SPECIFIC CLAIMS BRANCH

DIRECTOR GENERAL

Room 1660
Telephone No. (819) 994-2323
Fax No. (819) 994-4123

Overview

Current federal policy divides claims into two categories: specific and comprehensive claims. Specific claims arise from Canada’s breach or non-fulfilment of lawful obligations found in treaties, agreements or statutes (including the Indian Act). Comprehensive claims are based on unextinguished Aboriginal rights where no treaty has been signed. Other claims involving grievances which resemble comprehensive or specific claims, but do not meet established program criteria for addressing these claims may also be considered in exceptional circumstances.

Canada is committed to honouring its lawful obligations to First Nations. Canada’s Specific Claims Policy was established in 1973 to assist First Nations in appropriately addressing their claims through negotiations with the government as an alternative to litigation. The policy was clarified in 1982 with the codification and publication of the specific claims policy entitled Outstanding Business. In 1991, the policy was reviewed to include pre-Confederation claims, and the introduction of “fast-track” claims (where the claim settlement is not expected to exceed $500,000). The following recommendations were made at that time: the establishment of Indian Specific Claims Commission on an interim basis; the creation of a joint Assembly of First Nations (AFN)/Canada working group; and the establishment of a permanent independent claims body.

Only claims submitted by duly recognized First Nations will be reviewed under the policy.

Technical defences such as laches and limitations are not considered; nor are strict rules of evidence.

Only claims based on events 15 years or older at the date of the claim submission will be considered.

The guiding principles of the Specific Claims Policy include: fairness, accountability, transparency, resolving historical grievances through negotiation, and the need for public communications.

Claims are accepted for negotiation when it is determined that Canada has breached its lawful obligation to a First Nation. All negotiations are conducted on a “without prejudice” basis. Compensation to First Nations is based on legal principles.

Government policy recognizes that a specific claim exists when the First Nation’s grievance establishes that Canada had a lawful obligation through:

the non-fulfilment of a treaty or another agreement between Indians and the Crown;
breach of the Indian Act or other legislative responsibility; and/or
breach of an obligation arising out of government administration of Indian funds or assets.

If a claim, after review and analysis by Canada, does not disclose a lawful obligation, a First Nation which disagrees with this conclusion has the following options: resubmit the claim along with new evidence and/or legal arguments; petition the Indian Specific Claims Commission (ISCC) to request an inquiry; or pursue litigation. The ISCC, established under the Federal Inquiries Act, has a mandate to conduct inquiries and make recommendations on the validity of claims where a breach of lawful obligation to a First Nation has not been disclosed. The ISCC can also make recommendations concerning compensation criteria in the negotiation of a settlement, if there is a disagreement over this issue, and, where the negotiating parties agree, can facilitate negotiations.

Since 1973, Canada has settled 275 specific claims [as of September 30, 2006]. At present, there are approximately 123 specific claims in negotiation. Canada is committed to resolving outstanding grievances to the benefit of all Canadians. By addressing historic injustices which undermine trust and cooperation, strong partnerships among Aboriginal people, governments and non-Aboriginal communities are emerging. In addition to building these partnerships, settlement of specific claims spurs economic development on Aboriginal lands and in surrounding communities.

Settling claims strengthens First Nation communities and brings long term economic benefits to both First Nations and local communities.

Private property is not on the table during the negotiations of specific claims. When a settlement agreement is negotiated, any land purchased as a result of a settlement is on a willing-seller/willing-buyer basis.

Canada’s policy of addressing First Nations’ specific claims is in keeping with Gathering Strength –Canada’s Aboriginal Action Plan. Gathering Strength is a comprehensive approach to renewing partnerships, strengthening Aboriginal governance, developing a new fiscal relationship, and supporting strong communities, people, and economies.

The role of Specific Claims is as follows:

Directorates of the Specific Claims Branch:

Definitions

Aboriginal peoples:

The descendants of the original inhabitants of North America. The Canadian Constitution recognizes three groups of Aboriginal people — Indians, Métis people and Inuit. These are three separate peoples with unique heritages, languages, cultural practices and spiritual beliefs.

Aboriginal rights:

Rights that some Aboriginal peoples of Canada hold as a result of their ancestors’ longstanding use and occupancy of the land. The rights of certain Aboriginal peoples to hunt, trap and fish on ancestral lands are examples of Aboriginal rights. Aboriginal rights will vary from group to group depending on the customs, practices and traditions that have formed part of their distinctive cultures.

Aboriginal title:

A legal term that recognizes Aboriginal interest in the land. It is based on their longstanding use and occupancy of the land as descendants of the original inhabitants of Canada.

Band:

A group of First Nation people for whom lands have been set apart and money is held by the Crown. Each band has its own governing band council, usually consisting of one or more chiefs and several councillors. Community members choose the chief and councillors by election, or some times through traditional custom. The members of a band generally share common values, traditions and practices rooted in their ancestral heritage. Today, many bands prefer to be known as First Nations.

First Nation:

A term that came into common usage in the 1970s to replace the word “Indian,” which many people found offensive. Although the term First Nation is widely used, no legal definition of it exists. Among its uses, the term “First Nations peoples” refers to the Indian people in Canada, both Status and Non-Status. Many Indian people have also adopted the term “First Nation” to replace the word “band” in the name of their community.

Indian:

A term that describes all the Aboriginal people in Canada who are not Inuit or Métis. Indian peoples are one of three groups of people recognized as Aboriginal in the Constitution Act, 1982. The act specifies that Aboriginal people in Canada consist of Indians, Inuit and Métis people. In addition, there are three legal definitions that apply to Indians in Canada: Status Indians, Non-Status Indians and Treaty Indians.