Volume 3 | Fall 2015

INSIDEThe State of Claims in Numbers ................. 3Lake Babine Nation Case Summary .......... 4Access to Information Working Group ....... 6Claims Calendar ............................................ 6Specific Claims Tribunal Canada ................ 7

What is the State of Claims?By Tonio Sadik

ASSEMBLY OF FIRST NATIONS

Certainly, all of us are wondering how things will change on the specific claims landscape now that we have a new government. It really is about the state of claims in Canada at the moment. While many of us are optimistic about the potential of the federal Liberals, many of us have been around long enough to recognize rose-coloured glasses when we see them. That said, optimism is the order of the day.

So, what are the key issues for the claims community as we move into this post-Harper era? Before getting to the ‘asks’, how about we set out some of the things that have changed since the federal Liberals fell from grace in 2005. Foremost among these is the adoption of the UN Declaration on the Rights of Indigenous Peoples by the UN General Assembly on September 13, 2007. Canada, under the Harper government, went on to endorse it in 2010, but the significance of this document was already established. The UN Declaration contains some 19 articles relevant to recognition and honouring land rights; a few are of particular significance:

Article 8 (2): States shall provide effective mechanisms for prevention of, and redress for… (b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

Article 27: States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due

recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28 (1): Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. (2) Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.Then, on June 24, 2014, the Supreme

Court of Canada (SCC) made history in the now fabled Tsilhqot’in Nation decision, which – for the first time ever – actually granted title to some 1700 sq. km. of land to the Tsilhqot’in. While not a specific claim, the ripples of this decision – and the bold and persistent actions of the Tsilhqot’in – cannot be understated. The significance of this decision has yet to permeate the broader land right & claims landscape.

Earlier this year, on June 2, 2015, the Truth and Reconciliation Commission (TRC) issued its ‘calls to action’. And while

The views or opinions expressed in this newsletter are those of the authors named and do not

necessarily represent those of the Assembly of First Nations.

Photo by Fred Cattroll

National Chief Perry Bellegarde and now Prime Minister Justin Trudeau at the 2015 AFN Annual General Assembly in Montreal this past July.

this is not remarkable in and of itself, the federal Liberals have pledged to: “(…) enact the recommendations of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples”. To the extent that this is the case, I think it’s worthwhile to highlight the following ‘calls’ by the TRC:

45. We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown… [to] (i) Repudiate concepts used to justify European sovereignty over Indigenous lands and peoples such as the Doctrine of Discovery and terra nullius.

(ii) Adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation. (iii) Renew or establish Treaty relationships based on principles of mutual recognition, mutual respect, and shared responsibility for maintaining those relationships into the future. (iv) Reconcile Aboriginal and Crown constitutional and legal orders to ensure that Aboriginal peoples are full partners in Confederation, including the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims,

Six Nations hosts 23rd annual National Claims Research Workshop

By Jody WoodsUNION OF BC INDIAN CHIEFS

This year, Six Nations of the Grand River hosted the 23rd Annual National Claims Research Workshop in beautiful Ohsweken, Ontario. The workshop, held on October 6-8, 2015 brought together experts from all regions of Canada who shared their experiences and expertise regarding recent developments in information management, oral history, legislative initiatives and case law that directly impact the research, development and resolution of specific claims.

This year’s workshop was attended by about 75 delegates and featured a number of specialized sessions delivered by honoured speakers who are experts in their respective fields. It offered participants a wonderful opportunity for professional development, networking, sharing information and staying informed. This year’s workshop explores some of the following themes: • Litigating Claims Issues, Solutions,

Insurance and Funding Cuts to Specific Claims

• Honour of the Crown in Negotiations• GIS and oral history in Claims

Production• Access to Information in research and

advocacy• Updates from the Assembly of First

Nations

By Chief Maureen Chapman &

Chief Harry St. Denis It is not without some irony that we may well

be faced with the meaningful implementation of the Conservative’s Justice at Last strategy by a Liberal government. Justice at Last was the result of a process of collaboration that took place, beginning in 2007, between the Conservative government, under then Minister of Indian Affairs Jim Prentice, and the Assembly of First Nations (AFN). As we noted in our last column, at the time that Justice at Last was announced, most First Nations perceived it to be a good first step towards reconciling a long history of unresolved specific claims. Such a perception was not misplaced given that the new policy committed to ensure: (1) impartiality and fairness through the creation of an independent claims tribunal;

Making Good on Specific Claims – the new Federal Government?

(2) greater transparency through dedicated funding for settlements; (3) faster processing by improving internal government procedures; and (4) better access to mediation.

