Specific Claims Department – Lands and Resources Secretariat Specific Claim Negotiations Current Challenges Ottawa, On October 2014

Specific Claims Department – Lands and Resources Secretariat Justice at Last  In June of 2007, Canada released Justice at Last, an action plan to address the large number of outstanding specific claims.  It contained “four interdependent pillars” which were to provide new policy rationale to improve the process of settling outstanding specific claims.  The fourth pillar stated: “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”.

Specific Claims Department – Lands and Resources Secretariat Has Canada lived up to its commitment in Justice at Last? Has Canada moved from negotiating claim settlements to an insurance adjuster model to try to resolve claims?

Specific Claims Department – Lands and Resources Secretariat Partially Accepted Claims  When Canada sends out a letter accepting a claim for negotiation, frequently only some allegations are accepted for negotiation while others are rejected.  This is not necessarily new but what is different is a lack of flexibility within negotiations to find a resolution to the claim.  As a condition for entering negotiations, Canada demands that the First Nation agree to provide a full and final release on all allegations.  This puts the First Nation in a difficult position. Do they enter negotiations knowing that to settle, they will have to sign off on all allegations to achieve a settlement? Or, do they treat the letter as a rejection and proceed to the Tribunal?

Specific Claims Department – Lands and Resources Secretariat Partially Accepted Claims  One of the principles of interest based negotiations is that the parties move away from positions and look at interests. A rigid approach to what can and cannot be negotiated before negotiations begin eliminates any flexibility that may allow the parties to reach a negotiated settlement.

Specific Claims Department – Lands and Resources Secretariat Narrow Mandate & Limited Authority to Negotiate One of the first questions asked is, do the parties have the authority to negotiate?  Increasingly, negotiators for Canada are given narrow mandates with little flexibility to negotiate, and have to seek direction from usually unnamed senior officials in Ottawa.  Making matters more difficult is that negotiators are often limited in the number of negotiation meetings held in a year with the majority of meetings expected to be conducted by conference call.  Successful negotiations are often as much about building personal relationships as resolving the issues. It is therefore frustrating for First Nations when dealing with negotiators who do not have the authority to negotiate, and who are not able to meet in person on a regular basis.

Specific Claims Department – Lands and Resources Secretariat Pre-Valuation of Claims  When Canada accepts a claim for negotiation they do a valuation of the claim before negotiations begin.  For loan funding purposes the claim is then put in a category depending what Canada feels the value of the claim is.  The purpose of negotiations is for the parties is to negotiate reasonable compensation to put the First Nation back in the position it would be had the breech not occurred. It is impossible to know the value of a settlement prior to negotiations occurring.  If Canada gets locked into a valuation of a claim prior to actual negotiations, there is little flexibility to achieve a settlement.

Specific Claims Department – Lands and Resources Secretariat Limits on Funding  Loan funding has long been available for First Nations to fund negotiations. These loans are then written off as part of the settlement.  Canada now makes loan funding available only for what it considers larger claims based on an internal assessment of the value of the claim – before negotiations have actually commenced.

Specific Claims Department – Lands and Resources Secretariat Limits on Funding  Funding for studies may be on top of the cap, but the First Nation must submit the terms of reference, after which Canada arbitrarily determines how much funding will be provided. Experience has shown funding will be significantly less than what the consultant will charge.  Additionally, loan funding for negotiations may only be available for 3 years.  Inadequate funding makes it difficult for First Nations to achieve a negotiated settlement. In fact, this is contrary to one of the four pillars of Justice at Last: Establishing “greater transparency” through “new funding arrangements” to determine “how well the government is handling claims” and whether “adequate funding is available”.

Specific Claims Department – Lands and Resources Secretariat Small Claims  If Canada believes a claim falls under the category of small claims, no loan funding is available for the First Nation to negotiate.  In these situations, First Nations have been provided with take it or leave it offers which usually includes what is termed a global offer for settlement, plus a top up of $50,000 as part of the settlement to cover legal and ratification costs.  The First Nation is given 90 days to accept such an offer, and if they do not, the file is deemed to be closed by Canada.

Specific Claims Department – Lands and Resources Secretariat Small Claims  The Specific Claims Tribunal pointed out in the Aundeck Omni Kaning (AOK) decision, this does not constitute negotiations: “This position, along with the process employed by the Specific Claims Branch for small value claims in relation to this Claim, and perhaps many others, is, frankly, paternalistic, self-serving, arbitrary and disrespectful of First Nations. It falls short of upholding the honour of the Crown, and its implied principle of “good faith” required in all negotiations Canada undertakes with First Nations. Such a position affords no room for the principles of reconciliation, accommodation and consultation that the Supreme Court, in many decisions, has described as being the foundation of Canada’s relationship with First Nations.”

Specific Claims Department – Lands and Resources Secretariat Unwillingness to Engage in Mediation  Justice at Last talked about better access to mediation in order to help resolve claims through negotiations.  Canada proposed setting up a centre for mediation which was to be housed within AANDC. However, there were concerns from First Nations and First Nation organizations that this could compromise the neutrality of the mediators.  To date since the release of Justice at Last, I am not aware of a single Saskatchewan claim where Canada has agreed to mediation as part of the negotiation process.

Specific Claims Department – Lands and Resources Secretariat Large Claims  Claims over $150 million are excluded from the jurisdiction of the Tribunal.  A commitment was made as part of a Political Agreement signed between the Minister of Indian Affairs (now AANDC) and the National Chief of the AFN which, among other things, committed Canada to working with the AFN to develop a process to address claims over $150 million.  There is currently no new process for these larger claims and no engagement with AFN.

Specific Claims Department – Lands and Resources Secretariat Conclusion  In 2007, Canada released Justice at Last. One of the four pillars stated that: “…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.”  Canada has not lived up to its commitments and instead has taken an approach which the Specific Claims Tribunal has described as paternalistic, self-serving, arbitrary and disrespectful of First Nations.  Instead of trying to resolve issues through negotiations, claims are being pushed into the Tribunal process which is directly contrary to the promises in Justice at Last.

Specific Claims Department – Lands and Resources Secretariat Conclusion Canada seems to have moved way from negotiating claims to an insurance adjuster model to try to resolve claims. Canada tells the First Nation what they think the claim is worth and if the First Nation does not agree then they can move into a different process ie the Tribunal. Saskatchewan has been one of the most successful regions in Canada in resolving specific claims, having achieved over a billion dollars in total specific claim settlements. It would not have been possible to achieve many of these settlements today given Canada’s current approach to the negotiation of specific claims.