Re-Engaging: Five-Year Review of the Specific Claims Tribunal Act

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QS: -5416-000-EE-A1
Catalogue: R5-124/2016E-PDF
ISBN: 978-0-660-05898-6

The opinions and views outlined in this independent report are those of Mr. Benoît Pelletier, the Ministerial Special Representative on the Five-Year Review of the Specific Claims Tribunal Act. They are not necessarily the opinions or views of the Government of Canada.

A copy of Mr. Pelletier’s full report is available to interested parties upon request by contacting: InfoPubs@aadnc-aandc.gc.ca.

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Executive Summary

Subsection 41(1) of the Specific Claims Tribunal Act provides that the Minister of Aboriginal Affairs and Northern Development shall undertake a review, (the "Five-Year Review"), of the mandate and structure of the Specific Claims Tribunal, of the efficiency and effectiveness of its operation, and of any other matters related to the Act, within one year of the fifth anniversary of the Act's coming into force. Subsections 41(2) and 41(3) of the Act provide that the Minister shall cause to be prepared, and sign, a report which shall be submitted to each House of Parliament.

This report, prepared by the Ministerial Special Representative, reflects the above-noted requirements. Throughout the engagement period for this Five-Year Review, First Nations were given an opportunity to make representations as outlined in subsection 41(1) of the Specific Claims Tribunal Act. The window for accepting submissions closed on May 15, 2015, and included a broad cross-section of First Nations, First Nations organizations, and stakeholders. During the engagement process, interested parties expressed various concerns regarding the Act and the Specific Claims Tribunal itself, as well as the filing, assessment and negotiation of specific claims.

A number of recommendations have been made throughout this report, under four general categories: (1) items for future consideration; (2) joint exploratory discussions; (3) changes to the Specific Claims Tribunal Rules of Practice and Procedure ("Rules of Practice and Procedure");and, (4) other recommendations. The various recommendations contained in this report are summarized on pages 90 to 92.

None of this report's recommendations proposes immediate changes to the Specific Claims Tribunal Act, primarily because nothing raised during the consultation process warranted any pressing change. Secondly, it is not the Act itself that is the issue, as much as the way in which the parties and the Tribunal proceed, pursuant to the Rules of Practice and Procedure. Thirdly, the majority of representations were not about the Act itself, but rather about the Department's internal process. The latter subject is raised in Part Two of this report, entitled Filing, Assessment and Negotiation of Claims at the Specific Claims Branch.

That being said, this report does propose joint exploratory discussions and items for future consideration, which may result in eventual changes to the Act.

Any eventual changes to the Specific Claims Tribunal Act,including those that may be derived from this report, must be undertaken in cooperation with First Nations. Such cooperation is essential to the long-term reconciliation of both parties.

Overall, the report encourages re-engagement between the Government of Canada and First Nations. This would include comprehensive implementation of the principles contained in this report, regarding the fair, effective and efficient resolution of specific claims, in accordance with commitments made in 2007 as part of the Justice At Last initiative.

This report ultimately argues for a renewed and more positive process involving conciliation and engagement between the Government of Canada and First Nations, which has in turn inspired the report's title: Re-Engaging.

Summary of Recommendations

1. Items for eventual consideration by the Government of Canada

  • Expand the Tribunal's role to include performing preliminary assessments of claims, based on the minimum standard or their merits (p. 28).
  • Take steps to ensure that First Nations are aware of the availability of, and conditions for, mediation with an independent mediator (p. 32).
  • Addressing the discrepancy between the Specific Claims Policy and the Justice At Last initiative with regard to specific claims over $150 million. It is suggested that the term "specific claims" be defined in the former in a way that is consistent with the latter (p. 34).
  • Develop, in association with the five Métis governments, a forum for resolving and/or negotiating the latter's specific claims (p. 37).
  • Create a satellite version of the Specific Claims Tribunal in Vancouver to deal with the large portion of specific claims that come from Western Canada (p. 51).
  • Allocate more resources for French-English and Aboriginal language interpreters to the Specific Claims Tribunal and the Administrative Tribunals Support Service of Canada, to accommodate French-specific claims and Aboriginal-language witnesses (pp. 62–63).
  • Develop a more effective method for educating and engaging provinces and territories with regard to specific claims that affect them, with the goal of increasing their participation in Tribunal proceedings and increasing judicial efficiency (p. 65).
  • Show greater willingness to waive settlement privilege during Tribunal proceedings, with regard to (but not limited to) expert reports and witnesses, and allow the use at the Tribunal of reports and evidence gathered and jointly approved by the federal government and First Nations during negotiations (pp. 70 and 76).
  • Develop a training program for Specific Claims Branch employees regarding the correct and consistent interpretation and application of the minimum standard, which focuses on fundamental deficiencies of a claim rather than procedural errors (p. 83).
  • Re-examine the Specific Claims Branch's practice of partial acceptance of claims, to ensure the proper application and appropriate exchange of release (p. 85).

