Grants to First Nations to settle specific and special claims negotiated by Canada and/or awarded by the Specific Claims Tribunal: Terms and Conditions
- Legal and Policy Authority
- Purpose, Program Objectives and Expected Results
- Type and Nature of Eligible Expenditures
- Total Canadian Government Funding and Stacking Limits
- Method for Determining the Amount of Funding
- Maximum Amount Payable
- Basis on which Payments will be made
- Application Requirements and Assessment Criteria
- Due Diligence and Reporting
- Official Languages
- Other Terms and Conditions
"Specific claims" are claims made by a First Nation against the federal government which relate to the administration of land or other First Nation assets and to the fulfillment of Indian treaties. The primary objective of the Specific Claims Policy is to discharge outstanding legal obligations of the federal government through negotiated settlement agreements.
In 2007, this government launched Justice at Last, an historic initiative intended to address significant process deficiencies that had resulted in a large and growing backlog of unresolved claims. Justice at Last is based on 3 major pillars:
- the Specific Claims Tribunal (the Tribunal), an independent adjudicative body established by statute in October, 2008 with the authority to make binding decisions in respect to the validity of claims and compensation to a maximum value of $150 million per claim;
- the Specific Claims Settlement Fund (Settlement Fund), created in December 2008 and resourced at that time at $250 million annually for 10 years to pay out settlement agreements and awards of the Tribunal; and
- a fundamental reform of internal processes based on 3 year operational frame works for the assessment and settlement of claims consistent with time frames set out in the Specific Claims Tribunal Act.
A less common category of claims known as special claims exists. Special claims are those claims, the substance of which does not fall precisely within the gambit of the specific or comprehensive policies, but for which compelling legal, moral, political and policy reasons exist to respond to them. Special claims require a separate source of funds and are not paid out of the funds for the settlement of specific claims.
2. Legal and Policy Authority
Department of Indian Affairs and Northern Development Act, R.S.C., 1985, c.I-6., s. 4
Specific Claims Tribunal Act, R.S.C., 2008, c. 22.
3. Purpose, Program Objectives and Expected Results
The overall objective is to ensure that specific and special claims are resolved with finality in a faster, fairer, and more transparent way. Achievement of this goal will be supported by:
- The operation of the Specific Claims Tribunal, an independent body with binding decision-making powers and the authority to establish monetary awards up to a maximum of $150 million per specific claim; and
- The implementation of a streamlined process to accelerate the resolution of specific claims.
Results will be achieved in three fundamental areas: review and assessment stage; assessment of validity; and negotiations.
As defined in section 16 (1) of the Specific Claims Tribunal Act, a First Nation may file a claim with the Tribunal only if the claim has been previously filed with the Minister and:
- the Minister has notified the First Nation in writing of his or her decision not to negotiate the claim, in whole or in part;
- three years have elapsed after the day on which the claim was filed with the Minister and the Minister has not notified the First Nation in writing of his or her decision on whether to negotiate the claim;
- in the course of negotiating the claim, the Minister consents in writing to the filing of the claim with the Tribunal; or
- three years have elapsed after the day on which the Minister has notified the First Nation in writing of the Minister’s decision to negotiate the claim, in whole or in part, and the claim has not been resolved by a final settlement agreement.
Successful achievement of the results will be supported by the observance of these time limits for addressing specific claims at each stage:
- a three-year limit from the time a new specific claim is deemed to be filed with the Minister of Indian Affairs and Northern Development to the rendering of decision by the Minister of Indian Affairs and Northern Development on whether the specific claim is accepted for negotiation or rejected; and
- if the specific claim is accepted for negotiation, the time period in which to achieve a negotiated settlement with Canada will also be three years, however, can be extended if both parties agree.
This process will support the expected results of the Aboriginal Rights and Interests Program Activity under The Government Strategic Outcome by achieving specific claims settlements and avoiding costly litigation for all parties.
The key results that DIAND plans to achieve are:
- The successful operation of the Specific Claims Tribunal, including the Registry to support the work of the tribunal;
- The successful operation of mediation services for First Nations who are negotiating their specific claim with Canada;
- Increase the number of negotiation tables from 100 to 120 annually; and
- Increase the number of specific claims that are successfully resolved through negotiations or through a hearing conducted by the Specific Claims Tribunal.
These results will contribute to the achievement of the long term outcomes of Canada’s Action Plan as follows:
- Sustainable use of lands and resources;
- Justice for First Nations claimants; and
- Certainty for government, industry and Canadians respecting disputed lands, resources or relationships.
A Performance Measurement Strategy has been developed to support Canada’s Action Plan on the resolution of Specific Claims. This Performance Measurement Strategy includes a plan for the collection of data for ongoing performance monitoring and measurement that will enable the Director General of the Specific Claims Branch to report on the progress towards achieving the planned objectives and outcomes. DIAND has the primary responsibility for monitoring, data collection and reporting and will use certain data and information supplied by officials of the Department of Justice as well as information from the Registry of the Specific Claims Tribunal.
Key performance measures identified in the Performance Measurement Strategy include:
- Claims accepted for assessment;
- Claims accepted for negotiation;
- Negotiation tables; and
- Settlement Payments.
The related indicators are:
- Number of claims accepted for assessment;
- Number of claims accepted for negotiation;
- Number of negotiation tables; and
- Number and amount of settlement payments.
