[news] New Native Land-Claim Act Appalls Experts

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New Native Land-Claim Act Appalls Experts
· By Alex Roslin

It's hard to believe now, but when Vancouver lawyer Stan Ashcroft filed
his first Native land claim case in the early 1980s, it took only one or
two years to get an answer from Ottawa. Today, that kind of response
time is as likely a scenario as all non-Natives packing up and going
back to where they came from.

"Right now in B.C. it takes seven to nine years to get a response, which
is craziness. You're lost in never-never land," Ashcroft says, reached
by phone at his West Vancouver office.

And despite the widespread attention given the recent final agreement
for the Northwest Territories' Dogrib Nation, Canada's sloth-slow system
of settling Native land claims is about to get a lot worse, according to
Native groups and legal experts.

It's thanks to the Specific Claims Resolution Act, or Bill C-6, a
little-noticed bill that has slipped through the House of Commons,
overlooked amid the protests over the First Nations Governance Act.

Robert Nault, federal Minister of Indian Affairs and Northern
Development, has said Bill C-6 will make the Native land-claims process
faster, fairer, and more transparent and will clear the backlog of 771
specific land claims, including 330 in British Columbia alone.

At the existing rate, it will take until 2058 to settle the existing
claims, and 60 new ones are being filed each year. Half of the new cases
are in B.C., where the backlog is the worst of any province.

Bill C-6 would meet a long-standing Native demand: a tribunal with
binding powers to judge specific land claims that have been rejected by
the federal government. The tribunal will be part of a new Specific
Claims Resolution Centre, which would replace the existing Indian Claims
Commission.

The present commission is also like a court of appeal for specific
claims rejected by the feds, but unlike the proposed new binding
tribunal, this commission only has the power to mediate disputes and
make recommendations to Ottawa on reopening a case. The government often
ignores the commission's reports; one report has been on the books nine
years with no response from Ottawa.

The government's reform deals only with "specific" land claims. These
claims cover the hundreds of cases in which First Nations say they were
fraudulently or unlawfully dispossessed of reserve land by federal and
provincial governments in the late 1800s and early 1900s.
("Comprehensive" claims deal with broader self-government issues; they
have a massive backlog of their own.)

Some of the country's leading land-claims experts say that Bill C-6, far
from improving the process, will actually disembowel the land-claims
system and do nothing to clear the backlog.

"You've got a process that's in a hopeless gridlock," says Vancouver
lawyer Allan Donovan, who has represented B.C. First Nations in more
than 40 specific claims. "The biggest problem that isn't being addressed
is the backlog," he says on the line from his office. "Until they deal
with the backlog, the rest is just tinkering."

Ron Maurice, a Calgary lawyer who was chief counsel of the Indian Claims
Commission from 1996 to 1998, agrees. "With Bill C-6, you've got more
gridlock, more litigation, more roadblocks, more animosity," he says,
reached by cellphone while travelling in Alberta.

The Assembly of First Nations has called for Bill C-6 to be scrapped. It
is mounting a last-ditch effort to lobby the Senate to kill the proposed
legislation when Parliament resumes in September. "My goodness, there
are nearly 800 specific claims now before Canada," says Phil Fontaine,
newly elected national chief of the Assembly of First Nations, in a
phone interview while vacationing in the Kootenays. "It's completely and
absolutely unreasonable."

"When we talk about poverty, an important process has to be the
resolution of these claims," Fontaine says.

The issue is a contentious one. Long-simmering specific claims presaged
many of Canada's worst conflicts over Native land during recent years,
including Gustafsen Lake, Ipperwash, and Oka.

"The social costs of not settling these claims are enormous,"
land-claims lawyer Alan Pratt says from his office in Dunrobin, Ontario.
"You have people growing up in poverty who shouldn't be and who don't
have opportunities they should have. The government has never come to
grips with how big the problem is."

The biggest concern with Nault's land-claims reform, say some, is what's
not in the bill: more money for settlements and more government staff to
review claims.

The Indian Affairs budget for specific-claim settlements is $75 million
per year, and that's not going to change, according to Audrey Stewart,
assistant deputy minister for claims and Indian government. Even with an
extra minimum $25 million annually kicked in by the Treasury Board in
recent years, it's still only enough to settle an average of 14 claims
each year, far less than the number of new cases being filed.

"Every program manager in the government would like more resources,"
Stewart laments.

