Land claim process concerns NAN leaders

Nishnawbe Aski Nation is concerned about the upcoming Oct. 16 deadline for review of land claims through Aboriginal Affairs And Northern Development Canada’s Specific Claims Branch.
“We have several claims under review and we’re advised by the Specific Claims Branch analysts that they are running out of time, so they are returning claims for comment despite the review being incomplete,” Beardy said. “NAN has been pushing for claims to be temporarily withdrawn so that the claims can be properly evaluated and resubmitted once they are completed.”
Beardy said NAN is concerned about the Specific Claims Branch’s partial reviews because the claims could be rejected altogether or because the claims are incomplete, the awards could be “very small.”
An Aboriginal Affairs and Northern Development Canada spokeswoman said the average processing time for the specific claims process prior to 2007 was 13 years.
“First Nations can now take their claims to the Specific Claims Tribunal for a binding decision if it takes Canada longer than three years to make a decision on whether to negotiate their claim,” said Geneviève Guibert, media relations with AAND, in an e-mail reply. “They can also seek a binding decision from the tribunal if they do not agree with Canada’s decision on their claim.”
But Beardy said there are inadequate resources for the Specific Claims Tribunal.
The tribunal cannot award more than $150 million to a single claim and only hands out $250 million per year for all specific claims through the tribunal. The legislation phases out after 10 years.
Guibert said the settlement fund is reviewed regularly.
Beardy said Elders in his communities have been stressing the need to reclaim their land through the specific claims process.
“The land is always there – it will be very valuable even if the economy collapses,” Beardy said. “The important question here (for) our people is that we must try to claim as much land back as we can. That was the purpose of the land claims.”
However, Guibert said Canada does not take away land or buy land from third parties to settle specific claims.
“In general, specific claims settlements include cash compensation, and when land is part of the final settlement agreement, a First Nation can use this money to purchase land on the open market on a willing-seller/willing-buyer basis,” he said.
Beardy said NAN is also concerned about the rejection of specific claims with a partial acceptance.
“In the last few months, many First Nations have received letters from Canada saying that their claim has been accepted for negotiation, however, typically only one, and usually a smaller one, aspect of the claim has been accepted,” Beardy said. “In some cases Canada does not offer to negotiate but sets out a pre-calculated figure or formula which is offered as an expedited settlement. There is no offer to negotiate or even to talk.”
Guibert said not all claims are accepted for negotiation under this process, nor does Canada indiscriminately accept every allegation made in a First Nation’s claim.
“In some cases, only parts of a claim are accepted,” Guibert said. “A claim has to show that Canada owes an outstanding legal obligation to a First Nation or the claim will not be accepted for negotiation.”
Guibert said efforts will be made to resolve specific claims worth less than $50,000 through an expedited settlement process without the need for a lengthy and costly negotiation process for Canada and the First Nation.
“With such claims, it can cost more to negotiate the claim than to settle it,” she said. “Canada will cover a First Nation’s reasonable costs, including ratification costs and the costs of seeking legal advice on an expedited settlement offer.”
The Liberal Party of Canada and the Assembly of First Nations also expressed concerns about the specific claims process.
“Use of the Specific Claims Tribunal process alone to settle claims will deny First Nations justice and financial fairness, and will not fully and respectfully honour Canada’s lawful obligations to First Nations,” said Carolyn Bennett, Liberal critic for Aboriginal Affairs and Northern Development and the Canadian Northern Economic Development Agency. “The government must continue to negotiate in good faith, in adherence with its own established policies on specific claims, and work collaboratively with First Nations to improve the claims process, including for claims over $150 million.”
Chiefs at the recent Assembly of First Nations meeting in Moncton, N.B, passed a resolution urging Canada to not cut off negotiations, affirming that a decision to terminate negotiations ought to be based on the principles of good faith, respect and mutuality, and calling on Canada to stop the de facto rejection of specific claims through letters of partial acceptance and the requirement for sign-off on more issues than those identified by the partial acceptance.
“First Nations are naturally concerned about any apparent attempt that may diminish or deny our lawful claims,” said National Chief Shawn A-in-chut Atleo. “Claims must be dealt with through a process that is respectful of the legal obligations of all parties, including the federal government. We will continue to press forward on an approach with the government that reinforces the responsibility to work in good faith on all matters that affect our lands, our rights and our peoples. Nothing less will do.”
The minister of Aboriginal Affairs and Northern Development said the federal government is continuing to work with First Nations to resolve land claims in a timely manner and to the benefit of all Canadians.
“Our government is working with First Nations to conclude settlements within a three-year time frame whenever possible,” said John Duncan, AAND minister. “We remain serious about our commitment to continue to negotiate and resolve specific claims. We are taking concrete action to deliver on that commitment for the benefit of First Nations and all Canadians.”