Can a better understanding of specific claims data contribute to a fairer process? EVALUATING THE MESSAGE Justice at Last Promised: Fair and timely resolution Transparency Better Access to Mediation An independent and binding process for rejected claims Environment that fosters negotiated settlements Information compiled by: UBCIC, AFN, NNTC

Evaluating the Message Since Justice at Last, we have experienced: Growing concerns regarding the fairness and transparency of the process. We have seen: Research funding cuts Inadequate mediation services Canada’s misconduct at negotiation tables Low rate of success for First Nations Aboriginal Affairs and Northern Development Canada (AANDC) reporting an opposite narrative regarding the success of Justice at Last.

Evaluating the Message Since Justice at Last, Canada asserts: 1.Since Justice at Last was announced, about claims have been settled 2.Settlements are fairly “negotiated” 3.Fewer claims are submitted each year 4.Justice at Last is being implemented in a cost effective manner 5.AANDC has invested “new money” into claims resolution 6.The backlog has been eliminated

Evaluating the Message Resources consulted: Online AANDC’s Specific Claims data base / inventory Online Specific Claims Tribunal database Survey conducted by UBCIC with Claims Research Associations, First Nations and Legal Counsel Case study and analysis of NNTC processed claims Other publicly available documents, decisions, websites, submissions, ATIPs, etc.

Evaluating the Message Settled Claims About 90 claims have been settled Source: Summative Evaluation of the Specific Claims Action Plan AANDC, April 2013

“CONCLUDED” CLAIMS 543 SETTLED CLAIMS 300 (55%) PRIOR TO October 2008 POST October 2008 (Sept. 2014) “CONCLUDED” CLAIMS 572 SETTLED CLAIMS 87 (15%) REJECTED* CLAIMS 485 (85%) REJECTED* CLAIMS 243 (44%) * Rejected claims includes claims deemed as ‘No Legal Obligation’ and ‘File Closed’ Evaluating the Message Justice At Last Act (Oct 2008) Settled Claims / Concluded Claims

Evaluating the Message Canada is Negotiating Claims Source: Summative Evaluation of the Specific Claims Action Plan AANDC, April 2013 “Negotiations is always better than confrontation in securing peaceful settlements that respect the interests of all parties.” Jim Prentice 2007

Evaluating the Message Canada is Negotiating Claims Partial Acceptances: 80% report receiving partial offers on their claims Demands for Release : 75% indicated they are receiving demands for releases on substantive allegations CRU Survey 2014 Partial Acceptances

Evaluating the Message Canada is Negotiating Claims Take it or Leave it Offers 60% received take-it-or-leave-it offers 78% indicated they tried to negotiate these offers with Canada 83% indicated Canada refused to negotiate

Evaluating the Message Canada is Negotiating Claims Unilateral Claim Valuation determines Negotiation Strategy Claim CategoryClaim Value Nominal$0 - $50,000 Small$50,000 – 3,000,000 Regular/Normal$3,000,000 – 150,000,000 “While Canada suggests that the expedited claims process is designed to speed up the settlement process, the process effectively prevented any meaningful negotiation from taking place. Without a meaningful process and by refusing to engage in discussions, Canada was not acting in “good faith”, upholding the honour of the Crown, or living up to the principles enshrined in s. 35(1) of the Constitution Act, 1982.” Justice Patrick Smith – Specific Claims Tribunal

Evaluating the Message Canada is Negotiating Claims Unilateral claim valuation determines negotiation funding available *often determined and imposed by AANDC CategoryClaim value*Negotiation funding available 1 Claims under $40,000 15,000 2 Claims between $40,000 and $99,999 25,000 3 Claims between $100,000 and $999,999 50,000 4 Claims between $1,000,000 and $ $2,999,999– 75,000 5 Claims $3 million and over Max: 427,500 over 3 years “Generally, negotiation loan funding will not be provided and workplans will not be required for Category 1, 2, 3 and 4 claims. As a transition measure, Canada will provide additional funds to support First Nations' participation in ongoing negotiations.” Source: AANDC Specific Claim Negotiation Cost Guidelines

Evaluating the Message Canada is Negotiating Claims A Timeline Becomes an “Operational Model” Three year timeline legislated by SCTA Canada links success of specific claims action to the “percentage of claims under assessment addressed within legislated three years” Timeline intended as a tool for First Nations has been turned into an operational model. No motivation to negotiate – only to address claims and remove from inventory (source: summative evaluation)

Evaluating the Message Canada is Negotiating Claims Six Month Minimum Standard Review Time Determines the Fate of Claims Six months non legislated timeline added for Minimum Standard (MS) review Review conducted by BOTH SCB and DOJ First Nations with nominal or small value claims are made “Settlement offers” that include a 60 day deadline for First Nations to respond. If no response, file is closed Most settlement offers untenable to First Nations Claims at this stage are reported as “in negotiations or Canada offers to negotiate”

Evaluating the Message Tribunal offers opportunity to re-evaluate policies. Tribunal Decisions FC: 1 claim (16%) NLO: 4 claims (64%) UN: 1 claim (16%) BREAKDOWN OF 64 CLAIMS AT THE TRIBUNAL

