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.

Would that other recidivists were entitled to tilt the process through which they are to go in much the same manner as the Crown. In Sparrow, the first case in which the Supreme Court addressed the meaning and significance of s.35(1) – the guarantee that “existing Aboriginal and treaty rights are … recognized and affirmed” – Chief Justice Dickson observed that the relationship between the Crown and a First Nation “is trust-like, rather than adversarial.” It is from this standard of fair dealing that Dickson, C.J. moved toward the standard that “the honour of the Crown is at stake.”

Coming back to Justice Slade’s testimony. The Government speaks of the Tribunal as a centre for Alternative Dispute Resolution. Several features could lead a person to wonder whether this does not hang on a novel definition of. ADR. Justice Slade pointed out that “the Act provides for court-like processes in the adjudication of claims.” One of Justice Slade’s earliest tasks was drafting rules of procedure.

The preamble to the Act, as described to the Committee by Slade J., speaks of

. . . resolving specific claims as a basis for reconciliation and a recognition will promote reconciliation between First Nations and the Crown and a recognition of the right of First Nations to choose and have access to a Tribunal to create conditions that are appropriate for resolving valid claims through negotiations.

“Reconciliation” is a term that has been much bandied about since it was introduced to this discourse by Chief Justice Dickson.

I hope to devote an upcoming column to its diverse and conflicting meanings. I have no doubt that Justice Slade and other justices appointed to the Tribunal genuinely wish to achieve these goals. My question is whether the terms of the Act will permit those goals to be fulfilled. Perhaps the biggest elephant in the room is the requirement that the Tribunal’s findings are, in effect, reports to Cabinet. The final decision on accepting or rejecting a claim remains, even in the era of the Tribunal, a fundamentally political decision.

The backlog of cases has led some to calculate the very long time that will be required for the Tribunal to make findings on all presently outstanding claims. Then there is the difference of style, at the very least, between the bureaucracy and the courts or those in need of things they or their ancestors have been promised. Justice Slade told the committee “… our rules are examined by officers of the Department of Justice to ensure their conformity with the provisions of the Statutory Instruments Act. … That’s proving to be a somewhat longer process than I’d anticipated and it has the potential to delay the opening.”

There is much more ground that I should like to cover. But I think it is time for a few closing observations.

First, we should ask whether the Tribunal, as it has been described by Justice Slade to a parliamentary committee, appears to have the independence of a judicial body? Or does his testimony raise questions, however gently, as to whether the Tribunal might be more “quasi” than it is judicial?

Secondly, I think the most important point is the question of accountability. John Duncan and Stephen Harper keep insisting that First Nations governments be accountable to Ottawa. Some of us think that the river flows the other way. Successive auditors general, as I’ve mentioned before, have observed that band councils or First Nations governments are required to do far more reporting than any local government is required to provide for continued funding.

More important, for understanding the field as a whole, and the “down-the-rabbit-hole” quality of federal Aboriginal Affairs, is that the fiduciary does not consider that it is accountable to the beneficiaries. In 1980, Warren Allmand, a Liberal MP from NDG and Bob Holmes, a PC MP from southwestern Ontario, jointly sponsored a motion mandating the Auditor General to audit the trust accounts of any band making a request to that effect. When the deputy minister appeared before the Indian Affairs Committee some months later he chastised the Committee for giving the Department a great deal of work to do. The trust accounts are not susceptible to an audit, apparently, because they lack opening balances.

When I refer to the Crown as a “recidivist”, I do so on the basis of its repeating much the inequitable behaviour decade after decade. There is certainly no evidence that the quality of the Crown’s conduct in its First Nations relations has improved much since the Sparrow decision laid out some standards in 1990. Whether the Specific Claims Tribunal will be able to goad the Government into better behaviour we will wait and see.

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