Canada has committed itself to an ongoing project of reconciliation between Indigenous and non-Indigenous peoples. As part of this project, the Government of Canada has created special procedures for First Nations to advance "Specific Claims" to seek compensation for historical violations of established legal property rights. To help you understand the Specific Claims process, here are the answers to five frequently-asked questions.
1. What types of claims are eligible for the Specific Claims process?
Under section 14 of the Specific Claims Tribunal Act, the legislation that has governed the Specific Claims process since 2008, only certain types of property-related claims qualify for the Specific Claims process:
- A failure to fulfil a legal obligation of the Crown to provide lands or other assets under a treaty or another agreement between the First Nation and the Crown.
- A breach of a legal obligation of the Crown under the Indian Act or any other legislation pertaining to "Indians" or "lands reserved for Indians" (the language used in the Indian Act) of Canada or of a colony of Great Britain of which at least some portion now forms part of Canada.
- A breach of a legal obligation arising from the Crown'sprovision or non-provision of reserve lands, including unilateral undertakings that give rise to a fiduciary obligation at law, or its administration of reserve lands, Indian moneys or other assets of the First Nation.
- An illegal lease or disposition by the Crownof reserve lands.
- A failure to provide adequate compensation for reserve lands taken or damaged by the Crown or any of its agencies under legal authority.
- Fraud by employees or agents of the Crown in connection with the acquisition, leasing or disposition of reserve lands.
Section 15 of the Specific Claims Tribunal Act sets out certain claims that do not qualify for the Specific Claims process. Importantly, the process is intended for historical claims; claims based on events that occurred within the past 15 years do not qualify.
2. What is the Specific Claims process?
The Specific Claims Tribunal Act governs the Specific Claims process. The three key elements of the process are:
Filing. First Nations must first file the Specific Claim with the Specific Claims Branch of Crown-Indigenous Relations and Northern Affairs Canada ("Canada"). Canada will have up to six months to decide whether a Claim meets the "minimum standard" for consideration. Canada will then have a further three years to research and assess the Claim and decide whether to refer it to negotiation.
Negotiation. The Specific Claims process prioritizes negotiated settlement of Claims. If Canada decides to refer the claim to negotiation, it will have a further three years to negotiate with the First Nation a resolution to the Claim with the First Nation. If negotiations are not successful, the First Nation will again have the opportunity to refer the claim to the Tribunal for a binding resolution.
Binding Resolution. The Specific Claims Tribunal Act establishes a specialized tribunal that is authorized to make binding decisions regarding compensation for First Nations based on qualifying Specific Claims. If, after three years, either:
- Canada has not referred the Claim to negotiation, or
- Canada referred the claim to negotiation but negotiations were unsuccessful,
the First Nation will have the option to submit its Claim to the Tribunal for a binding resolution.
Notably, Canada and the First Nation can always agree to submit the Specific Claim to the Tribunal for binding resolution before the expiry of either of these three-year periods. An example is if it appears that a negotiated resolution is unlikely.
4. How are Specific Claims funded?
There are no fees associated with filing a Specific Claim with Canada. However, there are significant costs associated with conducting the historical research into a Specific Claim necessary to support its filing with Canada, preparing legal submissions, negotiating a Specific Claim, and if necessary, arguing the Specific Claim before the Tribunal. In many cases, these costs can be prohibitive and can prevent First Nations from submitting valid Specific Claims under the established Specific Claims process.
Recognizing this, Canada has made funding available to First Nations for the research, development and submission of Specific Claims, the negotiation of Specific Claims, and the hearing of Specific Claims at the Specific Claims Tribunal. A First Nation may qualify for some or all of these funding programs, depending on the stage of the Specific Claims Process:
Research, Development & Submission. The Specific Claims Research, Development and Submission Program provides financial assistance to First Nations for researching, developing, and submitting their claims under the Specific Claims Policy and Process Guide. The Program's objective is to support First Nations in advancing reconciliation. Budget 2019 committed an additional $8M per year over five years, on top of the ongoing $4M per year. Recently, the Government of Canada announced a two-year extension of this additional funding, bringing the total budget to $12M for fiscal years 2024-2025 and 2025-2026. Eligible applicants include First Nations entities, bands, and Indigenous representative organizations. The deadline for submitting proposals for the Specific Claims Research, Development and Submission Program is January 31 of each fiscal year.
Negotiation. The Government of Canada works with First Nations to resolve outstanding Specific Claims through negotiated settlements, which are preferred over court or Tribunal resolutions. The Specific Claims Policy outlines the principles and process for these negotiations. The objective of negotiation loans is to assist First Nations with the reasonable costs of the negotiation and settlement process once Canada has formally accepted for negotiation a validated Claim. Eligible expenditures for negotiation and ratification costs include legal fees, financial advisors, travel costs, honoraria for chief and council, community meeting costs, and ratification-related activities. The maximum amount for loan funding in this category is $200,000 per Claim per fiscal year. Additionally, there are provisions for preliminary negotiation costs, basic funding, studies and reports, and ratification costs.
Claims Before the Specific Claims Tribunal. Funding is available for First Nations that have filed a Specific Claim with the Specific Claims Tribunal of Canada. Crown-Indigenous Relations and Northern Affairs Canada provides this funding to support First Nations in their pursuit of justice through the Tribunal. The amount of funding available is determined annually by Parliament, which means there is no guarantee that funds will be available for all requests or all eligible expenses each year.
To receive funding, before incurring any cost a First Nation must have its requests approved by Crown-Indigenous Relations and Northern Affairs Canada. Eligibility for funding includes situations where a Claim has not been accepted for negotiation by the Government of Canada, if the government fails to respond within three years, or if negotiations do not result in a final settlement after three years.
5. How long do Specific Claims take to resolve?
The length of time for resolving a Specific Claim can vary widely based on several factors, including the complexity of the Claim, the date on which the qualifying Claim is submitted, and the stage of the process at which the Claim is resolved. According to Canada, the "vast majority" of claims are resolved at the negotiations phase. However, a Specific Claim is not eligible for a negotiated resolution until it has been referred by Canada for negotiation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
