with negotiations based on the acceptance notice.
- Settlement – once an agreement has been reached it is ratified and signed and compensation is provided and the settlement is implemented.
Specific claims submissions that are still in the process of assessment after three years, as well as claims that are rejected or claims that were in negotiation but not settled within three years, can be brought forward to the Specific Claims Tribunal on issues of validation and compensation, as long as the claim for compensation in under $150 million.
The claims process is extremely complex, which makes it difficult to predict how long it will take a claim to be resolved. Historical research can take up to a year, followed by several months to prepare the legal arguments and organize the necessary documents to meet the minimum standard for a claim. Just the assessment and negotiation of a claim can take up to six years. It is not uncommon for claims that were initiated in the early 1990s to still be in the process today.
For more information on his practice, contact Knoll & Co. Law Corporation.