Specific Claims: The Alice in Wonderland Dimension of the Canadian Judicial System, Part 2

In the Specific Claims Branch process, of course, the Crown is obliged to disclose nothing whereas the claimant has to disclose virtually its whole case.

Mr. Justice Harry Slade,

of the Supreme Court of British Columbia

and Chair of the Specific Claims Tribunal Canada

in testimony before the Commons Committee on Aboriginal Affairs

13 March 15, 2011 at 051:3-14

Readers with particularly good memories may recall that in a late September issue of SLAW I introduced the topic that I call “the Alice in Wonderland Dimension …” by outlining some of the challenges of pursuing claims of Aboriginal rights, and particularly Aboriginal title. At the end of that piece I said that I would return to the matter to discuss “specific claims”.

Claims that are not in the “comprehensive claims” category are classed as “specific claims”. Specific claims are founded on a complaint of non-fulfillment of a treaty provision, unlike an item in a comprehensive claim that is based on practices that hark back to a time before British sovereignty. Since 2008, specific claims come under the Specific Claims Tribunal established under the Specific Claims Tribunal Act (S.C. 2008, c. 22).

A person could be forgiven for asking “What could be so complicated or so Wonderlandish about a claims process that has an act all of its own? I’m glad you asked. Most of the observations that follow are taken from the testimony of Mr. Justice Harry Slade, the chair of the Tribunal before the Commons Aboriginal Affairs Committee on March 3, 2011.

Under the Act, the Tribunal has jurisdiction over any claim less than $150 million. Justice Slade agreed with an MP who asked how the tribunal can be certain that a claim is for less than $150 million before the Tribunal accepts jurisdiction. That is only the first quirk (if there was no such word there is now). Claims over $150 million must either be negotiated or go to a superior court.

The second financial quirk is that the cost of administering the Tribunal (staff, office equipment, travel, rent, etc.) comes out of the same annual grant as the awards. When the annual grant is spent the Tribunal is apparently expected to go into a state of suspended animation. If the Tribunal were led to accept a complaint toward the end of the fiscal year, after almost all the costs of administration for the year have been met there may well be insufficient funds to make the award.

In addition to financial quirks, there are also a series of logical, ethical and legal quirks. Before I explore those quirks let me raise the BIG question, burdens of proof. It may seem obvious that the burden of proof of non-fulfillment of a treaty provision would be on the First Nation making the complaint. The other side of that coin is that the Crown, in its capacity as fiduciary for the First Nation’s assets should be providing regular reports to the First Nation, much as any other person with a “trust-like” responsibility is expected to report to the would-be beneficiary. The burden of proof may still be with the First Nation but it is the duty of the fiduciary to provide the most important body of evidence. (I should add that the Joint Committee [of both Houses of Parliament] on Statutory Instruments – the committee that examines the uses of delegated legislation to ensure that each order or regulation is properly pursuant to a statutory authority – cited the Indian Affairs Committee as one of the two most uncooperative Departments of Government.)

This would be no less true of unfulfilled provisions regarding land entitlement. The Government party has a gift of dragging out specific claims negotiations almost from one generation to the next. In Saskatchewan, the negotiations for unfulfilled land entitlements took several years to negotiate. First, since the treaties provided for a certain number of acres for each family of four there was a question of the date at which the population should be estimated. Then the government wants to negotiate the extent of the shortfall, that can take another several years.

At least until the Tribunal was established, when a claim was being negotiated it would be commonplace for the Government to change their negotiator with great frequency. The new negotiator then expected to start from the beginning. Given that this often stretched out the negotiations for years and years, the First Nation party might ask its researchers to continue to dig up historical material. The Government’s position, until the Tribunal was that the introduction of new evidence required that the negotiation process begin again.

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