Here is the irony: while the Conservative’s made the commitment, they didn’t follow through. We are now left with the more awkward question of whether the Liberals will implement these commitments. While it is too soon to know where the new Prime Minister will land on this issue, and perhaps, more specifically, his new Minister of Indigenous Affairs – Carolyn Bennett – we are hopeful that she will deliver in ways that the Conservatives were never inclined to do. It did not take long, after all, following the departure of Jim Prentice from his post as Minister, for the commitments he had made under Justice at Last to fall to the wayside.

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Continued on page 2

• Tribunal Decisions undergoing Judicial Review

• Legal Duty to Consult and Accommodate

• Additions to Reserve • Trusts for Claims Settlement

Payments• Preserving Oral Testimony• and much more

Delegates were also treated to wonderful food supplied by various caterers from Six Nations, a cultural tour of Six Nations Territory and a wonderful Thanksgiving Banquet by Family Traditions of the Grand complete with a turkey dinner! See photos on page 5.

Next year’s National Claims Research Workshop will be held in Vancouver, BC.

Jody Woods is the Research Director at the Union of BC Indian Chiefs.

Fall 2015 2

The State of Claims newsletter is published twice a year by the Assembly of First Nations (AFN). The newsletter provides a new forum for ongoing information and updates about specific claims related issues across the country, including tribunal decisions, useful resources, expert advice, and planning for the upcoming five-year legislative review.

The AFN would like to thank all of the contributors for sharing information and perspectives on claims issues affecting First Nations.

The views or opinions expressed in this newsletter are those of the authors named and do not necessarily represent those of the AFN.

If you would like to be added to our electronic distribution list, please e-mail Johanna Jimenez-Pardo at jjpardo@afn.ca.

Assembly of First Nations55 Metcalfe Street, Suite 1600Ottawa, ON K1P 6L5Telephone: 613-241-6789Toll-free: 1-866-869-6789Fax: 613-241-5808www.afn.ca

It is difficult to know where the source of these challenges lay. Was it really a lack of political will that characterized the transition from Justice at Last to something that some commentators suggested was more akin to ‘Justice Delayed’ or even ‘Just for Laughs’? Others have suggested that the real challenge – or inertia, as it is sometimes referred to – arises from within the Department or, more specifically, the Specific Claims Branch. In any case, the point is that, with the exception of the creation of the Tribunal, few if any of the other commitments that Justice at Last purported to make were ever lived up to during a Conservative era.

So, where do we go from here? Clearly, it can be a challenge to call on a new government to live up to the commitments made by a previous government – particularly when the previous government never lived up to them themselves. But how likely is it that we will see an entirely new process for specific claims; one fashioned by the Liberals? And if this were the case, what of the Tribunal – surely, we do not want to spend the next 4-5 years trying to design a new process only to find ourselves amidst another change in government? The ongoing cycle of elections has the tendency to get in the way of real, meaningful progress. We cannot let that happen.

As the co-chairs of the Chiefs Committee on Claims (CCoC), we would like to propose a strategy for moving forward with a new Liberal government to finally resolve (i.e., settle) the backlog of specific claims. A key component in this regard is the Tribunal – and the re-appointment of Justice Slade is an urgent priority – but the broader priority remains an open, transparent, and collaborative process with First Nation claimants to settle specific claims. Like the broader objective of ‘reconciliation’, resolving specific claims must not be framed from a standpoint of winners and losers. While it is reasonable to assume that some specific claims will not be resolved to the satisfaction of a claimant, the objective of resolving a specific claim must be shared by both a claimant and the Crown. That is, the objective of reconciliation is achieved with respect to a specific claim when both (all) parties are seized with the objective of reaching a ‘settlement’.

Crazy as it seems, it appears that the primary objective of the former government was not ‘settlement’, per se, but moving claims off of their books. It was on this basis that federal officials were able to suggest that they had cleared the entire backlog of more than 600 claims after only three years – while, in fact, they had outright rejected or euphemistically

‘closed’ the vast majority of them. In any case, the backlog has not been cleared, and there remains an urgent need to re-examine these claims, along with new ones that have been filed, with a view to reaching a true negotiated ‘settlement’.

The broader priority remains an open, transparent, and collaborative process with First Nation claimants to settle specific claims.

