Evidence of meeting #4 for Indigenous and Northern Affairs in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was tribunal.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Anik Dupont  Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development
Kevin McNeil  Senior Counsel, Specific Claims Section, Department of Justice
Kathy Green  Director, Research and Policy Directorate, Specific Claims Branch, Department of Indian Affairs and Northern Development

11:10 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

Thank you, Mr. Chair, and good morning.

As you mentioned, I am accompanied this morning by my colleagues Kathy Green, who is our director of research and policy, and Mr. Kevin McNeil, who is senior counsel, specific claims legal services, at the Department of Justice.

I would like to thank the committee for this opportunity to speak about the work that has been done, and that is being done, to address first nations' specific claims.

Since June 2007, the specific claims process has undergone a fundamental reform, the results of which have yielded significant results: an independent adjudicative body has been established; the backlog of claims and assessment phase of the process will have been addressed in a few weeks; 68 claims, valued at more than $1 billion, have been resolved through negotiated agreements, and 247 claims are currently in negotiation.

But let me start at the beginning.

A specific claim is a claim made by first nations against the federal government relating to the non-fulfilment of an historic treaty or the mismanagement of first nations land or other assets.

The specific claims policy, which was first published in 1982, establishes an alternative dispute resolution option that first nations may engage on a voluntary basis to resolve these grievances. The primary objective of the policy is to discharge outstanding lawful obligations that arise from such claims through negotiated settlements.

In 2006, the final report of the Standing Senate Committee on Aboriginal Peoples included a special study on the federal specific claims process. The report, entitled Negotiation or Confrontation: It's Canada's Choice, concluded that the specific claims process was defective and that first nations perceived a conflict of interest given that the government both judges and compensates claims made against it.

The committee recommended that an independent body be established with the authority to resolve specific claims, that a dedicated fund be established for the payment of specific claims settlements, and internal government procedures for the assessment and negotiation of claims be improved.

In response to the Senate Standing Committee Report, in June 2007, the Prime Minister announced “Justice at Last: Specific Claims Action Plan” aimed at reforming the specific claims process.

The action plan was built on four independent pillars: impartiality and fairness, faster processing, greater transparency, and better access to mediation. All four pillars have been implemented, and the success of the process reform even now is clearly evident.

The cornerstone of “Justice at Last” is the Specific Claims Tribunal, an independent adjudicative body that was established in 2008 pursuant to the Specific Claims Tribunal Act, which legislation was developed jointly with the Assembly of First Nations. The tribunal has the authority to make binding decisions in respect of the validity of a claim and to award compensation, to a maximum of $150 million per claim. The tribunal became operational on June 1, 2011; five claims are currently filed at the tribunal.

A particularly troubling criticism of the specific claims process was the prolonged period of time necessary to assess and negotiate claims. Prior to “Justice at Last” the average time taken to settle a claim was over 13 years. Consequently, a backlog of hundreds of unresolved claims had accumulated by 2007.

The Specific Claims Tribunal Act provides for a three-year timeframe for the assessment and negotiation of the claims. If either timeframe is not met, a first nation may refer its claim to the tribunal for adjudication.

More efficient internal processes have been implemented to ensure a timely response to claims submissions and greater discipline in the processing of claims. Specifically, the research and assessment phase of the process has been improved by adopting a minimum standard for claims, to effectively communicate requirements and avoid delays associated with seeking clarification and additional information from first nations.

Special efforts have been made to settle small value claims, or claims under $3 million—which represent nearly half of all backlog claims and new claims—more quickly. The valuation of these claims is now completed earlier to assist in facilitating expedited settlements.

Changes to improve negotiation and settlement processes have also been implemented including earlier financial mandating for negotiations; increased human and financial resources; clarification of roles; the “bundling” of claims; and ongoing monitoring of negotiations to reduce inactive tables.

When “Justice at Last” was announced there were approximately 630 claims in assessment and 123 claims in negotiations. I'm proud to announce to you today that the assessment backlog has been completely resolved, and since 2007, 68 claims valued at $1.1 billion have been settled through the negotiated agreements.

First nations had expressed concerns that this slow pace of resolution of specific claims reflected a lack of budgetary capacity to pay out compensation once a settlement had been reached. In response to these concerns, dedicated funding of $250 million per year for 10 years is available to compensate first nations achieving settlement agreements through negotiations with Canada and to satisfy awards made by the Specific Claims Tribunal. Additionally, the Minister of Aboriginal Affairs and Northern Development can access the fiscal framework, if it is necessary, to draw down on these resources in excess of the annual forecasted amount.

Mediation is an excellent and cost-effective tool, and it is recognized that this tool should be used more often in stalled claim negotiations.

