Knoll & Co. Law Corporation has extensive experience preparing, submitting and negotiating specific land claims settlements, including:
- Unlawful surrender claims
- Unlawful lease claims
- Treaty Land Entitlement Claims
- Special, administrative or claims of another kind
- Treaty Adhesion claims
Most claims in Canada, apart from those in litigation, are settled either under the "comprehensive claims policy" or the "specific claims policy". Other aboriginal claims are being negotiated and settled under the B.C. treaty process or through separate treaty negotiations that resulted, for example, in the Nisga'a Treaty. Current specific claims are being processed under the new "Specific Claims Policy and Process Guide" which replaced the old policy guide "Outstanding Business" following passage of the Specific Claims Tribunal Act. While comprehensive claims address claims where aboriginal title and rights have not been settled by treaty or agreement, specific claims relate to claims brought by First Nations concerning the administration of their land and other assets and the fulfillment of their treaties. Canada's preference under the Policy is to settle claims through negotiation. While over 460 claims have been settled since 1973, there remain a backlog of claims and concerns about the process.
A specific claim seeking compensation for losses may be brought on any of the following grounds:
- Failure of Canada to provide lands or other assets under a treaty or agreement;
- Breach by Canada of a legal obligation under the Indian Act or any other legislation pertaining to Indians or their lands;
- Breach by Canada of a legal obligation related to the provision or non-provision of reserve lands, including unilateral undertakings that give rise to a fiduciary obligation, or the Crown's administration of reserve lands, Indian moneys or other assets;
- An illegal lease or disposition by Canada of reserve lands;
- Failure by Canada to provide adequate compensation for reserve lands taken or damaged; or
- Fraud by employees or agents of the Crown in connection with the acquisition, leasing or disposition of reserve lands.
The Indian Specific Claims Commission (ISCC)
The Indian Claims Commission was established by Order in Council in 1991 with the goal of being an alternative to the courts for First Nations whose specific claims were rejected by the Department of Indian Affairs. This body was permitted to provide non-binding recommendations on the validity of claim and assisted in the facilitation of negotiations, as well as providing mediation services.
During the course of the ISCC's mandate, over 80 Enquiry reports were prepared. Canada accepted 19 of the recommendations, rejected another 19, accepted 19 claims for negotiation while the Enquiry was underway and failed to respond to 24 claims with recommendations when the ISCC was disbanded in 2009. During its existence the ISCC provided a neutral forum for First Nations to have their rejected claims heard and reviewed and were able to access the mediation services of the ISCC. The Commission also facilitated the negotiations, the gathering and coordination of evidence and heard oral testimony at the community level.
As of 2011, the process has changed and claimants whose claims have been rejected are able to bring their grievances to the Indian Specific Claims Tribunal, which was created by the Specific Claims Tribunal Act of 2008.