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A Communiqué from National Chief Phil Fontaine - Resolving Specific Claims: Renewed Approach Coming Soon

November 2007 - The Assembly of First Nations and the Government of Canada have been working together since June to develop a renewed approach to resolving First Nations specific land claims. The goal is to reform the specific claims resolution process to make it truly fair, fast and effective. A key objective is establishing an Independent Tribunal with authority to make binding decisions on claims, which will be available to First Nation claimants on a voluntary basis.

This work is long overdue. The current system is too bureaucratic and largely ineffective. The government controls every step of the process and is in a clear conflict of interest in deciding claims against itself. For proof of this, we just need to look at the massive backlog of claims, which currently stands at about 1,000.

Creating a fair and just approach to claims requires constructive and cooperative work between First Nations and Canada, work that is based on real engagement and real partnership.

We believe the recent joint work between Canada and the AFN to this point has been a success, and the results of these discussions – a renewed approach to claims resolution - will be made public as soon as the draft legislation is tabled in the House of Commons, perhaps as early as this month. For that reason, we are providing this update and overview so that you have an idea of what to expect.

The Process

The AFN received a mandate from Chiefs in Assembly to pursue this process on the basis that it is done in a spirit of real partnership and real engagement.

First Nations have guided this work from the very beginning. In fact, we drew on First Nations input and approaches that pre-date this initiative, such as the 1998 AFN-INAC Joint Task Force on Claims. This work reflected the views of First Nations and was endorsed by First Nations. We wanted to ensure our outcome matched or exceeded the high standard of fairness and independence established by the Joint Task Force.

For this new process, we established a Joint Task Force (JTF), supported by three joint technical working groups:

• a Legislative Working Group, focused on the actual wording and content of the new legislation;
• a Processing and Submission Working Group, looking at issues related to the preparation, submission and processing of claims;
• and a Transition and Implementation Working Group, to deal with the move from the current system to the new one.

Representatives of the AFN and the federal government (including the Prime Minister’s Office) have been meeting regularly. As National Chief, I am involved in this work; BC Regional Chief Shawn A-in-chut Atleo serves as Co-Chair of the JTF, supported by the Co-Chairs of the Chiefs Committee on Claims (Alberta Regional Chief Wilton Littlechild and Saskatchewan Regional Chief Lawrence Joseph). The AFN’s Chiefs Committee on Claims received regular updates on this work and their input has been invaluable.

The Outcomes

We are anticipating that as a result of our joint work, two key items will be made public very soon, and they are two parts of a whole:

• New legislation creating a specific claims tribunal
• A Political Agreement between the Minister of Indian Affairs and Northern Development and the National Chief of the AFN in Relation to Specific Claims reform.

i. The New Legislation

Getting a new system into place requires, in part, new legislation. This legislation is expected to be presented to First Nations and Parliamentarians some time this fall.

The legislation creates an Independent Tribunal. The Independent Tribunal will be a key feature of the new process in that the Government of Canada will no longer make the final decision on First Nations claims. The Independent Tribunal will be made up of judges. Upon the request of First Nation claimants, the Tribunal will make binding decisions on the validity and compensation of specific claims that have a value up to $150 million (which represents the majority of claims). Canada will establish dedicated funding for claims settlements of $250 million each year for ten years (funds not used in each year will be rolled over).

The AFN is advocating strongly for First Nations input into the selection process for Tribunal members as well as the development of the Tribunal’s rules of procedure. These discussions are ongoing, and for that reason the Joint Task Force has been discussing a Political Agreement as a companion to the legislation.

ii. The Political Agreement

The Political Agreement, which has not yet been finalized, represents a commitment by the AFN and the Government of Canada to deal with other essential matters that are related to reforming the specific claims system. These matters either fall outside the scope of the legislation or cannot be dealt with through legislation, for example, setting out a process that deals with claims above the $150 million cap and other key processing and transition issues.

The Legislative Working Group has effectively wrapped-up its legislative work. However, there are many other non-legislative issues that still need to be addressed, and this work will be carried out in one form or another for some time to come.

In addition, the AFN is strongly advocating for an ongoing oversight / liaison committee and a mandatory five-year review process. After five years of operation, the AFN, First Nations and the Government of Canada will be able to assess the effectiveness of the new approach and adjust it accordingly.

The AFN will continue to seek First Nations input and direction on these issues.

Next Steps

Once the draft legislation and companion Political Agreement are finalized and made public, the AFN will inform all First Nations about the details of the new approach.

The AFN has secured resources for Regional Dialogue Sessions on the new approach. In this case, we were fortunate that so much good work had already been done by our people that the challenges before us were crystal clear. The dialogue sessions in each region will provide you with an opportunity to review and fully understand the new legislation. The AFN will provide supporting materials for this work. In addition, each region will be able to develop its own approach for these sessions.

The AFN is also planning to review the progress made as a part of this process at its upcoming Special Chiefs Assembly which will be held in Ottawa on December 11-13, 2007.

If you wish, you will also have an opportunity to comment publicly on the new proposed legislation after the Bill is tabled in the House of Commons and during the Parliamentary process, which will likely include examination by a Parliamentary Committee. We sincerely hope that this legislation will be supportable because we believe it will represent a significant improvement from the present system.

Conclusion

We believe this joint process has demonstrated tangible results. It shows that the key to success is to ensure First Nations are directly engaged in solutions and the way forward. This says loudly and clearly to all Canadians that we can work together, that we must work together, and that by doing so we can make real, significant accomplishments. We believe this approach is a model that should be applied to the many other issues we need to address jointly with Canada.

Meegwetch!