Evaluating the Message Canada is Negotiating Claims Justice at Last Promised “Ultimately, righting past wrongs is simply the right thing to do. Settling claims helps Canadians come to terms with our history while bringing closure to longstanding grievances for First Nations. Negotiated settlements help rebuild relationships and generate benefits for all Canadians. These benefits include economic benefits, new opportunities for business partnerships and certainty for First Nations, industry and area communities. Negotiations lead to “win-win” situations that balance the interests of all Canadians.” Specific Claims Website (AANDC)

Evaluating the Message Source: Summative Evaluation of the Specific Claims Action Plan AANDC, April 2013 Fewer Claims are Being Submitted

Evaluating the Message Fewer Claims are Being Submitted Current Claims on Work Plan to be Submitted

Evaluating the Message Fewer Claims are Being Submitted Funding cuts to Research Claims

Evaluating the Message Fewer Claims are Being Submitted Projected New Claims for Next Five Years

Evaluating the Message The Cost of Negotiating Claims Fairly If Canada Fairly Negotiates 4 NNTC Claims Activity Estimated Cost per Claim Total for 4 Complex Claims A. Research and Development and Submission of Claims – First Nation Costs $125,000X 4 Claims$500,000 B. SCB Review and DoJ Decision Costs $125,000X 4 Claims$500,000 C. Estimated Claim Value$1,000,000X 4 Claims$4,000,000 Total to Resolve Claims$1,250,000$5,000,000

Evaluating the Message Canada Offers Partial Acceptances with Negotiation Costs for 4 NNTC Claims Activity Estimated Cost per Claim Total for 4 Complex Claims A. First Nation Submits 4 Claims$125,000X 4 Claims$500,000 B. SCB Review and DoJ Decision Costs $125,000X 4 Claims$500,000 C. Costs to First Nation - Consultation CRU & Legal Counsel $1,250X 4 Claims$5,000 D. Negotiation Costs for Canada$100X 4 Claims$400 Total to Resolve Claims$251,350.00$1,005, **First Nations typically do not accept these offers so claims remain unresolved** The Cost of Partial Acceptances

Evaluating the Message 4 Claims Split to 22 Claims Activity Estimated Cost per Claim Total for 22 Split Claims A. Total Spent To-Date to Try and Resolve 4 Claims $251,350$1,005,400 B. Research and Development and Submission of 22 Specific Claims – First Nation Costs $75,000X 22 Claims$1,650,000 C. Review and Decision Costs for 22 Specific Claims $25,000X 22 Claims$550,000 D. Estimated Claim Value for 22 Specific Claims $181,818X 22 Claims$4,000,000 Total to Resolve Claims$533,169.00$7,205, The Cost of Claims Splitting

Evaluating the Message If These 22 Claims are Rejected and NNTC Advances Them to the Tribunal Activity Estimated Cost per Claim Total for 22 Split Claims A. First Nation Costs to File Claim at Tribunal $100,000 (Average) X 18 Claims$1,800,000 B. DoJ and AANDC Costs to go to the Tribunal $100,000 (Minimum) X 18 Claims$1,800,000 C. 11 Claims Win at Tribunal$181,818X 11 Claims$2,000,000 D. Canada Applies for Judicial Review of Tribunal Decision - Costs for Canada $250,000X 7 Claims$1,750,000 E. Canada Applies for Judicial Review of Tribunal Decision - Costs for First Nation $150,000X 7 Claims$1,050,000 F. Estimated Claim Value$181,818X 7 Claims$1,272,726 Total Tribunal Costs$963,636.00$9,672, Total Costs for Advancing and Settling Original 4 Small Value Claims $1,314,986.00$12,878, The Cost of Taking Claims to the Tribunal

Evaluating the Message 2013 Federal Budget: promised “$54 million over two years to ensure that specific claims are addressed promptly.” -NOT “new” money -Massive Cutbacks to R&D ostensibly as part of Deficit Reduction Action Plan -AANDC officials clarified that the “DRAP” cuts are not to money’s promised with Justice at Last but to previously existing specific claims program funding AANDC has invested “new money” into claims resolution Source:

Evaluating the Message Backlog has been Reduced/Eliminated As part of an Access to Information Request obtained by UBCIC, an internal Specific Claims Branch Document claims that: “As of July 23, 2013, the entire Backlog inventory, barring the Treaty 6 Agricultural Implements claims due to be sent in September 2010, had been sent to DoJ.” The SCB is now: “Free from years of accumulated pressure from the Backlog.”

Evaluating the Message What is the Backlog: AANDC’s Version SCB measures the backlog as those claims filed before or on October 16, Claims are removed from SCB’s inventory (backlog) when they “addressed” via the following mechanisms: Settled by negotiations Rejected (no lawful obligation) Files closed

Evaluating the Message

Information obtained via Access to Information Request

Conclusions We know: far fewer claims are being fairly negotiated and settled than AANDC asserts large numbers of claims are currently being developed and many more are identified as new – and yet deep cuts to funding continue claims can be finally resolved in a much more cost effective way and in a way that can bring about true resolution and reconciliation the backlog of claims is not eliminated since the bulk of claim issues are not resolved Evaluating the Message