Speaking Notes
for the Honourable Robert D. Nault, P.C., M.P.
Minister of Indian and Northern Affairs Canada

The Specific Claims Resolution Act Bill
C-6

Presentation to the Standing Committee
on Aboriginal Affairs, Northern Development and Natural Resources

Ottawa, Ontario
November 26, 2002

Check Against Delivery

Mr. Chairman and Committee members, as you are aware, I've introduced a series of progressive measures in recent months to enable First Nations to accelerate their transition toward self-government and greater economic independence. These include the proposed First Nations Governance Act and First Nations Fiscal and Statistical Management Act, as well as recent steps to open up the First Nations Land Management Act.

Each of these Bills puts new tools of economic self-sufficiency into the hands of First Nations. Each plays a fundamental and complementary role in advancing our agenda of building stronger, healthier communities and a better quality of life for Aboriginal people.

Equally crucial is the Bill that is before us today.

This Bill flows from Liberal Party Red Book commitments and is the result of many years of study and discussion of how best to address the many specific claims that have arisen in the course of Canada's relationship with First Nations. Our goal in putting the Specific Claims Resolution Act forward is, quite simply, to improve the present process of resolving these claims.

The proposed Specific Claims Resolution Act will provide a firm foundation for the faster, fairer and more transparent processing and settlement of specific claims.

The Canadian Centre for the Independent Resolution of First Nations Specific Claims, created by this Act, will thereby remove an enormous roadblock to economic development by improving First Nations' access to land and resources.

This will allow them to get on with the business of developing their communities, attracting investment and shaping their own destiny.

As the recent Speech from the Throne reinforced, this has been our overarching objective since this government took office.

We have acknowledged that new ways of solving old problems had to be found.

We recognized that Aboriginal people had legitimate and longstanding grievances that, as a nation, we have a duty to address.

Some of these grievances are the result of the failure of successive generations to uphold some of the promises made by our forefathers. At that time, the Crown agreed to provide sufficient land for reserves, and to manage that land and other First Nation assets according to high standards of conduct.

Over the years, First Nation complaints about how the Crown was discharging its responsibilities grew. Historically, there were few avenues for redress. For example, between 1927 and 1951, the Indian Act hindered First Nations by requiring them to get government permission if they wanted to use their own money to advance their claims.

As a result, grievances accumulated and the relationship between First Nations and the federal government suffered.

In 1973 the Liberal government of the day responded by announcing a "specific claims" process to resolve these issues out of court. The initial goal was not only to address our legal liability, it was also—and equally importantly—to begin to deal with the historical sense of injustice on the part of many First Nations that was impeding progress in other areas of our relationship.

Since then our policy has been clarified and expanded on two occasions—in 1982 and again in 1991. The purpose then, as now, was to introduce greater fairness and efficiency into the process. And we have had some success in dealing with these historic grievances. At present, a total of 232 agreements worth over $1.3 billion have been ratified, adding over 16,000 square kilometres to reserve lands across the country.

However successful our approach has been, nearly 600 claims have been added to the inventory of unsettled claims since then. In part, the growing number of claims is due to improved research capacity all across Canada.

Formerly little-known areas of our national history have now come to light through the efforts of academic historians, as well as government and First Nation claims researchers.

In part, this growth is also due to court cases that have clarified the scope of the legal doctrines that underpin Canada's relationship with First Nations. Many earlier claims that were rejected on the basis of our understanding of the law at that time are being reassessed and added to the list of unresolved specific claims.

And frankly, this growth in claims is also due to our inability to move them more quickly through the current specific claims process. Delay in settling claims is costly because specific claims are historical in nature. The longer they remain unresolved, the more it costs to settle them and the longer First Nations have to wait to receive a just settlement.

Despite the improvements brought about in 1991—when we beefed up the human and financial resources committed to claims resolution—the current process still drags on far too long and eats up too many internal government resources.

Not surprisingly, many First Nations have become frustrated and resentful of the entire claims resolution process. They have come to distrust a system they believe to be unbalanced and unfair.

First Nations perceive Canada to be in a conflict of interest because it controls their funding to participate in negotiations, decides which claims it is willing to negotiate, and sets out the criteria on which it is willing to base compensation. The lack of confidence in the process can make negotiations difficult and encourages some First Nations to resort to the courts.

But winner-take-all solutions are risky for all concerned. We know that negotiation is preferable to litigation. First Nations themselves have told us so. So we want to create a more independent process for resolving claims—a more neutral system that will level the playing field for negotiation to resolve claims more efficiently.

Most importantly, a system that will allow First Nations to capitalize on increased opportunities for economic development by fostering a climate of trust, cooperation and certainty.

A few years ago, a joint Canada/First Nations Task Force of expert advisors looked into the claims process, building on past decades of study to design a model claims resolution body.

The proposed Specific Claims Resolution Act reflects the essential elements of this ideal model, tempered by current fiscal realities.