A mediation services unit has been established the function of which is to ensure the availability of independent mediation services as jointly requested by Canada and first nations during the negotiation of claim settlements. The mediation services unit is establishing four regionally-based rosters of independent mediators from which mediators may be engaged through a standing offer. The rosters are being developed through a request for proposal process advertised through the government’s public electronic tendering service.

The evaluation, performance measurement, and review branch of Aboriginal Affairs and Northern Development Canada undertook a formative evaluation of the action plan earlier this year. The purpose of the evaluation was to obtain an independent and neutral perspective on how well the action plan is achieving its expected results, supporting the achievements of departmental objectives with respect to the resolution of specific claims, and identifying opportunities to improve the design and implementation of the action plan. The evaluation report is available on the departmental website.

The independent evaluators found that the four pillars of the action plan represent the most appropriate and efficient process to achieve the action plan's expected result.

The four pillars of the action plan appear to be appropriate to address what were seen as shortcomings of the process.

The dedicated fund combined with the reporting measures that the specific claims branch has established have increased transparency in relation to financial resources invested by the federal government to settle these claims.

The revised internal procedures are expediting the claim settlement process and some efforts have been made to tailor the process to the nature of the claims.

Changes resulting from the action plan could be expected to enhance the ability of the federal government and first nations to settle specific claims, which in turn could promote greater social and economic development.

What is clear from these findings is that Canada’s action plan is working; it is achieving results and first nations are benefiting.

In the coming months an internal audit of specific claims negotiation costs will take place the next fiscal year, as well as a summative evaluation of the “Justice at Last” specific claims action plan. The Minister of Aboriginal Affairs and Northern Development will be making a complete report to cabinet on the implementation of the action plan.

Finally, a legislative review of the Specific Claims Tribunal Act will be undertaken in 2013-14 to assist the government in gauging the success of the legislation and the tribunal.

Thank you very much for this time. I welcome the opportunity to answer any and all of your questions.

11:15 a.m.

Conservative

The Chair Conservative Chris Warkentin

Thank you, Ms. Dupont.

Did Ms. Green or Mr. McNeil have presentations as well? No. Okay.

Ms. Duncan, we will begin with you.

Committee members, when you are looking to be recognized on the speaking list, please make sure our clerk sees your indication of the desire to be on the list and we'll make sure you get on it.

Ms. Duncan, the floor is yours for seven minutes.

11:20 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

Thanks, Mr. Chair.

Thank you for appearing on short notice, and thank you for the briefing you provided to Monsieur Genest-Jourdain and me this summer.

I have a couple of questions. For clarification, as you are aware, we raised the questions with you this summer when I received a number of concerns from first nations that were in this process. They felt there was now a policy of the government to end the negotiations on the specific claims and in fact force the nations to have to go to the specific claims tribunals. I wonder if you could clarify for the committee what is the current policy and position of the government on the specific claims. The three-year time period, of course, was imposed, as well as the creation of the specific claims tribunal, as I understand, to ensure transparency in this claims process.

Secondly, the commission was created to spur the government. There was a concern that the government had been dragging its heels on these claims, so the first nations were given standing to refer a case to the tribunal if within the three-year time period they did not feel their claim was resolved. The concern that's been raised with me by a number of first nations is that the government is now interpreting that legislation to be that at the end of three years, if you don't have a deal, you go to the commission. I'm wondering if you could clarify the current policy and interpretation of that statute by the Government of Canada.

11:20 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

Thank you.

The three-year timeframe, as I mentioned, was established to mirror what the Specific Claims Tribunal Act sets out, which is a faster processing of specific claims. So at the negotiation table we are governing ourselves to try to reach a settlement with the first nations within that three-year timeframe.

The discussion over the summer, which came out, was that at the end of the three years we walk away from the table. The choice for the first nations rests with them if they wish to bring their claims to the tribunal. We just try to get them resolved within the three-year timeframe.

11:20 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

If I could follow up, you're saying that the view of the government is that at the end of the three years you walk away from the table and it's the first nations' opportunity to go to the commission?

11:20 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

No, it's actually to the contrary. Maybe I didn't express myself properly.

When we sit down at the negotiating table we work within the three-year timeframe to achieve a settlement by three years. If we feel during the process that we are in a situation—every table is managed differently—where we're ready to present the first nation with an offer, then we do so. Some of the negotiations may carry on beyond the three years because we may not have the information we need to conclude the settlement. We do not walk away from the table, but our work and the operational framework that we operate under is made so that we reach a settlement by year three.

11:20 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

So that's your interpretation of the legislation.

A number of more recent concerns have been raised with me. As much as the first nations appreciate the legislation and the formation of the commission, which is now in effect, concerns are being raised about the limited resources available to the commission. I wonder if any of you could speak to that.