While the process for doing so remains to be determined, there are many guideposts that can assist the new government in doing this properly. The AFN’s independent Expert Panel made a number of recommendations about how to move forward in 2015, and foremost among these was the need to “…re-establish an ongoing joint discussion table at which First Nations and Canada work in partnership to assess and improve the progress of the claims system…” (p. 6). Others have highlighted the urgent need to restore funding – for research, for negotiations, for accessing the Tribunal, for the Tribunal itself – and to do away with Judicial Review as a means to undermine claimants and the Tribunal, leaving it only for its intended purposes (and to provide funding in this regard). Finally, as we have already noted, the most urgent priority relates to re-appointing Justice Slade prior to the expiry of his term on December 14, 2015, and then to also appoint other qualified justices to the Tribunal to deal with the caseload that has accumulated as a result of federal malfeasance under the previous federal administration.

These issues are urgent, and we hope that you will work with us to support the longstanding resolution of specific claim settlements.

Chief Maureen Chapman is the Hereditary Chief of Skawahlook First Nation. Among her many activities, Chief Chapman is a member of the Sto:lo Nation Chiefs Council, and cochair of the AFN Chiefs Committee on Claims.

Chief Harry St. Denis is the Chief of Wolf Lake First Nation. A seasoned politician and longtime champion for the rights of his people, Chief St. Denis is a member of the Algonquin Nation Secretariat, and co-chair of the AFN Chiefs Committee on Claims.

The State of Claims newsletter aims to provide a new forum for ongoing information and updates about specific claims related issues across the country.

Submissions from members of the claims community are welcomed, subject to the following guidelines:

• Focus or topic relevant to the claims community• 500-800 words (or by prior agreement)• MS Word or equivalent

Articles must be submitted by April 15, 2016 with your name, affiliation and contact details to Johanna Jimenez-Pardo (jjpardo@afn.ca). Articles will be selected based on merit and will be subject to editorial review.

Chiefs Committee Co-Chairs propose strategy for moving forward

Continued from page 1and other constructive agreements.

47. We call upon federal, provincial, territorial, and municipal governments to repudiate concepts used to justify European sovereignty over Indigenous peoples and lands, such as the Doctrine of Discovery and terra nullius, and to reform those laws, government policies, and litigation strategies that continue to rely on such concepts.

51. We call upon the Government of Canada, as an obligation of its fiduciary responsibility, to develop a policy of transparency by publishing legal opinions it develops and upon which it acts or intends to act, in regard to the scope and extent of Aboriginal and Treaty rights.

52. We call upon the Government of Canada, provincial and territorial governments, and the courts to adopt the following legal principles: (i) Aboriginal title claims are accepted once the Aboriginal claimant has established occupation over a particular territory at a particular point in time. (ii) Once Aboriginal title has been established, the burden of proving any limitation on any rights arising from the existence of that title shifts to the party asserting such a limitation.In short, there’s a lot to do to live up to

these recommendations.

“As Minister of Indigenous and Northern Affairs, your overarching goal will be to renew the relationship between Canada and Indigenous Peoples. This renewal must be a nation-to-nation relationship, based on recognition, rights, respect, co-operation, and partnership...”

And, finally, and most pertinent to our new Minister of Indigenous and Northern Affairs – Dr. Carolyn Bennett – the Prime Minister publicly issued his mandate to her on November 13 of this year, and in so doing reflected that: “As Minister of Indigenous and Northern Affairs, your overarching goal will be to renew the relationship between Canada and Indigenous Peoples. This renewal must be a nation-to-nation relationship, based on

recognition, rights, respect, co-operation, and partnership. I expect you to re-engage in a renewed nation-to-nation process with Indigenous Peoples to make real progress on the issues most important to First Nations,(…)”

We look forward to this taking place and, more specifically, need to set out some of the priorities based on concerns raised by First Nations over the past several years:

1. The most urgent priority relates to the re-appointment Justice Harry Slade prior to the expiry of his term as chair of the Specific Claims Tribunal Canada (SCTC) on December 14, 2015. In addition, there is also an urgent need to appoint other qualified justices to the SCTC to deal with the caseload that has accumulated.

2. There is a critical need to provide/restore funding to all stages of the specific claims process – for research, negotiations, accessing the Tribunal, the Tribunal itself, and for judicial reviews.

3. We also need to work with the Prime Minister and the Minister in Indigenous and Northern Affairs to address issues that remain unaddressed, such as a fair and transparent process for claims over $150M, developing and committing to engage in truly independent mediation in the negotiation and resolution of specific claims, and restoring an independent Registry of the Tribunal.

4. Finally, we need to re-establish an ongoing joint discussion table at which First Nations and Canada work in partnership to assess and improve the progress of the claims system, as set out as the key recommendation of the AFN’s independent Expert Panel on the five year review.

With due attention to these fundamental issues currently affecting the claims landscape, there may in fact be true promise in what is yet to come under a new government. Working in collaboration with the Chiefs Committee on Claims (CCoC), the broader claims community, and the National Chief and Executive, we will advocate vigorously to ensure that these issues are addressed by the new federal government.