The implementation of Canada’s Action Plan is subject to on-going performance monitoring by the Specific Claims Program management and an evaluation by DIAND’s Audit and Evaluation Sector as well as a review on compliance with the Treasury Board Policy on Transfer Payments. Performance results will be reported in DIAND’s Report on Plans and Priorities and in the Departmental Performance Report.
In the Program Activity Architecture, this authority is listed under The Government / Aboriginal Rights and Interests
- First Nations and individuals pursuant to the Indian Act and the Specific Claims Tribunal Act. Individual means those individual members who chose the severalty route, that is those who chose to live outside a reserve but are entitled to receive lands pursuant to Treaty No.8;
- Associations of Rural Municipalities for payment to Rural Municipalities for the loss of their tax base as a result of the Settlement of Treaty Land Entitlement Claims; and
- Provinces for the Payment to School Districts of compensation for the loss of their tax base as a result of the settlement of Treaty Land Entitlement claims or for the payment in relation to severalty claims.
Eligible Initiatives and Projects
Specific and Special Settlement Agreements achieved by Canada with First Nations.
Decisions that award monetary compensation rendered by the Specific Claims Tribunal.
5. Type and Nature of Eligible Expenditures
The eligible expenditures will be compensation to First Nations as negotiated by Canada and stipulated in settlement agreements; and monetary compensation established by the Specific Claims Tribunal to First Nations. Funds will be used to cover the costs of: specific claims settlement payments that have either been negotiated by Canada, including those settled after being filed with the Specific Claims Tribunal, or awarded by the Specific Claims Tribunal; interest attributable to Canada’s payment of settlements in instalments; reimbursing Canada for loans obtained by First Nations to participate in negotiations; and surveys, and environmental assessments conducted on Canada’s behalf when there is a land component in a negotiated settlement agreement. Loans obtained pursuant to the Loans to Native Claimants program will be deducted from the total financial compensation. The Tribunal shall deduct from any award of costs in favour of the claimant, any amount provided to the claimant by the Crown for the purpose of bringing the claim before the Tribunal. If the compensation is to be paid out in installments (multi-year payments), interests costs will also be included.
Funds, not from the Specific Claims Settlement Fund, will also be used for Special Claims for the same eligible expenditures as Specific Claims.
Due to the nature of the payments, the use of monetary compensation received by a First Nation are not subject to expenditure control by either Canada or the Specific Claims Tribunal. These payments are designed to achieve full and final settlement of a specific claim and are not considered Indian Moneys pursuant to the Indian Act. Charges to the specific claims settlement fund can include settlement agreements negotiated by Canada or awarded by the Specific Claims Tribunal (including amounts to recover negotiation loans) and in special circumstances, interest on settlement payments made by instalments not exceeding a five-year period from the date of the award by the Specific Claims Tribunal or as negotiated by Canada. In return, Canada will receive a full indemnification/release from the claimant Indian Band on all issues pertaining to the specific claim settled. In addition, a First Nation receiving monetary compensation from the Specific Claims Tribunal will be required to release and indemnify Canada related to their specific claims before the tribunal.
6. Total Canadian Government Funding and Stacking Limits
Total government assistance for the same purpose and eligible expenditures shall not exceed 100% of the eligible expenditures.
7. Method for Determining the Amount of Funding
The grant amount is determined through a settlement agreement between Canada and the claimant First Nation or through monetary awards established by the Specific Claims Tribunal.
8. Maximum Amount Payable
The maximum amount payable to the eligible recipients will not exceed the amount appropriated by Parliament for this purpose.
The maximum amount payable is $150 million per claim. The compensation determined by a settlement agreement between Canada and the claimant First Nation and monetary awards established by the Specific Claims Tribunal will typically be paid in one lump-sum. However, special circumstances may occur where scheduled payments are necessary. For example, the Specific Claims Tribunal could issue several decisions establishing monetary awards and Canada could achieve several settlement agreements in a given fiscal year. In this instance Canada may be obliged to make instalment payments until the Specific Claims Settlement Fund is replenished through Supplementary Estimates. In all instances, Canada will reserve the right to pay out all outstanding amounts.
9. Basis on which Payments will be made
Payments are made in accordance with the terms and conditions detailed in negotiated agreements. Compensation payable pursuant to a settlement agreement and/or established by the Specific Claims Tribunal will be paid in one lump sum. Only under special circumstances will payments be made in instalments and, pursuant to the Specific Claims Tribunal Act, the schedule of payments will be for a maximum of five years.
10. Application Requirements and Assessment Criteria
A specific claim must be submitted and filed with the Minister of Indian Affairs and Northern Development and must meet reasonable standards with respect to the type of information required.
11. Due Diligence and Reporting
The evaluation process or criteria to be used to assess the effectiveness of the program will be addressed through the Performance Measurement Strategy. This examination may include, but is not limited to: programming/initiative rationale, success, cost-effectiveness, design and delivery, results achieved, and the nature of impacts and effects resulting from the implementation of the initiative.
12. Official Languages
Where a program supports activities that may be delivered to members of either official language community, access to services from the recipient will be provided in both official languages where there is significant demand and Part IV of the Official Languages Act is applicable. In addition, the department will ensure that the design and the delivery of programs respect the obligations of the Government of Canada as set out in Part VII of the Official Languages Act.
13. Other Terms and Conditions
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