The lack of new funds angers some land-claims experts. "Seventy-five
million dollars a year is not adequate for B.C., let alone the whole
country," Donovan says.

"You would never see that [budget ceiling] in the context of pay equity,
for example," Maurice says, pointing to the $5-billion pay-equity ruling
for federal employees in 1998. "No one will ever balk at that because
they are charter rights. It really is the same thing for aboriginal
rights."

In the B.C. and Yukon region, the federal justice department has only
five lawyers doing all the legal reviews of specific claims, and much of
their time is spent on treaty and claim negotiations and dealing with
the Indian Claims Commission.

"It's not sufficient," says an Indian Affairs official who spoke on
condition of anonymity. "If a claim was sent now for legal review, it
would take 20 years. It's very frustrating, extremely frustrating. The
real problem with the whole process until now is the huge backlog, and
this reform doesn't do anything to address that.

"I'm not sure what the motivation behind the legislation was unless it
was just to make it look like the government was doing something," he
says.

Ironically, the delays only add to the government's final settlement
costs, because the biggest component is usually interest, says Kim
Fullerton, who was the Indian Claims Commission's chief counsel in the
early 1990s.

"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," Fullerton says, reached by phone at his office in Oakville,
Ontario, where he represents several First Nations in private practice.

 

THE LACK OF new funds is not the only concern. Much outcry has also
focused on the fact that Bill C-6 will require a First Nation to agree
to a $7-million cap before the new tribunal would hear its case. That
amount, claims experts say, is laughably low.

"The $7-million cap is not going to work," says Stephen Pillipow, a
Saskatoon lawyer who has represented First Nations in 15 claims
settlements.

Only one of the claims was worth less than $7 million, Pillipow says
over the phone from his office. "And that was 12 years ago. If you look
at all the claims being settled now, there is nothing even close to $7
million."

(After protests from Native groups, the Senate raised the ceiling to $10
million, but the government won't say whether or not it will accept the
amendment when the bill comes back to the House for final approval.)

Even the current government-appointed Indian Claims Commission, which
does not have a settlement cap, has expressed concern about Bill C-6. In
its winter 2003 in-house newsletter, it said the cap "may have a
negative effect on the access-to-justice principle". Only three of the
27 claims the commission helped settle or mediate since its creation in
1991 were resolved for under $7 million. The average was more than $26
million.

"The vast majority of claims I've come into contact with far exceed the
cap," says Maurice, the former commission counsel. He dismisses the new
tribunal as "essentially a small-claims court".

In a twist that has puzzled some, the $7-million cap will apply not only
to settlements but also to First Nations that simply want to ask the new
tribunal to study the validity of their claim.

Such studies are a key role of the existing Indian Claims Commission.
The commission's reports have helped convince Indian Affairs to reopen
45 claims that the department had previously rejected. In 30 cases, the
department changed its mind and agreed to negotiate a settlement.

The new tribunal would not have heard these cases, except in the
unlikely event that the bands had waived settlements over $7 million. "I
think it's absolutely absurd," Maurice says.

Without access to the tribunal, most First Nations will only have one
option left: suing Ottawa. But in B.C., First Nations are barred from
doing that, too. Breach-of-trust cases must be brought within 30 years
under the province's statute of limitations. Native land claims are
usually a century or more old; before 1951, the Indian Act effectively
barred First Nations from using their funds to advance land claims.

Even in provinces that allow older claims, most First Nations can't
afford the colossal legal bills of fighting the government in court;
costs are five to 10 times higher than settling a claim at the
negotiating table.

As if that isn't bad enough, Ashcroft says, Bill C-6 will hit B.C.
harder than any other province because it has new restrictions on what
constitutes a legitimate land claim. The government's new claims centre
will only be able to mediate or judge claims that arise from
mismanagement of reserve lands or breaches of treaties or law.

B.C. is in a unique situation because turn-of-last-century provincial
leaders refused to sign treaties with First Nations, preferring to grab
land without compensation. Meanwhile, the feds argue that many
territories taken from B.C. First Nations weren't reserves, either. The
result, Ashcroft says, is that Bill C-6, the reform that is supposed to
bring fairness and speed to land claims, will leave many B.C. First
Nations out in the cold.

"The claims being made for this bill are that the key deficiencies in
the process are being addressed," Pratt says. "The government has simply
misled people."