Tonio Sadik is Director at AFN. He holds a PhD from Simon Fraser University (2008) and teaches in the Faculty of Social Sciences at the University of Ottawa.

Optimism for new government and its potential impact on the state of claims in Canada

Continued from page 1

Fall 2015 3

THE STATE OF CLAIMS IN NUMBERSToday, we stand in a different

political context from the one we were at when the last issue came out a year ago. At that time, the 5-year legislative review was on the horizon and the narratives from First Nations and the Government of Canada regarding the ‘success’ of Justice at Last remained divergent. A series of analyses conducted on the state of claims before and after Justice at Last found that the claims process had shifted from settling nearly half of the processed claims to settling only 15% of processed claims. Any statements about the process becoming more “efficient” can only be made if it is acknowledged that the efficiency

comes at the expense of reaching positive settlements for First Nations.

Similarly, given that both policies - Outstanding Business (1982) and Justice at Last (2007) - had at that point processed a similar number of claims (543 and 572, respectively), the question was raised: if establishing the Crown’s legal obligation to First Nations is based on facts – legal and historical facts - how can a shift in policy result in such a significantly higher proportion of claims being rejected on the basis that the Crown had no legal obligation to the claimant First Nation? While some variation is to be expected, a change in policy

11%

23%

No Legal Obligation

37%

File Closure19%

Settled10%

AFN'S SNAPSHOT OF CLAIMS STATUS Nov, 2015

66% Concluded

* Rejected claims includes claims deemed as ‘No Legal Obligation’ and ‘File Closed’

BREAKDOWN OF 572 CONCLUDED CLAIMS POST-OCT. 2008September, 2014

BREAKDOWN OF 616 CONCLUDED CLAIMS POST-OCT. 2008November, 2015

should not result in such a major difference.

This latest analysis will serve as a benchmark for comparison against the future processing of claims. The graphs show that from October 2008 through to November 2015 there were 616 “concluded” claims under Justice at Last, with 519 (84%) rejected and only 97 (16%) settled. Rejected claims include those claims categorized as “closed files” and where Canada found “No Legal Obligation” (NLO). Further analysis of the “concluded” claims indicates that 57% of the rejected claims are NLOs and 27% are “closed files” - the same proportions as found in September

2014.Not surprisingly, the number of

claims going to the Specific Claims Tribunal continues to rise and is only expected to increase. The tribunal is facing a rapidly growing case load with fewer resources. As a result, the pillars of Justice at Last have been turned into challenges to be overcome, the “building blocks” of a fair claims process are now obstacles.

This analysis presents a snapshot of the problem First Nations and the new federal government need to resolve to realize a truly fair, transparent and accountable claims process.

Fall 2015 4

Lake Babine Nation v Her Majesty the Queen in Right of Canada 2015 SCTC 5 Case Summary

In this decision, Justice Slade of the Specific Claims Tribunal (“Tribunal”) found that the Crown did not breach its legal obligations when it failed to ensure that 128 acres of land at Topley Landing, on the shore of Babine Lake just south of the Fulton River (“Claim Lands”), were ultimately set aside as a reserve for the benefit of the Lake Babine Nation (“LBN”).

In this Claim LBN alleged that the Crown breached its fiduciary obligations through its “non-provision of reserve lands.” In particular, LBN argued that the Crown failed to ensure that lands both north and south of the Fulton River were reserved for LBN and failed to challenge a settler’s unlawful application to purchase the lands to the north.

Despite the fact that the Royal Commission on Indian Affairs (“Royal Commission” or “McKenna-McBride Commission”) allotted LBN a reserve south of the Fulton River; the Tribunal found the Crown had acted in LBN’s best interest in creating a reserve north of the Fulton River. The Tribunal concluded that the Royal Commission did not intend for lands on both sides of the Fulton River to be reserved. Instead, the Tribunal reasoned that the Royal Commission allotted the land south of the Fulton River because the land north of the Fulton River was not available in 1916 due to a settler’s application to purchase. When the lands north of the river became available, the “contingency” of the lands to the south was no longer needed.

I. Background Facts

LBN people traditionally and historically used and occupied land on both sides of the Fulton River on the shore of Babine Lake. This is confirmed by LBN oral history and from Hudson Bay Company journals circa 1800s which referred to the Babine village of “Tatchy” on the bank of Babine Lake.

