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New land claims plan questioned.

Editor's note: This article originally ran in the August 2007 issue of Windspeaker, however, due to an oversight during the production process a portion of the text was omitted. In order to rectify the error, we are re-running the article in its entirety.

Assembly of First Nations (AFN) National Chief Phil Fontaine's support for the Harper government's new plan to break the backlog in specific claims settlement has many people across the country scratching their heads.

"This is an historic announcement, and a day to applaud the federal government on its commitment to resolving the growing land claims backlog," Fontaine said in a press release. "First Nations have been calling for a fair, independent, binding and just approach to resolving specific land claims for decades now."

But many backroom First Nation workers point out that there's no land in the new land claims' settlement plan, only cash compensation. And the government-imposed parameters of the recently announced plan rule out loss of use payment and compound interest on cash settlements and punitive damages against a government that has stalled the process for generations.

Several First Nation technicians pointed out that the government is still not allowing First Nations to be equal partners in appointing adjudicators to a tribunal that will decide cases where the First Nation and government can't agree.

Indian Affairs Minister Jim Prentice said last month that the superior court judges the government will appoint to the tribunal can be trusted to be independent and weigh both sides equally.

One technician, who requested he not be named, said "If it doesn't matter who appoints the tribunal, why not let us do it?"

And since there's only $250 million a year over 10 years put aside to settle claims that the government of Canada itself conservatively estimates have a total value of $15.1 billion, and no claim worth more than $150 million can be addressed by the new process, the source called the new plan a "small claims' court."

Roland Pangowish did work for the AFN over the course of many years, including years toiling on the AFN/INAC joint task force on claims. That committee's work was rejected by former Indian Affairs minister Robert Nault in his First Nations governance Act (FNGA), and that led to the FNGA being rejected by the chiefs. Pangowish, and many of the other people who worked on the AFN side of that task force, urged the rejection of the FNGA because it did not call for a truly independent body that would resolve disputes in a nation-to-nation relationship.

The FNGA, a suite of four proposed government bills, was eventually defeated. Former prime minister Paul Martin refused to enact Bill C-6, the one piece of legislation that dealt with specific claims reform that was passed.

Pangowish sent Windspeaker his analysis of the Conservative Party plan announced by Prime Minister Stephen Harper on June 12. He wrote that "the measures merely modify the current system and add a federally-appointed tribunal. The recommendations of the joint task force are completely abandoned here, even more significantly than Bill C-6 did in the sense that the concept of an independent claims body to manage the entire specific claims process is abandoned altogether." When he looked at the government plan, the claims specialist noted that the "longstanding objective of First Nations to eliminate the government's conflict of interest in judging claims against itself by establishing an independent claims body is not achieved. While these measures might marginally improve the rate of claim settlements, the limited increase in financial resources will not significantly reduce the growing backlog of specific claims."

Pangowish said mere consultation with First Nation leaders in the tribunal appointment process will not be enough.

"The lack of a defined role for First Nations in appointments to the tribunal, and in the five-year review process, is bound to call into question the fairness of the body and will maintain the perception of conflict," he said.

Senator Gerry St. Germain, chair of Senate's standing committee on Aboriginal Affairs, said the proposed plan, which he acknowledged, "was as close to a mirror image as you can get" of the report his Senate committee produced on the stalled land claims process, insists a tribunal of superior court judges can be a truly independent body. He acknowledged that it was not truly independent in the sense that First Nations and the government would jointly appoint the tribunal members, but he did not think it would be a deal-breaking issue.

"I don't believe so because I think you're going to be relying on high level judges. This is not something that's going to be placed in the hands of a chicken farmer, cattle rancher like myself. They [First Nations] are going to be part and parcel of the appointment process. They're going to be consulted. You know, the final decision, logically will come down to the minister," he said, during a phone interview. "If the leadership of the government proves that it's sincere in what it's trying to do, it's not hard to see consensus. But as I say there's nothing perfect in this world, but I can assure people at the highest level of adjudication will certainly be chosen for the job."

When he was asked about the limits the government had put on the plan right from the outset, Gerry St. Germain said First Nation leaders would have to trust the government to behave well as things unfolds.

"What we were trying to do as a committee was to develop a process that would expedite the process itself. Not so much as to how these will be adjudicated. I think guidelines will be established, precedent will be set very quickly and I believe that fairness will prevail," he said. "And if we're not fair in dealing with these things we'll have not made any progress. Fairness and expediency has to be the hallmarks of how this whole process goes ahead. If it is a genuine negotiation then the hopes are that these can be negotiated prior to going to adjudication."

He rejected the idea that the plan was a small claims court.

"The original C-6 had a $10 million cap. This is $150 million. There's not many claims over $150 million," he said.

Liberal Party sources say that Canada puts $15.1 billion on the books annually representing a contingent liability that Canada owes for land claims. St. Germain said it's one thing to put a hypothetical number on a page and quite another to actually pay out real money settling claims.

"If it isn't assigned, it doesn't happen. This is clearly defined. These funds are for this specific use. You can have all kinds of contingency funds on the books, but if it isn't assigned and specified, what happens is it just doesn't happen and this is what's been happening for years," he said.

"The whole process had to be re-designed so that, number one, you couldn't continue on with having the government being the judge, the jury, the prosecution. That was one of the big things for implementing an independent body."

During a phone interview on June 19, New Democratic Party (NDP) leader Jack Layton said his party supports a nation-to-nation approach on settling land claims. Layton said the NDP had noted that the call for a truly independent tribunal had not been acknowledged.

"We have some of these same concerns as to how it's going to work. We know that the government is committed to be in negotiations and discussions with the AFN and other First Nations groups and we will be monitoring those discussions very, very closely and I will stay in touch with the negotiators and with the national chief and, of course, we'll be at the AFN gathering in Halifax in July and we will hold government to account," he said.

"We believe that, as I've said time and time again, a nation-to-nation approach is what is required. That's what happened when those treaties were signed and that principle needs to be honoured. If we don't respect it then we're never going to get out of the downward spiral that we've been in.

"Canada is a wealthy country. There's no question the government hasn't allocated the funds it should. It has other priorities and we think that those priorities are misguided."

By Paul Barnsley

Windspeaker Staff Writer

OTTAWA
COPYRIGHT 2007 Aboriginal Multi-Media Society of Alberta (AMMSA)
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Author:Barnsley, Paul
Publication:Windspeaker
Date:Sep 1, 2007
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