Thank you, Mr. Chair, and good morning.
As you mentioned, I am accompanied this morning by my colleagues Kathy Green, who is our director of research and policy, and Mr. Kevin McNeil, who is senior counsel, specific claims legal services, at the Department of Justice.
I would like to thank the committee for this opportunity to speak about the work that has been done, and that is being done, to address first nations' specific claims.
Since June 2007, the specific claims process has undergone a fundamental reform, the results of which have yielded significant results: an independent adjudicative body has been established; the backlog of claims and assessment phase of the process will have been addressed in a few weeks; 68 claims, valued at more than $1 billion, have been resolved through negotiated agreements, and 247 claims are currently in negotiation.
But let me start at the beginning.
A specific claim is a claim made by first nations against the federal government relating to the non-fulfilment of an historic treaty or the mismanagement of first nations land or other assets.
The specific claims policy, which was first published in 1982, establishes an alternative dispute resolution option that first nations may engage on a voluntary basis to resolve these grievances. The primary objective of the policy is to discharge outstanding lawful obligations that arise from such claims through negotiated settlements.
In 2006, the final report of the Standing Senate Committee on Aboriginal Peoples included a special study on the federal specific claims process. The report, entitled Negotiation or Confrontation: It's Canada's Choice, concluded that the specific claims process was defective and that first nations perceived a conflict of interest given that the government both judges and compensates claims made against it.
The committee recommended that an independent body be established with the authority to resolve specific claims, that a dedicated fund be established for the payment of specific claims settlements, and internal government procedures for the assessment and negotiation of claims be improved.
In response to the Senate Standing Committee Report, in June 2007, the announced “Justice at Last: Specific Claims Action Plan” aimed at reforming the specific claims process.
The action plan was built on four independent pillars: impartiality and fairness, faster processing, greater transparency, and better access to mediation. All four pillars have been implemented, and the success of the process reform even now is clearly evident.
The cornerstone of “Justice at Last” is the Specific Claims Tribunal, an independent adjudicative body that was established in 2008 pursuant to the Specific Claims Tribunal Act, which legislation was developed jointly with the Assembly of First Nations. The tribunal has the authority to make binding decisions in respect of the validity of a claim and to award compensation, to a maximum of $150 million per claim. The tribunal became operational on June 1, 2011; five claims are currently filed at the tribunal.
A particularly troubling criticism of the specific claims process was the prolonged period of time necessary to assess and negotiate claims. Prior to “Justice at Last” the average time taken to settle a claim was over 13 years. Consequently, a backlog of hundreds of unresolved claims had accumulated by 2007.
The Specific Claims Tribunal Act provides for a three-year timeframe for the assessment and negotiation of the claims. If either timeframe is not met, a first nation may refer its claim to the tribunal for adjudication.
More efficient internal processes have been implemented to ensure a timely response to claims submissions and greater discipline in the processing of claims. Specifically, the research and assessment phase of the process has been improved by adopting a minimum standard for claims, to effectively communicate requirements and avoid delays associated with seeking clarification and additional information from first nations.
Special efforts have been made to settle small value claims, or claims under $3 million—which represent nearly half of all backlog claims and new claims—more quickly. The valuation of these claims is now completed earlier to assist in facilitating expedited settlements.
Changes to improve negotiation and settlement processes have also been implemented including earlier financial mandating for negotiations; increased human and financial resources; clarification of roles; the “bundling” of claims; and ongoing monitoring of negotiations to reduce inactive tables.
When “Justice at Last” was announced there were approximately 630 claims in assessment and 123 claims in negotiations. I'm proud to announce to you today that the assessment backlog has been completely resolved, and since 2007, 68 claims valued at $1.1 billion have been settled through the negotiated agreements.
First nations had expressed concerns that this slow pace of resolution of specific claims reflected a lack of budgetary capacity to pay out compensation once a settlement had been reached. In response to these concerns, dedicated funding of $250 million per year for 10 years is available to compensate first nations achieving settlement agreements through negotiations with Canada and to satisfy awards made by the Specific Claims Tribunal. Additionally, the Minister of Aboriginal Affairs and Northern Development can access the fiscal framework, if it is necessary, to draw down on these resources in excess of the annual forecasted amount.
Mediation is an excellent and cost-effective tool, and it is recognized that this tool should be used more often in stalled claim negotiations.
A mediation services unit has been established the function of which is to ensure the availability of independent mediation services as jointly requested by Canada and first nations during the negotiation of claim settlements. The mediation services unit is establishing four regionally-based rosters of independent mediators from which mediators may be engaged through a standing offer. The rosters are being developed through a request for proposal process advertised through the government’s public electronic tendering service.
The evaluation, performance measurement, and review branch of Aboriginal Affairs and Northern Development Canada undertook a formative evaluation of the action plan earlier this year. The purpose of the evaluation was to obtain an independent and neutral perspective on how well the action plan is achieving its expected results, supporting the achievements of departmental objectives with respect to the resolution of specific claims, and identifying opportunities to improve the design and implementation of the action plan. The evaluation report is available on the departmental website.
The independent evaluators found that the four pillars of the action plan represent the most appropriate and efficient process to achieve the action plan's expected result.
The four pillars of the action plan appear to be appropriate to address what were seen as shortcomings of the process.
The dedicated fund combined with the reporting measures that the specific claims branch has established have increased transparency in relation to financial resources invested by the federal government to settle these claims.
The revised internal procedures are expediting the claim settlement process and some efforts have been made to tailor the process to the nature of the claims.
Changes resulting from the action plan could be expected to enhance the ability of the federal government and first nations to settle specific claims, which in turn could promote greater social and economic development.
What is clear from these findings is that Canada’s action plan is working; it is achieving results and first nations are benefiting.
In the coming months an internal audit of specific claims negotiation costs will take place the next fiscal year, as well as a summative evaluation of the “Justice at Last” specific claims action plan. The Minister of Aboriginal Affairs and Northern Development will be making a complete report to cabinet on the implementation of the action plan.
Finally, a legislative review of the Specific Claims Tribunal Act will be undertaken in 2013-14 to assist the government in gauging the success of the legislation and the tribunal.
Thank you very much for this time. I welcome the opportunity to answer any and all of your questions.
Thank you to the witnesses. This has been helpful, especially for committee members who are new here. We went through this process just under a year ago, and we had an opportunity to interview the commission as well on that process. There are transcripts available to that end. They might be beneficial.
I was struck by part of your speech. After you talked about the pillars, you actually had an independent evaluator who found, among other things, that this is working, that “changes resulting from the action plan could be expected to enhance the ability of the federal government and first nations to settle specific claims, which in turn could promote greater social and economic development”. I can't help but think that certainly for a senior policy analyst like Kathy Green, this would have been something she was either seeing the results of or had thought about.
I'm saying that pre-emptively because this committee has taken note of a couple of big-ticket items that first nations leadership is talking about, and one of them--a key one, I might add--has been the strategic economic development of land, or land-use planning.
I know that specific claims don't necessarily fit into that per se, but on this side of the table certainly we are beginning to be struck by what appears to be an emerging constellation of tools and instruments and/or processes that offer up opportunities for first nations to move forward on sustainable economic development planning.
This is perhaps particularly for the senior policy analyst. Can you expound on the last part of that comment, which appears to have been from your evaluators, on what discussions you might have had about how this benefits, as a tool or an instrument, economic development prospects for first nations communities?