In October 1909, a settler named James Cronin applied to purchase 640 acres of land north and south of the Fulton River on the shore of Babine Lake. Cronin swore a statutory declaration stating that the lands he sought to purchase were not part of an Indian Settlement; however, the survey he commissioned for the lands north of the Fulton River noted evidence of an Indian Settlement, including “Indian shacks” and a trail to Babine Lake. The Tribunal referred to Cronin’s application

as being “of questionable validity.” In July 1915, the Royal Commission,

which had been established to resolve issues about lands that were to be transferred from the Province to Canada to be set aside as reserves for the benefit of the Indians, visited Hazelton. Charlie Pice, an LBN member, testified before the Royal Commission that he and his family lived north of the Fulton River and, while none of the Indians lived on the south side of the river, they used those lands for harvesting timber for firewood, lumber, and to build houses and canoes. Mr. Pice shared with the Royal Commission a 1913 Pre-Emptor’s Map that showed an existing Indian Reserve south of the Fulton River. Mr. Pice stated that a reserve had been put there “because we asked for timber land there.” When the Commissioners asked why he hadn’t asked for a timber reserve on the north side of the Fulton River, Mr. Pice replied “I thought this land was mine because my grandfather and father used to live there, and I thought I owned it.”

In November 1915, the Royal Commission wrote to the Province asking it to withhold certain lands from alienation pending the Commission’s final decision on the lands that were to be reserved for LBN. In particular, the Commission asked that 3 lots, one north and two south of the Fulton River, be “withheld from alienation.”

The Province advised the Royal Commission that the lot north of the Fulton River was covered by Cronin’s application to purchase, but that the other lots to the south were vacant and that “no disposition would be made of the vacant lands…until such time as the Royal Commission on Indian Affairs has arrived at a final decision in the matter.” The Province then informed the local government agent that several lots had been applied for on behalf of the Indians by the Royal Commission, and instructed that in the event of any of the applications to purchase were abandoned “none of the lots covered thereby nor any of the lots vacant at the present will be available for any alienation until such time as the Royal Commission has rendered a final decision in the matter.”

On May 30, 1916, the Royal Commission issued a Minute of Decision (“MOD”) recommending that one of the lots consisting of 128 acres of land (more or less) south of the Fulton River, be reserved for LBN. In 1923 and 1924 Canada and the Province confirmed the

Royal Commission’s allotment of a reserve consisting of 128 acres south of the Fulton River, and issued Orders in Council (“OICs”).

In the meantime, in January 1927, the lot north of the river, which had been Crown granted to Cronin, reverted to the Province because he had not paid his taxes.

In April 1927, the Department of Indian Affairs (“DIA”) instructed a surveyor to survey a reserve for LBN south of the Fulton River. Despite DIA’s instructions, in May 1927, the Province told the surveyor to survey the reserve north of the Fulton River.

The local Indian Agent, apparently unaware that the lands south of the Fulton River had not been surveyed as a reserve, encouraged LBN members to build houses there, and they did so. However, by the 1930s, provincial officials were seeking to remove LBN members (including Daniel Leon and his family) from the Claim Lands. DIA officials investigated the situation. In 1931, the then Indian Agent recommended that DIA purchase the lands south of the Fulton River, since the previous Indian Agent had “apparently in error” told the Indians it was reserved. The recommended purchase did not occur.

In May 1940, the new Indian Agent reported to the Indian Commissioner about the Indians’ historic and present use of the lands south of the Fulton River and asked whether the occupied land could be obtained as a reserve. The Indian Commissioner wrote to the Province proposing that the lands south of the Fulton River be purchased for LBN; the Province again refused.

The Indian Commissioner decided that, if the Province tried to evict the LBN members from the Claim Lands, DIA could (as a last resort) attempt a stay of action if it could show continuous possession of the Claim Lands by the present occupants and their ancestors for 60 years. In 1948, several of the LBN residents at Topley Landing (Daniel Leon, Rosie Leon, Paddy Leon, and Jim Charley) swore Statutory Declarations in support of their claim of continuous residence on the Claim Lands for over 60 years.

The Province did not attempt to formally evict the residents, and as a result DIA did not bring a stay of action. However, LBN members living on the Claim Lands remained vulnerable to harassment and continued use of the lands by non-Indians. Once Daniel and Rosie Leon passed away

in the 1960s, Topley Landing gradually emptied. Today, no LBN members live on the Claim Lands and they are not a reserve.

II. The Tribunal’s Findings of Fact

A. Occupation of the Claim Lands

The Tribunal found Mr. Pice’s evidence given to the Royal Commission to be the “best evidence” and concluded that the evidence, considered in its entirety, did not support LBN’s assertion that it occupied the Claim Lands between 1915 and 1927. The Tribunal also concluded that LBN’s “traditional use and occupation” of the lands south of the Fulton River would not have been apparent from the information provided to the Commission.

