Specific Claims Reform
Specific claims are an area of longstanding dispute between Indigenous peoples and Canada. The cost of leaving specific claims unresolved is significant to both Canada and Indigenous communities.
The current specific claims process is plagued by systematic inequality. Canada is in a conflict of interest: it controls the system and is the decision-maker in claims against itself. Indigenous laws and ways of assessing and repairing harm are excluded. Overall, Canada’s focus is on mitigating risk and minimizing costs, rather than trying to heal broken relationships. BC Indigenous Nations are disproportionately affected by the inequity and ineffectiveness of the current specific claims process. Out of all claims in Canada, half are from BC.
BC Indigenous Nations and organizations have been at the forefront of claims reform for decades. Since its creation in 2013, the BC Specific Claims Working Group (BCSCWG) has advocated for the fair and just resolution of BC specific claims. The BCSCWG joins its voice with BC Indigenous Nations who have long called for a fully independent process — one that recognizes and integrates the laws of Indigenous claimant Nations. For more information, please see the website of the BC Specific Claims Working Group.
The AFN-Canada Joint Technical Working Group Process
In 2016, the Office of the Auditor General (OAG) released a scathing review of the specific claims process; it found that Canada had systematically mismanaged specific claims and created significant barriers for Indigenous claimants. In response, Canada created a Joint Technical Working Group (JTWG) with the Assembly of First Nations (AFN), plus technical experts, to address the OAG recommendations.
During a subsequent cross-Canada engagement on claims reform, Indigenous Nations stated clearly that the problems identified by the OAG had were symptoms of a broken system. They repeated a longstanding call for a fully independent specific claims process, one where Canada would not be responsible for assessing and overseeing claims against itself.
In 2017, the AFN passed Resolution 91/2017: Support for a fully Independent Specific Claims Process. This resolution called on the AFN to “jointly develop a fully independent specific claims process with the goal of achieving the just resolution of Canada’s outstanding lawful obligations through good faith negotiations.”
In 2019, the AFN then led engagement on an independent process, holding sessions in nine regions across Canada (and accepting written submissions). The AFN sought input from Indigenous Nations about what a fully independent specific claims process should look like.
The result of this process was a summary report of the information gathered, as well as a draft proposal based on the input from First Nations. The draft proposal incorporates four principles identified by chiefs-in-Assembly of the AFN:
The Honour of the Crown: the specific claims process must be consistent with the Honour of the Crown.
Independence of all Aspects of Claims Resolution: specifically including funding and oversight of claims and their resolution that must be handled independent of Canada.
Recognition of Indigenous Laws: The recognition of First Nations’ laws may impact the conduct of adjudication, dispute resolution and negotiation.
No Arbitrary Limits on Compensation: there will be no financial constraints, such as the $150-million cap on the jurisdiction of the Tribunal or the Commission –All claims regardless of size should have access.
A second phase of peer review was conducted by several Indigenous legal experts in 2021. In the summer of 2021, the AFN will publish the draft proposal and open it for public comment and review. Once published, the draft proposal will be made available here for public comment.
UBCIC Resolutions
The Union of BC Indigenous Chiefs has long advocated for a fully independent process to resolve specific claims in a fair, just, and timely way. Throughout the JTWG-led review, UBCIC Chiefs in Council have made clear that systemic reforms are needed: a new process must be fully independent and must integrate Indigenous laws. Resolutions on the Independent Specific Claims Process by the UBCIC Chiefs Council include:
2017-44: Creation of an Independent Process for Resolution of Specific Claims
2020-11: Full Recognition and Integration of Indigenous Laws in Specific Claims Processes
2021-03: Removal of $150-Million cap in New Independent Specific Claims Process