November 30, 2007
Yesterday saw the unveiling of the new approach to resolving specific land claims, jointly developed by the AFN and Canada.
This new approach has been in the works since last June. It’s one of the first times (first time ever?) that the AFN and First Nations have been at the table with government to draft legislation. As well, a companion Political Agreement was secured by the AFN so that work on important issues that fall outside the legislation will continue.
You can get important information about the new legislation (Bill C-30) and the Political Agreement here. AFN has even produced a handy-dandy guide which walks you through the new approach, and you can get it here.
A few highlights and notable items:
The new system will deal with claims that are valued up to $150 million (which covers about 95% of all claims). Canada and First Nations will continue to work on a new approach for claims that are above $150 million.
The new system creates an independent Tribunal which can make binding decisions on claims. This means the government can no longer control the whole process and can no longer act as judge and jury in deciding claims against itself.
The new system forces the government to respond within three years to the First Nations’ claim, which means the government can no longer delay claims by simply not responding to them. If there’s no response or the claim is not settled in three years, First Nations can take the claim to the independent Tribunal.
The new system now opens up the claims process to types of claims that were shut out of the old process, most significantly pre-Confederation claims.
For the first time, Canada will commit to a specific amount of resources to resolve claims: $250 million each year for the next ten years for the new approach alone. Additional monies can be spent on other claims outside the process.
AFN secured a five year review so First Nations and government have an opportunity assess the process and make any changes – if required – after five years.
There’s a lot more to the new approach so check out the Guide and the info on the website.
And remember: the new legislation is not yet law. It still has to be passed by Parliament and receive “Royal Assent” before it is Canadian law. This could take a few months. AFN has secured resources for regional dialogue sessions by First Nations on the new approach to give everyone time to get informed.
UPDATE: This article raises a few questions about the new approach.
It is true that the independent Tribunal only awards financial compensation, but the new approach is based on negotiation and mediation as the preferred approach to resolve claims. These negotiations can include land as part of the settlement. The prospect of a financial award through the Tribunal is incentive for Canada to reach a negotiated settlement which can include solutions apart from financial compensation. As well, the Political Agreement recognizes the importance of recovering or replacing lost land and commits to reviewing the Additions to Reserve policy.
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6 comments:
I have a few concerns, how could this legislation infringe Aboriginal treaty rights? Individual or collective? The reason why I ask since Specific claims only deal with FN claims how would this be addreesed if say 4 FN were on 1 FN prior to indian affairs dividing them into seperate FN. For instance, a specific claim is being addreesed on the establishment of treaty boundries was unilaterally imposed on a FN that had traditional used the treaty area prior to the signing of treaties. Another instance the relocation of a FN to another treaty territory without the consent of the signatories bands say treaty one Peguis moved to treaty two. Should'nt treaty 2 bands been compensated also for either land being extended to peguis in treaty 2 territory when they signed treaty 1. I think we have to move away from bands and focus on treaty compensation with the signatory bands.Every claime affects all FN's as colective ! By the way what up with the AFN renewal commision? We should All vote For a grand Chief...
Hi Cyril!
Good question and quite a broad inquiry, really.
The new specific claims policy and process and the authority of the independent Specific Claims Tribunal is directly connected to treaty obligations on the part of the Crown. So, whenever we’re talking about lands and claims, Treaty rights can be affected but only to the extent of the claim itself, and the First Nation filing the claim would generally examine the implications on specific Treaty rights. In other words, the whole Treaty is not put into question nor is there any attempt to address all of the Treaty relationship issues through this process (nor should there be, for that matter). Indeed, the Political Agreement which acts as a companion document to this new process specifically states that not all Treaty issues can be addressed by the Tribunal, hence the need for Treaty implementation policy development process between the Crown and First Nations signatories.
As to who gets compensation, the ever present principle about Treaty rights belonging to Treaty beneficiaries and to Treaty or reserve lands being set aside for the benefit of the “band” means that individuals or groups who can establish an ancestral or traditional connection to the land have an interest at stake which can be facilitated by the Tribunal by ensuring that all interested parties can get standing at the tribunal in consideration of the claim.
I hope that helps – I ain’t a lawyer, nor do I play one on TV! I would encourage you to review the Political Agreement between the Crown and AFN that was signed as part of this new Specific Claims process as it deals with issues that go beyond the scope of the legislation. It’s available on the AFN website at www.afn.ca. Excellent question!
As for everyone voting for the national Chief, that was a recommendation from the AFN’s Renewal Commission and it is still an active. The questions that need to be explored is the method used to ensure everyone can vote, both on-reserve and those living away from their communities, and the logistics of such a vote. Any comments on these matters are encouraged.