What is, unfortunately, not reflected in the Tribunal’s recitation of the facts or its findings of fact are the several statements included in the record from DIA officials who investigated the situation in the 1930s and 1940s and commented on the fact that LBN members were born on the Claim Lands and had camped there for many years before buildings were erected. DIA officials themselves referred to LBN having occupied the land in good faith and with justification, and that by virtue of their long established residence, and the Royal Commission’s MOD, have a “very strong claim” to the lands south of the Fulton and should be allowed to continue in occupation.

The Statutory Declarations provide similar evidence. The Tribunal, however, noted that the Statutory Declarations could not be reconciled with Mr. Pice’s evidence.

B. The Royal Commission’s Intention

The Tribunal concluded that the Royal Commission had no intention to allot lands on both sides of the Fulton River. Instead, the Tribunal found that the only reason three lots straddling both sides of the river were initially indicated to be protected as a reserve was “to ensure some land remained available for allotment as reserve when the time came for a final decision, and to keep alive the possibility of allotting the land north of the river on which the Indians actually resided.” In this way, the Tribunal viewed the allotment of

Continued on page 5

Fall 2015 5

Lake Babine Nation v Her Majesty the Queen case summaryContinued from page 4

lands south of the Fulton River, as a type of “contingency” reserve.

As for the Royal Commission’s MOD which recommended an allotment of 128 acres of land south of the Fulton River, the Tribunal concluded that it was unlikely that had the land north of the Fulton River been available in 1916 the Commission would have allotted both it and the land south, as this would have doubled the stated acreage.

The Tribunal concluded that the surveyor surveyed the land north of the Fulton as a reserve because this land had suddenly become available (following the settler’s default on his taxes), this is where LBN members had their homes, and this was the land the Royal Commission would have allotted but for the settler’s application to purchase those same lands. The Tribunal concluded that (notwithstanding the MOD and the OICs) the creation of a reserve north of the Fulton River “gave effect to the intention” of the Royal Commission.

III. Tribunal’s Legal Analysis and Conclusion

In the context of reserve creation, the Crown’s fiduciary duty arises when there is: (1) a specific or cognizable Indian interest; and (2) a Crown undertaking of discretionary control over that interest.

In Canada v Kitselas, the Federal Court of Appeal upheld the Tribunal’s decision that, in the context of claims based on Crown duties related to reserve creation, Indians have a cognizable interest in the lands they habitually used and occupied.

In this Claim, the Tribunal did not accept a key element of LBN’s arguments, namely that the Royal Commission itself had recognized LBN’s cognizable interest in land on both sides of the Fulton River and had acted to protect that interest. Instead, the Tribunal concluded that when the Commission asked the Province to withhold from alienation the lots north and south of the Fulton River pending the completion of its work “this was not in recognition of an Indian interest, as no such interest was apparent. No-one lived there. It did this to ensure that land would remain available pending the further work of the Commission.” In so doing, the Tribunal adopted a narrow characterization of what constitutes a cognizable Indian interest in land, focussing on lands occupied by the Indians as a residence, as opposed to also looking at lands the Indians used and depended on for their livelihood.

In addition, the Tribunal focused on whether LBN’s use and occupation of the land would have been apparent to Crown officials and the Royal Commission at the time the decision was being made to allot a reserve. The Tribunal noted that despite the evidence of LBN’s “traditional”

use and occupation based on its oral history and HBC journals, there was no evidence before the Royal Commission in 1915 of current, recent or visible Indian occupation of the land south of river.

LBN had also argued that use and occupation aside, the lands south of the Fulton River were a provisional reserve (as that term is used in Wewaykum) because of the OICs, and thus automatically gave rise to Crown obligations of loyalty, good faith, and full disclosure. The Tribunal concluded that, even if the Claim Land were a provisional reserve, the Crown had met its obligations here, as both governments acted in LBN’s best interest in creating a reserve north of the river, since this was where LBN members lived. This reasoning again rests on the Tribunal’s view that it was not contemplated that land on both sides of the river would be constituted as reserve lands; but that instead the lands south of the river were “contingency” lands to be held only until the lands to the north became available. In other words, the Tribunal saw nothing wrong with the Crown substituting a 116 acre reserve north of the river for a 128 acre reserve south of the river.

As to the complaints raised by LBN in the period following 1928, the Tribunal ruled that it was “unfortunate” that the Indian Agent had misinformed LBN members that the lands south of the Fulton River were reserved, but this

was not intended to mislead. DIA tried to secure the Claim Lands for the LBN members living there, but it was the Province that blocked those efforts. Accordingly, the Tribunal did not find a breach.

