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on the trail of broken promises, this one was a real beauty. Tom Siddon, Brian Mulroney’s minister of Indian Affairs, promised in 1990 to clear the backlog of native land claims within 10 years. Today, not only has that backlog ballooned, but Canada’s sloth-like system of settling land claims is about to get a lot worse. It’s all thanks to the Specific Claims Resolution Act (Bill C-6), a little-noticed bill that has slipped through the House, eclipsed by the uproar over the Governance Act.
Indian Affairs Minister Robert Nault has said Bill C-6 will make the native land claims process “faster, fairer and more transparent” and clear the growing backlog of 756 claims, including 179 in Ontario.
But critics are furious that the bill, which establishes a new claims tribunal, will have a $7 million cap on settlements – a ceiling that would, for example, have scuttled current negotiations with the Mississaugas of New Credit First Nation over their ownership of parts of Toronto. In June, Ottawa admitted the Mississaugas were cheated out of more than 1,000 square kilometres of prime Toronto real estate in 1787 and 1805, and ongoing talks are expected to result in a settlement worth several hundred million dollars.
“The bill is really a rotten and limited answer to the problems with the credibility of the existing process,” says Alan Pratt, a lawyer near Ottawa who has represented First Nations in over $100 million worth of land claim settlements.
Nault touts the new Specific Claims Resolution Centre as an independent body that will replace the existing Indian Claims Commission. The latter only has power to make recommendations and mediate disputes, but the new centre is mandated to make binding decisions on land claims and to help First Nations research their claims so they have a better chance of being accepted by the feds. (Specific claims concern violations of treaties or federal obligations, while comprehensive claims cover broader self-government issues.)
Some of Canada’s leading native legal advocates say Bill C-6 will disembowel the land claims system and force First Nations into long, costly court fights, the only alternative to using the centre’s tribunal. Even the staid Indian Claims Commission, which does not have a settlement cap, has expressed concern. It says only three of the 24 claims it has played a part in since its creation in 1991 were settled for less than $7 million.
Kim Fullerton, the Indian Claims Commission’s chief counsel in the early 1990s, has worked on 40 land claims, representing Ontario Hydro, the Indian Commission of Ontario and various First Nations. He says three-quarters of these claims were settled for more than $7 million. Fullerton is now in private practice and represents the New Credit Mississaugas in their so-called Toronto Purchase land claim.
Under Bill C-6, Fullerton says, the Toronto Purchase claim would now be in court, not negotiations. He won’t estimate how much the claim is worth, but one report suggests a sum of $1 billion-plus. “This and all other large claims would essentially be orphans under this new system,” says Fullerton.
The $7 million cap applies both to the new tribunal’s rulings on settlements and to one of the Indian Claims Commission’s most important roles: holding independent inquiries into land claims and issuing reports on their validity.
In the Toronto Purchase case, it was only after the commission started such an inquiry that Indian Affairs came back to the table after initially rejecting the claim in 1993. Under Bill C-6, the Mississaugas would have had to agree that their claim is not worth more than $7 million in order to request an inquiry.
“The $7 million cap is not going to work,” says Stephen Pillipow, a Saskatoon lawyer who has represented First Nations in 15 land claims. He says only one of the 15 claims he worked on settled for less than $7 million – “and that was 12 years ago. Today it wouldn’t be anywhere close to that.”
So what’s wrong with just fighting out land claims in court? The final outcome can be risky for both sides. A judge can give disputed land back to the First Nation and award bigger payments than in a negotiated settlement. On the other hand, judges often have only skimpy knowledge of aboriginal-related law and set damaging precedents. Also, court battles can take more than a decade to get to trial, and most First Nations don’t have that kind of money. Costs skyrocket for both sides, usually totalling five to 10 times more than in negotiated settlements.
“Canada will bring in every possible procedural obstacle to break you financially before you ever get into court. The strategy is ‘If you go to court, we will punish you,'” says Paul Williams, a lawyer in Ohsweken, Ontario, who represents several First Nations in land claims.
“I almost never advise my clients to go to court. It’s a lousy way to resolve problems,” says Fullerton, who prefers mediation and arbitration, solutions he says are neglected in Bill C-6.
It also doesn’t help matters, critics say, that the new claims centre will be in a clear conflict of interest because the federal cabinet will appoint its CEO and commissioners. “The government is the defendant, adjudicator and fiduciary trustee of First Nations,” says Pratt. “It is an impossible tangle of different interests that are in conflict with each other.”
The main problem with Bill C-6, its critics say, is that it does nothing to address the woeful lack of funds and government staff that are at the root of the land claims backlog. Indian Affairs has an annual budget of $75 million to settle specific land claims (more is allocated only in exceptional cases), enough to settle just 14 claims a year on average. Meanwhile, 60 new claims are filed each year.
And no new funds are coming, says Audrey Stewart, the department’s assistant deputy minister for claims and Indian government. “These claims are complex and difficult, and they do take time. Yes, we’d like to do more.”
This lack of funds means 10 to 12 years often pass before negotiations even start on a settlement, and that’s only if the claim is accepted. Ironically, the delays only add to the government’s final settlement costs, because the biggest component is usually interest, says Fullerton. “Taxpayers – and I’m a taxpayer – should be downright pissed off that the government is not dealing with these claims. It’s a mortgage on our future,” he says.