- AFN Blogger
Lol… it only deal with cash no land… any claims wanting to go into the new process start at 0 and theirs 3 years to respond to the claim then 3 years for negotiations. Then the trial has no end date to it…
Remember there is no land transfer at all so when you send your claim into the new process you will not get any land back…
This is just a new gimmick to try to get you to surrender the land… that’s it… They will then just make you wait again… Trying to get you to go for the cash…
What Canadians do want is the end to the land claims bickering so you can start prospering instead of being trap in court for years…
You will not get the ear of Canadians again…They will think that this was all done long ago…
Interesting theory, Zorro – if that is your real name - but you’re off on a couple key points.
First Nations most certainly can pursue lands, financial redress or any mix under the new process.
First Nations enter into the new process on their own terms. The Independent Tribunal is the last - not the first - step in the process. And, it’s optional. First Nations don’t need to use it if they don’t want to.
Really, the idea behind the Independent Tribunal is that the government has much more impetus to settle fairly, quickly and justly when they know First Nations have recourse to a Tribunal that can make binding decisions.
The Independent Tribunal does not have any maximum timeframes, but it’s staffed by judges, not federal bureaucrats or politicians. And the judges will be “tenured” before, during and after their term on the Tribunal so there’s no self-interest in doing “what the government wants.” Right now, Canada is in a conflict-of-interest in deciding claims against itself. This conflict is removed.
In terms of timeframe, don’t forget that smaller claims will be fast-tracked in the new system so we can chip away more quickly at the backlog.
Under the old system, institutional delay was entrenched and a claim could literally be delayed forever simply by the Department or Minister refusing to deal with it. It was taking 10 years on average to settle a single claim. The new approach will be quicker, cheaper and much more just.
And here’s the kicker: there’s a five year review process, so if after five years First Nations decide we don’t like it, don’t think it’s working, want to fine-tune it or don’t want it at all, so be it.
But there’s no doubt that the new approach is a massive improvement over the old one.
I think that this new system is good in one sense and way off track in another sense it leaves us with more questions than answers just like the old system. But the good thing about it is that you dont have to wait as long as you did in the past, as if 110 yrs werent enough, We can probably survive another 5-10 yrs well some of us any way. But shouldnt the government of canada honour their promises made at the time of the treaties, we as first nations have been peaceful and we shared the land with these people. I have questions and concerns
1. What happens if the claim is denied by the panel of judges?
2. Who is paying the panel of judges?
3. Are there any First nation Judges on the panel?
4. Will the Judges be influenced by raises or politics?
5. Are there any fringes or attached agreenments with the new signing of the documents and will there be land given in these specific claims?
But my main concern is what happens after the settlement if one is agreed apon will the government honour them, and will they quit taxing us, will they stop using up our countries resources up, and will they ever do right by our people?
I am a First Nation person who has no reservation, I am just wondering around and would really like to have the government honour the treaties like I have, and give our reserve land back at least.
Sorry for the delay! Let me first say: Good questions! I’m not a lawyer, nor do I play one TV, but here are the answers I can provide (be sure to read the information on our website that summarizes the new approach – it’s linked in the blog posting):
1. The Independent Tribunal is the final step and, like a court, decisions are final (you can, of course, go back with a different case). Remember that First Nations don’t have to use the Independent Tribunal if they don’t want to. Those who do will want to make sure they bring their best case forward. Ideally, claims will be settled early on through negotiation and mediation because, unlike the old process, the government has incentive to settle knowing First Nations have an Independent Tribunal they can go to if the government won’t play fair.
2. Judges on the Independent Tribunal will be superior court judges and their source of income will not change. This was done intentionally to ensure that judges have no new constraints or incentives for sitting on the tribunal. (se point 4 below, as well)
3. The members of the Independent Tribunal have not yet been selected as the legislation has not yet formally been passed by Parliament (this should happen some time this session). The AFN is working to ensure First Nations will have input into the selection of judges, as stated in the companion Political Agreement.
4. See point 3 above. In addition, judges will be tenured before, during and after their time on the panel so no one can use threats or inducements to influence their decisions.
5. Not sure exactly what you’re asking. There is a Political Agreement that is a companion piece to the new legislation (see reference in point 3) but I’m not sure that’s what you’re referring to. On the matter of land, land can - and no doubt will - be part of claims submitted under the new system and land can be provided (or, more accurately, returned) under the new system. The Independent Tribunal only provides monetary compensation but the Tribunal is an optional, last step, and First Nations can of course use any monetary awards to purchase lands if that’s how they want to go.
As for your big question about honouring the settlements, it’s important to remember that this was a jointly-developed and jointly-agreed to process. Canada has a huge financial, legal and moral liability when it comes to land claims and it’s in their interests to implement and respect a better system. Once Parliament passes the new legislation, it is law enforceable by the highest courts in the land. If we just look at the daily news, it’s clear that First Nations won’t much longer to see action on this matter. So one more reason for a proactive approach.
Great questions and, again, I encourage you to read the overview document that summarizes the new approach. The link is in the original blog post.
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