IV. Potential Implications

The Tribunal’s decision in this claim is very specific to its facts, and to what the Tribunal determined to be the best evidence. The Tribunal’s decision does, however, raise certain questions, including:

• What is needed for First Nations establish their specific or cognizable interest in land?

• How are the “intentions” of the Royal Commission discernable?

• What is the significance of a MOD recommending that certain lands be allotted as reserves?

• What is the significance of an OIC confirming the allotment of reserves?

LBN has until mid-November to apply for judicial review in the Federal Court of Appeal.

Photos from the 23rd annual National Claims Research Workshop - October 2015

Cornhusk doll created by Elizabeth Doxtater from “Everything Cornhusk” was given to conference presenters as a thank you gift. The headdress represents a Nation within the Six Nations of the Grand River Territory.

A surprise keynote speaker, Stan Jonathan shares stories of his playoff days with the NHL Boston Bruins.

2015 National Claims Research Workshop Planning Committee.

Photos by Jody Woods

Mandell Pinder LLP Barristers & Solicitors 422 - 1080 Mainland Street Vancouver, BC V6B 2T4 Telephone: 604-681-4146

Regional Chief Craig Makinaw was elected to his position as Regional Chief of Alberta on May 22, 2015. At the meeting of the AFN National Executive in late November, National Chief Perry Bellegarde announced the appointment of Regional Chief Makinaw to the Specific Claims portfolio and, by extension, the Chiefs Committee on Claims. We look forward to working with Regional Chief Makinaw at this critical moment of engaging a new federal government.

This year’s workshop was attended by about 75 delegates and featured a number of specialized sessions delivered by honoured speakers who are experts in their respective fields.

New Specific Claims Portfolio Holder

Fall 2015 6

Access to Information Working Group formed to assist members of the specific claims research community

By Jody Woods, UBCIC & Aaron Asselstine, AFN

The Access to Information (ATI) Working Group is an informal, coalition formed in early 2015 by members of the Specific Claims Research Community from across Canada and the Assembly of First Nations.

Access to Information in the Resolution of Specific Claims

The Working Group developed as a response to our experiences trying to obtain timely and accurate information critical to the work of First Nations and organizations who are involved in seeking the fair, just and timely resolution of specific claims. This includes using ATI to obtain documents necessary for the research and submission of specific claims, particularly archived and active documents produced by what is now called the Department of Indigenous Affairs and Northern Development (INAC).

The Working Group also uses ATI to further the efforts of the claims community to advocate for specific claims policy reform. To this end, members of the Working Group make ATI requests for policy documents, communications, reports, contracts and instructions related to specific claims policy and its implementation. Many of the documents received have proved valuable and have contributed to the development of media releases, open letters, public submissions and reports such as the joint Research Directors report In Bad Faith: Justice at Last: Canada’s Failure to Resolve Specific Claims and First Nations submissions to the Five Year legislated review of the Specific Claims Tribunal Act.

Unfortunately, under the former Conservative Government of Canada, obtaining government documents and information in a complete and timely manner has been challenging. ATI requests routinely take significantly longer than the 30 days mandated by federal legislation, and in many cases return documents that are heavily blacked out or redacted. Canada’s independent federal Information Commissioner responsible for ensuring the proper functioning of the ATI process has expressed concern on numerous occasions regarding the Canadian government’s approach to information access. In particular, the Commissioner has noted that Canada consistently fails to meet legislated deadlines, inappropriately uses redactions, and fails to adequately fund ATI infrastructure which has led to a backlog of requests and appeals in the system.

Tips on how to submit an Access to Information Request

Certain privacy provisions can be waived when seeking documents pertaining to Indigenous land rights research if authorisation is provided in the form of a Band Council Resolutions (BCRs). An 8(2)k form (Request for Personal Information by Aboriginal Claims Researchers) is also required.

The Working Group developed as a response to our experiences trying to obtain timely and accurate information critical to the work of First Nations and organizations who are involved in seeking the fair, just and timely resolution of specific claims.

Submitting an ATI request is not difficult. It only costs five dollars, and requires that you know what information you want to request, and from which department. Here are some considerations:1. You can submit a request online or by

letter through the mail;2. You can request that documents

be sent to you either in paper (you may be charged a printing cost) or electronically.

3. Once you have submitted, your request goes to the appropriate federal department’s ATI office. An ATI officer in that department will review the departmental files and return any results.

4. To get the best results, the wording of your request must be specific and clear.

5. Sometimes a department’s ATI officer will contact you to clarify the wording or scope of a request. This is a normal part of the process and can actually assist you in getting the documents you need. The Working Group recommends that you build good working relationships with ATI officers and be accommodating without compromising the nature of your requests.

