Specific Claims Tribunal – Significant Changes without Statutory Consultation.
By Wayne Garnons-Williams
Principal Director and Senior Lawyer
Garwill Law Professional Corporation
A picture of the culturally respectful courtroom of the Specific Claims Tribunal of Canada in Ottawa.
The actions by the Harper government against the Specific Claims Tribunal are arguably unconstitutional, and amount to a breach of judicial independence.
The recent gutting of the administrative authority of the Specific Claims Tribunal (SCT), along with the forced merger and physical move of the SCT to the Administration Tribunal Support Services Canada department (ATSSC), is a breach of constitutional convention on the arm’s length relationship expected between the executive and judicial branches of government. This is an attempt, by the Harper government, to reduce an independent Tribunal clothed with the powers of a Superior Court of law into an ineffectual, poorly supplied and overloaded decision making body that is mired in bureaucracy and controlled by a mega administrative department.
The SCT is not like any other Tribunal of Canada – it is uniquely clothed in the powers and privileges of a superior court of record. According to the Specific Claims Tribunal Act, the SCT’s administrative independence is part and parcel of its judicial independence:
- (1) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all the powers, rights and privileges that are vested in a superior court of record and may
- (a) determine any questions of law or fact in relation to any matter within its jurisdiction under this Act;
- (b) receive and accept any evidence, including oral history, and other information, whether on oath or by affidavit or otherwise, that it sees fit, whether or not that evidence or information is or would be admissible in a court of law, unless it would be inadmissible in a court by reason of any privilege under the law of evidence;
- (c) take into consideration cultural diversity in developing and applying its rules of practice and procedure; and
- (d) award costs in accordance with its rules of practice and procedure.
(emphasis added)
The arbitrary, wholesale deletion of section 10 of the Act concerning the existence of the SCT Registry, along with the removal of a key phrase (found in section 12 of the Act) which states that the judiciary controls the “duties of its staff” through the SCT Judicial Committee, are examples of the subtle and calculating changes made recently by the Harper government to cripple the SCT.
Prior to its removal, Section 10 of the SCT Act stated:
- (1) There shall be a Registry of the Tribunal consisting of an office in the National Capital Region described in the schedule to the National Capital Act.
(2) The registrar and any staff that is required for the proper conduct of the work of the Tribunal shall be appointed in accordance with the Public Service Employment Act.
(3) The registrar is responsible for the management of the Tribunal’s administrative affairs and the duties of the staff of the Tribunal.
(4) The staff of the Tribunal shall be organized and the offices shall be operated in any manner that may be provided by the rules referred to in subsection 12(1).
The Harper government is attempting to gut the independent administration of the SCT by transferring all of its judges’ power to manage their own court to the ATSSC, a mega-department assigned to manage regular federal tribunals.
In the fall of 2014, the Chair of the SCT, Justice Harry Slade, tabled his fifth consecutive Annual Report, in which he warned the government of the significant erosion of judicial independence that would result from the arbitrary actions of the federal government. The Harper government, in what appears to be direct retaliation, issued the equivalent of an eviction notice to the SCT soon thereafter. The SCT offices are to be vacated and merged with the new mega-department for ordinary federal tribunals by March 2015.
The current Head Office of Specific Claims Tribunal in Ottawa is an architectural marvel, with a Courtroom that blends Aboriginal culture and design with an outstanding example of the Tribunal’s mandate for cultural accommodation, found in section 13(1)(c) of the SCT Act. The SCT Courtroom is, in short, an irreplaceable part of a reflection of our modern Canadian/Indigenous heritage.
A virtual tour of the SCT Courtroom can be found at this YouTube site:
https://www.youtube.com/watch?v=WULxMaY69d4
The Harper government’s actions of the removal of the administrative powers from the judiciary and destruction of the SCT Courtroom and premises runs contrary to section 41 of the SCT Act, which requires the government to undertake a review of the mandate and structure of the SCT and in so doing, to provide First Nations with the opportunity to make representations regarding the future of the SCT and its history-making Courtroom and facilities.
Section 41 was originally written into the SCT Act as sign of respect of Indigenous peoples which is expressed through the statutory requirement of consultation with Aboriginal people with any possible changes that could affect the SCT – a decision making body created solely to determine possible treaty breaches and provide compensation for these treaty breaches. As such, it is a key element of justice for First Nations and Indigenous peoples of Canada.
A Brief History of the Establishment of the Specific Claims Tribunal
There have been numerous calls for an independent body to adjudicate specific claims. In 1947, the Special Joint Committee of the Senate and House of Commons recommended
“That a Commission … be set up with the least possible delay to enquire into the terms of the Indian treaties …and to appraise and settle in a just and equitable manner any claims to grievances arising thereunder.”
– In 1961, this recommendation was re-stated by another Special Joint Committee of the Senate and House of Commons.
– In 1962, draft legislation was approved by Prime Minister Diefenbaker’s cabinet, although the legislation was never introduced because of the 1963 election call.
– In 1963, Prime Minister Lester B. Pearson introduced Bill C-130 ,entitled Indian Claims Act, but he then withdrew the Bill, to allow for First Nation consultation.