In tribunals such as energy boards and so forth, they usually have a large staff of experts, lawyers, and so forth. I wonder if you could elaborate more on what kinds of resources are available full time to the commission in hearing and reviewing the cases that come before them.

11:20 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

I assume you're speaking about the tribunal. The tribunal is a department on its own. It was created so that it has its own resources and it has structured itself accordingly. I can't make any comment or analysis as to how the resources are applied or organized within. You'd have to ask it to explain how it is set up and if the level of resourcing is adequate or not.

11:25 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

But did the department not allot the budget to the commission, or is the commission given its money and it can assign it as it sees fit?

11:25 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

The tribunal is totally independent from the department and is set up under the FAA as a department.

11:25 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

Mr. Chair, I'm wondering, maybe we were remiss in our request, but I think it would be very useful for us to hear from the commission itself if these questions can't be asked.

My understanding is that there is a limit on the specific claims process and the claims that can go before the commission. That is $150 million per claim. Is that correct? Any claim over that simply goes before the cabinet, and it's not necessarily...or it isn't a transparent process. Are there any discussions within the department about coming up with a parallel kind of process for claims over $150 million?

11:25 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

The process for claims over $150 million is a cabinet process.

11:25 a.m.

Conservative

The Chair Conservative Chris Warkentin

You have one minute left.

11:25 a.m.

NDP

Linda Duncan NDP Edmonton Strathcona, AB

I'm interested in this mediation unit. Is the mediation unit only now being set up?

11:25 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

The mediation unit has been created for some time. The process was to establish a roster of independent mediators, so it's simply the whole mechanical process of doing that, developing the criteria and posting the call for submissions.

That's now being finalized. It takes some time to go through that process.

But first nations still have access to mediators, even though the rosters are not quite complete. Any table that required mediation was able to obtain it. We have some of the tables that have mediators at the same time as this process is being finalized.

11:25 a.m.

Conservative

The Chair Conservative Chris Warkentin

Thank you.

Mr. Payne, for seven minutes.

October 4th, 2011 / 11:25 a.m.

Conservative

LaVar Payne Conservative Medicine Hat, AB

Thank you, Mr. Chair.

My question is to the witnesses, through you, Mr. Chair. First of all, I would like to thank the witnesses for attending today. It's a really important opportunity for us, in particular our team here on this side, to appreciate what is going on.

We've actually sort of narrowed things down to four themes, and I want to touch on those four themes that I think my colleagues and I will address in this process. One is the framework, the second is the tabling of the offer, and then on the negotiations and what happens after that.

My first question is the following. Why has Canada adopted the three-year operational framework for negotiation of specific claim agreements?

11:25 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

I guess the reason why we adopted it was that we were mirroring our process with that of the act. The act says that if after three years the minister has not responded as to whether he accepts or not the claims for negotiation, or if we haven't reached an agreement by year three, it allows the first nation to go to the tribunal.

Our goal is, and always has been, the route of negotiations and settlements, so we want to position the negotiations in a way in which we achieve settlement or make as much progress as we can toward settlement that will allow us to get to a negotiated settlement, rather than having the first nation leave the table and go to the tribunal.

11:25 a.m.

Conservative

LaVar Payne Conservative Medicine Hat, AB

It is my understanding, of course, that the first nations asked for a faster process to resolve those, and that was announced in our action plan in 2007. That was certainly to speed up the claims process in order to provide justice for these first nations claimants, and certainly for all Canadians.

Moving on, then, I guess one of the other things I wanted to touch on is the Specific Claims Tribunal Act of October 2008 that was developed jointly with the Assembly of First Nations. Is that correct?

11:25 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

That is correct.

11:25 a.m.

Conservative

LaVar Payne Conservative Medicine Hat, AB

The act does include three-year timeframes for negotiating. I think that's what you stated earlier.

11:25 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

Yes, that is correct.

11:25 a.m.

Conservative

LaVar Payne Conservative Medicine Hat, AB

Thank you.

I guess in this whole process we want to make sure that, first of all, the first nations were aware of the changes to the specific claims process. Could you expound on what happened in that process?

11:30 a.m.

Director General, Specific Claims Branch, Department of Indian Affairs and Northern Development

Anik Dupont

There were several key communications with the first nations with regard to the new process or the action plan. Of course, there was a mass communications announcement that was made with the action plan, and when the legislation came into force we also sent letters to each and every first nation that had claims both under assessment and in the negotiation process, to advise them of the coming into force of the act, as well as to send a copy of the act and additional information to assist them to understand what this meant for them.

11:30 a.m.

Conservative

LaVar Payne Conservative Medicine Hat, AB

Okay. I just want to make sure I understand it. The new approach to the claims was announced by the Prime Minister in June of 2007—