Specific Claims Tribunal Review

by

SCT1

Specific Claims Tribunal Act Five Year Review

Submissions of

Wayne Garnons-Williams, Senior Lawyer and Principal Director,

Garwill Law Professional Corporation

&

Gordon Lafortune, Managing Partner,

Woods Lafortune, LLP

April 13, 2015

  1. These submissions are made in response to the Request for Views to be considered as part of the Five-Year Review of the Specific Claims Tribunal Act (the “Act”).
  1. The Request for Views document issued by the Department of Aboriginal Affairs and Northern Development lists nineteen questions which are intended to elicit comments on five specific issues which comprise the focus of the review as set out in Section 41(1) of the Act. Rather than separately address the mandate, structure, efficiency and effectiveness of the Specific Claims Tribunal (the “Tribunal”) separately, this submission will focus on the fifth specific issue listed in Section 41(1); “other matters related to the Act.”
  1. The mandate, structure, efficiency and effectiveness of the Tribunal are important and should be periodically considered and amended, as necessary. However, a review of these specific issues is premature at this time because actions taken by the Government of Canada since the Tribunal was established have undermined operation of the arbitral process underlying the Act and the Tribunal. Consequently, a fair and balanced review of the Tribunal’s mandate, structure, efficiency and effectiveness is not possible at this time.

The Purpose of the Specific Claims Tribunal

  1. The Specific Claims Tribunal Act was drafted, and the Tribunal was established, to improve the previous procedures for addressing specific claims.
  1. The Act which created the Tribunal was based on an Agreement between Minister Chuck Strahl and Phil Fontaine, National Chief of the Assembly of First Nations; the Political Agreement between the Minister of Indian Affairs and Northern Development and the National Chief of the Assembly of First Nations in Relation to Specific Claims Reform (the “Political Agreement”).
  1. The Political Agreement is an important foundational document that cannot be overlooked in this Five-Year Review, because it sets out the agreement between the parties and their intentions in establishing an arbitration process to address specific claims. The key comments in the Political Agreement that cannot be ignored in this review are as follows:
  1. The Preamble states, “… it is a legal and moral imperative of Canadians to address the Specific Land Claims of the First Nations in a just and timely manner.”
  1. The Preamble further states that “[t]he Minister and the National Chief celebrate the fact that we have developed together a draft Bill to address Specific Land Claims in a fair and final manner.”
  1. In the section entitled “Future Work,” the Political Agreement notes that “[i]n an effort to continue to seek out improvements … the Minister and the National Chief are committed to work together to inform ongoing policy work ….”
  1. In the section entitled “Five-Year Review,” the Political Agreement states that “[t]he Assembly of First Nations will participate in the five-year review as set out in the Specific Claims Tribunal legislation.”
  1. In the section entitled “Communications,” the Political Agreement states that, “[t]o the extent possible, the parties will work together to produce and communicate information/materials designed to explain the proposed legislation, best practices and other matters within its mandate.”
  1. Based on these clear and unequivocal statements, the Political Agreement executed the following:
  1. It committed the parties to establishing an arbitral process to address specific claims in a just, timely, fair and final manner.
  1. It confirmed that the Act and the Tribunal were the natural consequence of an agreement between the Minister and the National Chief.
  1. If committed the Minister and the National Chief to work together to on the future development of the Act and the Tribunal.
  1. In 2007, Minister Jim Prentice released the document entitled “Specific Claims: JUSTICE AT LAST” to set out the Department’s views on the new Specific Claims Act that would be introduced later that year. The Minister’s Message at the beginning of the document is particularly relevant. The Minister notes that “the First Nations’ frustration with the slow pace of progress in resolving their outstanding claims is understandable.” The Minister further noted that “the number of unsettled claims in the federal system has doubled since 1993 and there is a growing backlog of claims awaiting attention or action.” The Minister concluded on this point by saying

This is an unacceptable situation for First Nation people and for all Canadians – a situation that delays economic and social progress in our country, to the detriment of Canada as a whole.

Minister Prentice went on to state:

Recognizing that tinkering around the edges of the process is not enough, we are proposing major reforms that will fundamentally alter the way specific claims are handled. Our approach builds on the lessons learned from years of study and past consultations and responds to major concerns expressed by First Nations. The Specific Claims Action Plan will ensure impartiality and fairness, greater transparency, faster processing and better access to mediation. It is a critical first step in bringing the specific claims program into the 21st century to deal with the existing backlog once and for all.

Thus, the Minister announced a significant change in approach away from the courts and to a stand-alone process.

  1. Consequently, the purpose of the Act and the Specific Claims Tribunal is to give effect to the Political Agreement between the Minister and the National Chief to quickly, efficiently, effectively and finally resolve specific claims of First Nations outside the court process. Regardless of the authority conferred on the Tribunal in the Specific Claims Act, the Tribunal is clearly intended to be an alternative dispute resolution mechanism that is more like the arbitral procedures set out to resolve disputes in commercial contracts than a superior court. The distinction between an agreed arbitral procedure and an imposed court is important. Arbitral procedures are established by the parties to the agreement for the benefit of those parties and, like procedures before the Courts, arbitral procedures include a clear obligation to act in good faith throughout.