The Bill before you would establish a Claims Resolution Centre with two divisions. The first is a Commission to facilitate negotiated settlements using modern dispute resolution techniques.

The second is a quasi-judicial Tribunal to make final decisions on claim validity and compensation for claims up to $ 7 million in value—the majority—if dispute resolution cannot produce a negotiated outcome. Both divisions would be overseen by a Chief Executive Officer whose responsibility it will be to manage the day-to-day administration of this new body.

This Centre would replace the Indian Claims Commission that was set up in 1991 as an interim measure while the idea of an independent body was under discussion with First Nations.

The Indian Claims Commission—which is limited to providing advice to Canada and to offering mediation and other alternative dispute resolution services to the parties—has itself called for the creation of an independent body capable of making binding rulings.

Nor should we forget that the Indian Claims Commission has enjoyed some measure of success during its tenure.

It has demonstrated the value of developing a complete historical record—including oral evidence and history, of consulting elders, and of involving the community in public hearings. Above all, it has shown that alternative dispute resolution processes do work.

I would expect that the new Centre would want to build on the experience and expertise of the Indian Claims Commission in developing its own processes and procedures. I would equally expect that the Indian Claims Commission would play a leading role in designing transition measures from the present process once the Centre is up and running.

While many claimants may wish to remain in the current process, others may well wish to transfer their claims immediately to the new Centre. If so, it will be imperative that their rights be protected, and that the progress they may have made to date in advancing their claims be safeguarded during the transition to the new Centre.

Along with the Indian Claims Commission, I would expect that First Nations will also want to add their views about how best to ensure a smooth transition of existing claims to the new Centre once it is up and running.

The main purpose of this new Centre will be to bring greater independence, efficiency, transparency and finality to the process of addressing these claims. First Nations have long complained about the current process. This should help alleviate their concerns.

The Centre will help Canada and First Nations negotiate in a cooperative, rather than a confrontational, manner. For example, with Bill C-6, the negotiating parties would have access to Commission-sponsored facilitation, mediation, non-binding arbitration and, with mutual consent, binding arbitration.

It would provide modern dispute-resolution techniques that would help us reconcile our differences so we can more quickly reach agreements.

Constructive new tools which reinforce that both the federal government and First Nations would rather negotiate than litigate.

The Centre would also remove a key source of perceived bias by taking over funding for First Nation participation in the process, something currently managed by my department.

With the emphasis on negotiation, the Tribunal would be used only as a last resort.

In the event that negotiations do not lead to a resolution of the claim, the Tribunal would be able to make binding decisions about the validity of—and compensation for—claims up to $7 million.

Some have asked what happens to the larger claims. We believe that these disputes are best addressed in negotiations where the parties can work out solutions assisted by the new Commission.

This would allow the Tribunal to focus on cutting through the impasses and moving the more straightforward claims to resolution. In the interests of cost-effectiveness, efficiency and fairness to the other claimants, we don't want the Tribunal to get bogged down on one or two extremely large cases and delay access to the Tribunal for the others. That would defeat one of the purposes for which the Tribunal is being created.

Should negotiations on the larger, more complex claims prove unsuccessful, the courts would continue to offer a forum in which the complexities can be carefully examined, and where the parties can appeal decisions they feel are incorrect.

You will undoubtedly hear from First Nations representatives that this Bill falls short of their expectations.

They would prefer the ideal model proposed by the Joint Task Force that was premised on huge increases in the claims settlement budget. Frankly, so would I.

But such a proposal is simply unrealistic in today's economic environment when the government is faced with many competing priorities. We simply do not have the money, the people, or the time to address every issue that has arisen in the relationship between Canada and First Nations.

But we can move forward with initiatives that move the yardsticks, and that is what I am proposing to do here.

I say let's get on with the job of resolving these claims under this positive addition to the process. Let's give this new body a chance to prove itself and to be successful. Then let's come back to the question of funding and build on its successes.

The proposed Specific Claims Resolution Act represents a significant improvement over the way we now deal with specific claims. While the current backlog of claims won't be erased overnight, the Centre will create a more efficient and cost-effective method of settling claims.

Faster claims-processing will allow the economic benefits of claims settlements to be realized by First Nations more quickly, and will remove the current cloud of uncertainty that hinders resource development in some areas of Canada.

Mr. Chairman, these are not mere administrative measures, but a reflection of a reconciliation long in the making and long overdue.

Bill C-6 will help to lay the groundwork for a renewed relationship between First Nations and the Government of Canada.

In this context, I want to reiterate a point I have made many times before in other contexts. And that is that a better quality of life for First Nations' people cannot happen without an economy. Resolving claims will provide cash and land. But that is only part of the equation.

Removing a longstanding impediment to a better relationship by addressing these grievances is equally vital.

This Bill is aimed at both those goals. I am here today to encourage you to seize the potential of this progressive legislation. Making change takes the leadership of many. It takes all of us to do this. So let's get on with it.

Thank you.

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