Integration of Indigenous Laws: The Current Process
While Indigenous Nations in BC continue to call for the joint development of a truly independent specific claims process [this can link to Ardith’s paper or On a Human Rights Foundation”], many Nations with claims in the current process want to know where in the current process they can push for the inclusion of their legal principles and protocols.
Research and Development of Your Claim
The way the current process is structured, First Nations must provide evidence that supports any allegation that Canada did something wrong, broke its own laws, or failed to fulfill the terms of an historic treaty. Usually this involves researchers going to government archives and departments to locate documents, including letters, legal instruments, maps, surveys, and reports to be used as evidence to support a specific claim.
In addition, you may include evidence provided by community knowledge keepers, storytellers, and/or Elders with knowledge of the issue you are pursuing in your research. Your legal team may suggest recording interviews, taking photographs, or otherwise documenting this evidence; however, if there are particular ways that community protocols say this knowledge should be shared, there may be ways to work with Canada to move beyond their standard formats for supplying evidence.
The Specific Claims Process Illustrated by Canada (Crown-Indigenous Relations and Northern Affairs)
[link to flowchart below]
CIRNAC’s flowchart illustrates the current specific claims process after a claim has been submitted to the Specific Claims Branch.
Assessment
The most troubling part of the current specific claims process for most people is the unilateral assessment of a First Nation’s claim against Canada by Canada (Specific Claims Branch staff and contract researchers on the recommendation of Department of Justice lawyers). The process is one-sided, with Canada in a clear conflict of interest, and is set up to be adversarial, with the onus is on the First Nation to prove their claim. The policy and Specific Claims Tribunal Act allow Canada three years from the point of a claim being filed to accept or reject a claim for negotiation.
Currently this three-year period is a “black hole” – where little to no communication or interaction occurs between your community and SCB. Indigenous Nations we have heard from have been clear that representatives from Canada must visit their communities to see the effects of land alienations, cut-offs, and resource losses continue to have on people in the community. This could form an important part of the claim review process.
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Negotiating Your Claim
After a claim is assessed by SCB and DOJ, Canada sends a letter to the Nation indicating whether it accepts the claim for negotiation. If a claim is accepted, Canada will provide terms by which it will communicate with the Nation and some information about how the Nation can enter into a negotiation process.
Some communities have indicated a wish to establish advisory bodies that include Indigenous Elders, knowledge keepers and law practitioners during this stage. The goal could be to ensure that negotiations proceed in a respectful, culturally appropriate way that leaves space for Indigenous laws to inform understandings of loss and possible forms of restitution.
At this stage, and during assessment, there is opportunity for representatives from Canada to develop a powerful, meaningful and Indigenous led understanding of how a community experiences the loss caused by historical failures by participating in cultural competency training that each Nation could tailor to reflect its own laws.
Settlement, Restitution and Implementation
Currently Canada is only providing restitution in the form of cash settlements. This has consistently been identified by Indigenous nations as problematic because it does not address the actual losses to communities.
If negotiations lead to settlement, Indigenous Laws might inform how a community defines the loss. For example, if a fishing station was failed to be set aside, and because of the loss of the fishing station that meant families within the community or the community as a whole then lost the ability to teach their upcoming generations about the fishery, that would have been a huge cultural loss that may have meant losses of knowledge about the laws that were tied to the fishery, or the language that was tied to the fishery. So, for Indigenous peoples, simply looking at the cost of the little piece of land that was the fishery itself won’t actually address what the actual cost was to the communities.
A community’s laws might also inform how restitution is determined. Some communities have indicated they want to go beyond cash settlements. The return of land (link to ILs), agreements that reflect the living nature of Indig dispute resolution.
Indigenous laws
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Implementation
[Needs to be drafted]
a couple of considerations:
Maybe Laws can inform how a community wants to implement, distribute, communicate the restitution is receives – we haven’t really talked about this but it actually came up a the first AFN engagement session
There have been suggestions that a joint body be set up if a community wants it – that includes community knowledge keepers to provide oversight of the implementation of a settlement
Adjudication
If a claim is rejected by Canada within the current process or if the process itself is not viewed as viable, Indigenous Nations may take their claim to court or to the Specific Claims Tribunal for binding adjudication. These processes have long been identified as too adversarial especially in the context of Canada’s public assertions that it wants to reconcile its relationship with Indigenous peoples.
[Needs to be drafted]
non adversarial
restorative