The Government’s Action since 2008

  1. Although the Tribunal was clearly established with the intention that it would impartially, fairly, quickly and efficiently resolve specific claims, the Tribunal’s ability to resolve specific claims has been undermined by subsequent Government decisions to take steps to delay resolution of specific claims. Since the Tribunal was established, the Government has consistently taken steps that have prevented First Nations from quickly and efficiently pursuing claims before the Tribunal, by delaying notice of its intention not to engage in negotiations with the First Nation, by refusing to consent to claims being filed with the Tribunal, by using its superior financial resources to delay arbitrations that proceed before the Tribunal, and by using its superior financial resources to file nuisance Applications for Judicial Review of Tribunal decisions. Examples are too numerous to mention; however, submissions by most First Nations to the AFN review panel clearly support these statements.
  1. In addition, the Government has not fully engaged the Assembly of First Nations in this Five Year Review. The Minister has indicated that it will accept the views of any interested parties, including the Assembly of First Nations, but this is not equivalent to cooperating to shape the questions and communication that are the basis for this Five‑Year Review. By denying the Assembly of First Nations the right to participate in the Five-Year Review process fully and from the beginning, the Government of Canada is apparently seeking to unilaterally amend the terms of the Political Agreement that gave rise to the Act and Tribunal in the first place.
  1. The Government of Canada is fully aware of the financial limitations and resource restrictions facing First Nations who are attempting to use the Tribunal to resolve specific claims. The Government of Canada must realize that the delay and unnecessary legal steps that it is imposing on the arbitral system through its actions make it more difficult, if not impossible, for many First Nations to pursue claims through the Tribunal process. Through its actions, the Government is clearly acting in bad faith, to the detriment of all Canadians.
  1. The mandate, structure, efficiency and effectiveness of the Specific Claims Tribunal should be periodically reviewed, and changes should be made to ensure that the Tribunal provides the intended impartial, fair, transparent, efficient and effective mediation process. As noted above, a review is imperative and timely, because the Government’s deliberately sharp practice taints the Tribunal’s mandate, structure, efficiency and effectiveness.
  1. Since it is impossible to compel parties to act in good faith through legislation, we recommend that the Specific Claims Tribunal Act be amended to limit the Government’s ability to act in bad faith.

Recommendations

  1. First, that a full complement of judges be appointed to the Tribunal in accordance with the Act. This means that funding to the various superior courts of the province be guaranteed so that the bench strength of judges taken away for work at the Tribunal can be replenished.
  1. Second, that the reference to “three years” in Sections 16(1)(a) and (d) be deleted and replaced with “six months.” This amendment would prevent unnecessary delays in filing specific claims with the Tribunal while giving the Minister sufficient opportunity to determine whether or not s/he intends to engage in negotiations to resolve the specific claim.
  1. Third, that Section 12(1) of the Act be amended to allow the Tribunal to award costs on a punitive scale in cases where proceedings are unnecessarily delayed by any means.
  1. Fourth, that the Tribunal have the authority to hear submissions on case funding prior to a Stage One submission to the Minister. This application to the Tribunal for funding would include, but not be limited to, research funding, hiring of experts and the projected cost of hearing a matter at the Tribunal.
  1. Fifth, that the specific claim be filed in the Tribunal simultaneously at the Stage One submission to the Minister, and that all negotiations take place under the supervisory authority of the Tribunal from the point of filing.
  1. Sixth, that Tribunal judges not involved with the actual Tribunal hearing be designated as case management judges able to mediate/arbitrate any and all issues leading up to either a settlement or hearing at the Tribunal.
  1. Seventh, that upon filing of a claim with the Tribunal by a First Nation, the Crown be given 90 days to provide full disclosure of any and all related documents and to file a complete list of those documents with the Tribunal for case management.
  1. Eighth, that funding for Tribunal operations and administration be separate, distinct and robust and not part of the money allocated for claim research or claim development.

Conclusion

  1. The Act and Tribunal were established so that specific claims could be addressed quickly, efficiently and effectively; this remains an important goal. That the First Nations have, and will have, specific claims is clear and has been admitted by the Government through the actions it has taken to establish the Act and Tribunal.
  1. That specific claims are legitimate is also clear; these claims are part of debts owed to the First Nations resulting from the treaty process undertaken between the Government and First Nations. Specific claims are not unfair burdens imposed on other Canadians, nor are they handouts given to First Nations. These are legitimate claims that First Nations are entitled to pursue through a process that must and will result in fair resolution.
  1. Resolution of specific claims is not only important to First Nations, but to all Canadians. Resolution of specific claims will address the potential liability of the Government of Canada to First Nations and result in the certainty required for the Government, First Nations, businesses and investors to move forward with the knowledge that underlying claims have been addressed and resolved, thus achieving the Minister’s objective of supporting “economic and social progress in our country” to the benefit of Canada as a whole.
  1. Therefore, we urge the Minister to consider the recommendations set out in this submission and to incorporate these recommendations into the Act.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED AT OTTAWA this 13th day of April, 2015.

“Wayne Garnons-Williams”

_________________________________

Wayne Garnons-Williams

Senior Lawyer & Principal Director

Garwill Law Professional Corporation

World Exchange Plaza

45 O’Connor Street, suite 1150

Ottawa Ontario, K1P 1A4

Phone: (613) 778-8685

E: wayne@garwilllaw.com

“Gordon LaFortune”

________________________________

Gordon LaFortune

Managing Partner

Woods, LaFortune LLP

614 Arc-en-Ciel Street

Ottawa, Ontario, K4A 3H9

Phone: (613) 884-9390

E: lafortune@wl-tradelaw.com