2. Joint exploratory discussions

  • Subject to increasing resources at the Tribunal, change its role to include overseeing negotiations at Stage Two of the Specific Claims Branch process (p. 29).
  • Include mediation in the Tribunal's mandate, subject to the same condition as above (p. 32).
  • Work together with First Nations to develop a mutually agreed-upon method of addressing specific claims above $150 million (p. 34).
  • Discuss the three-year timeframes and attenuate the controversy surrounding their application (p. 43).
  • Expand the scope of subsection 6(2) of the Specific Claims Tribunal Act,in order to allow the nomination of Tribunal members who are not necessarily Superior Court judges to adjudicate at the Specific Claims Tribunal. This could include the nomination of retired judges from superior or federal courts, or members of quasi-judicial tribunals. The nomination of such members should be made directly by the Governor in Council (p. 49).
  • Consider the appointment of specialists and independent experts, with suitable qualifications in the field of Aboriginal law, as members of the Tribunal. The nomination of such members should be made directly by the Governor in Council. If such a change were implemented, a corresponding right to appeal Tribunal decisions, in addition to judicial review, should be included (p. 49).
  • Create a position for prothonotaries at the Tribunal, to lighten the burden on Tribunal members and assist them with particular procedural tasks. Develop a plan to modify the Rules of Practice and Procedure to allow prothonotaries to oversee case management conferences (pp. 49 and 54).
  • Elaborate Tribunal proceedings to include paper hearings, while fully accommodating oral testimony as a vital part of First Nations evidence (p. 62).
  • Improve the funding mechanism for First Nations' specific claims to better accommodate the latter's financial needs for Tribunal proceedings (p. 69).
  • Develop reasonable conditions for the re-submission of the same specific claims to the Specific Claims Branch, as well as a reasonable limit on the number of re-submissions of said claims following unfavourable decisions from the latter (p. 75).
  • Initiate a joint collaboration between Canada and First Nations towards improved communication and cooperation regarding the application of the minimum standard (p. 83).

3. Changes to the Specific Claims Tribunal Rules of Practice and Procedure

  • Amend the Rules of Practice and Procedure to give the Tribunal a clear conciliatory role, rather than an adversarial one that is more reflective of a Superior Court (p. 40).
  • Develop rules that are more flexible with regard to the formal requirements of expert witnesses and reports. Make these requirements more conducive to the expedited and collaborative resolution of specific claims (p. 70).

4. Other recommendations

  • Discuss with First Nations any future amendments to the Specific Claims Tribunal Act — including those derived from this report — before their coming into force (p. 11).
  • Appoint additional members to the Specific Claims Tribunal as expeditiously as possible — in particular, at least one more full-time member and several more part-time members, pursuant to subsection 6(4) of the Specific Claims Tribunal Act (p. 49).
  • Within the context of proportionality of costs, First Nations and the Government of Canada must make efforts to resolve specific claims as expeditiously as possible, which will translate into limiting expenses associated with litigation (p. 70).
  • First Nations and the Government of Canada must work together in order to achieve a level of information and transparency when it comes to decisions by the Specific Claims Branch, as well as access to historical records that is mutually satisfactory (pp. 77–78).
  • Within five years of the tabling of the Minister's report, the Minister of Aboriginal Affairs and Northern Development shall embark on another review of the mandate and structure of the Tribunal, the efficiency and effectiveness of its operation, and other matters related to the Specific Claims Tribunal Act (p. 78).
  • In the spirit of reconciliation, the Government of Canada and First Nations must engage in meaningful negotiations with an earnest desire to resolve specific claims at the negotiation stage (p. 86).
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