– In 1965, the same legislation was reintroduced by Prime Minister Pearson’s government, although it, too, died on the order paper, due to the 1965 election.
– Following the Supreme Court of Canada case of Calder, in 1973, the government of the day announced a policy for addressing both specific and comprehensive claims. At that time the total number of specific claims on record was 1308.
– In 1979, an unpublished government of Canada report recommended the creation of an independent body that would “for all purposes be a specialized court.”
– In 1982, the government explained their policy, with a publication entitled Outstanding Business: A Native Claims Policy, Specific Claims.
– In 1983, the “Penner Report” called for a quasi-judicial court for managing failed negotiations and for neutral facilitation of negotiated settlements.
– In 1990, a House of Commons Standing Committee reiterated the need for an independent claims body in a report entitled “Unfinished Business: An Agenda for All Canadians in the 1990s.”
– That same year a joint Canada-First Nations working group looked at creating a permanent, legislative entity with tribunal-like powers.
– In 1991, the Indian Specific Claims Commission was established as a temporary, independent body to review specific claims rejected by the government and to issue to the government non-binding recommendations. Policy had shifted to allow, for the first time, consideration of pre-confederation claims.
– In 1996, the Royal Commission on Aboriginal Peoples recommended an independent lands and treaties tribunal to replace the Indian Specific Claims Commission.
– In 1998, a Joint Task Force Report on the Specific Claims recommended the establishment of a tribunal to facilitate negotiations.
– That same year, the Canadian Bar Association recommended “the creation of a legislative-based Specific Claims Tribunal with clearly defined mandate to adjudicate the resolution of specific claims.”
– In 2003, Bill C-6, The Specific Claims Resolution Act, received Royal Assent, but was left un-enacted, after it was rejected as inadequate by First Nations.
– In 2006, the Standing Senate Committee on Aboriginal Peoples conducted a thorough review of the specific claims process and issued its recommendations in the report entitled Negotiations or Confrontations: It’s Canada’s Choice. In this report, they focused on the lack of independent adjudication available and, among other things, and recommended that the government create an independent claims court with true decision making powers.
– In 2007, the Government of Canada released a new policy initiative entitled “Specific Claims: Justice At Last.” A key element to that plan was the creation of an independent tribunal.
– That summer, Canada and the Assembly of First Nations worked together on a Joint Task Force, to shape the necessary legislation. By the fall of 2007, the result of their work was tabled in the House of Commons.
– In June 2008, the Specific Claims Tribunal Act received Royal Assent.
– On October 16, 2008, the Specific Claims Tribunal Act came into force and created an independent tribunal to adjudicate specific claims under treaty. There were approximately 765 specific claims still outstanding in 2008, and some claims of those claims were over 90 years old.
As of 2015, however, Canada’s single achievement toward final settlement of its injustices is a judicial body that is being starved. Today the Specific Claims Tribunal has only what it started out with in 2008: one full-time and two part-time judges, while the Harper government has refused to appoint the full roster of judges that were supposed to sit on the Tribunal. Under the Act, the federal government is supposed to have appointed to the SCT up to 18 part-time provincial superior court judges, or six full-time and two part-time judges.
A clear 85% of the specific claims that have reached the negotiations phase with the federal government of Canada have ended up as rejections to settlement, allowing these claimants to file their cases with the Specific Claims Tribunal. There are in total currently more than 400 potential specific claims cases coming up.
Prior to the drastic action taken by the Harper government in gutting the administration and forcing the Specific Claims Tribunal out of its courtroom and offices, the judges of the SCT had proven that the Tribunal can fulfill the task for which it was created. Notwithstanding its lack of sufficient judges or budget, the SCT has since its inception resolved specific claims under treaty both fairly and adequately. As an independent Tribunal clothed in the powers and privileges of a Court of Superior Record, the legitimacy of the SCT has been proved.
A true pessimist could argue that it is the Specific Claims Tribunal’s very success in rendering fair and just compensation decisions that is motivating the Harper government to undercut the SCT. Instead of killing the SCT outright, the Harper Government is gutting it of any ability to render fair and just compensation decisions in a timely manner. Under current working conditions, SCT Chair Mr. Justice Slade estimates that it will take over two years just to address the Tribunal’s current case load of 61 cases.
This stripping away of judicial independence and authority allows the Harper government to minimize the effectiveness of the Tribunal and to scare away any potential additional Superior Court Judges who might have been willing to take on an assignment at the SCT.
The Harper government may cite cost savings, budget re-profiling, and other economic motives, but it appears to have committed a serious breach of the constitutional convention of judicial independence, as well as a failure to follow the statutory obligations found in section 41 of the SCT Act. The Harper government is failing to provide First Nations with the statutory right to make representations on their own behalf prior to the implementation of any changes.
In significantly altering the Specific Claims Tribunal without providing consultation as required under section 41 of the Act, the Harper government has effectively issued a warning to all First Nations contemplating a Treaty process with Canada: should there be any dispute under a federal treaty, signatories should expect further broken promises with regards to timely and fair determination and/or compensation.