6. If you are requesting correspondence between departments, consider making separate requests to each department. Officers redact according to their own interpretations of the statue. Different officers sometimes redact documents differently. Also consider requesting correspondence logs so that you can compare correspondence you receive with correspondence produced by the department in question.

Important Information: Reviewing Records

It is imperative that records received in response to ATI requests are reviewed quickly. This is because there is a 60 day deadline within which appeals or complaints can be filed if you feel that the Access to Information Act has not been applied appropriately. The Working Group has found that a majority of records received contain at least some questionable to egregious issues. These can include: • Refusal to release materials • Heavy redactions when materials are

released• Documents deemed “not relevant” or

“out of scope”• Frequently cited/over use of sections

of the Access to Information Act:• Cabinet Confidences (excluded

from ATIA)/ Section 21 (advice)/Section 23 (solicitor-client privilege)

• Exclusion of email attachments, etc.As we learn more about how to navigate

the ATI process, the Working Group hopes to share useful tips and information with the wider claims community.

Lodging Complaints and Making Follow up Requests

If you feel records you received do not correctly apply or conform to the Access to Information Act, it is important to lodge a complaint to the Information Commissioner. This is to ensure the government is properly applying the Act and to have proper access to the material you require to advance claims. The process to lodge a complaint can be found here. Members of the Working Group would be happy to discuss this with you.

If the documents you receive reference new relevant materials or give rise to additional questions, consider filing a follow up request. Follow-up requests are treated as new requests and will be assigned new file numbers by the department in question, but you can reference the original documents you received and provide copies of relevant pages. Providing this level of detail should speed up the process.

Resources

The Working Group holds regular meetings via teleconference, and has developed a variety of online approaches and tools used to store and review ATI materials. This work includes an ATI Dropbox Account available to all members of the ATI Working Group, a system of storage that ensures the status of each ATI request is properly maintained, and the development of best practices regarding ATI submissions and challenges. We are committed to sharing this material online and hope to be able to upload all ATI related materials to the First Nations Digital Document Sources (FNDDS) a national collection of electronic documents used primarily for research in land claims and First Nations issues.

Want to Join the Working Group?

The Working Group is open to members of the First Nations claims community, and seeks to develop more efficient and strategic approaches to analysing and submitting ATI documents and requests. Please contact Aaron Asselstine for more information: AAsselstine@afn.ca.

Jody Woods is the Research Director at the Union of BC Indian Chiefs.

Aaron Asselstine is a policy analyst at the Assembly of First Nations. His portfolio includes work on addition to reserve and specific claims.

Please email Aaron Asselstine at aasselstine@afn.ca if you would like to contribute specific dates about any upcoming event that may be of interest to the community.

DECEMBER 2015• December 3, 2015, The First

Session of the 42nd Federal Parliament Opens

• December 4, 2015, Speech from the Throne

• December 8-10, 2015, Assembly of First Nations Special Chiefs Assembly, Gatineau, Quebec

• December 11, 2015, The First Session of the 42nd Federal Parliament will adjourn for the winter break

January 2016 • January 25, 2016, The First

Session of the 42nd Federal Parliament resumes

February 2016• February 3, 2016, Notice of

Hearing: Tsleil-Waututh Nation (Claimant) v. Her Majesty The Queen In Right Of Canada (Respondent) – hearing to be held for a duration of 2 days

• February 8, 2016, Notice of Hearing: Huu-Ay-Aht First Nation (Claimant) vs. Her Majesty The Queen In Right Of Canada (Respondent) – hearing to be held for a duration of 5 days

April 2016• April 11, 2016, Notice of

Hearing: Tobacco Plains Indian Band (Claimant) vs. Her Majesty The Queen In Right Of Canada (Respondent) – hearing to be held for a duration of 5 days

• April 19, 2016, Notice of Hearing: Huu-Ay-Aht First Nation (Claimant) vs. Her Majesty The Queen In Right Of Canada (Respondent) – hearing to be held for a duration of 3 days

• April 25, 2016, Notice of Hearing: Tsleil-Waututh Nation (Claimant) vs. Her Majesty The Queen In Right of Canada (Respondent) – hearing to be held for a duration of 5 days

May 2016• May 11-13, 2016, Thunder Bay

Ontario: Archivist Conference hosted by Archives Association of Ontario and the Association of Manitoba Archives

For information on AFN activities and events,

visit www.afn.ca

Click here to view Frequently Asked Questions about Access to Information and Privacy (ATIP) Online Requests.

Fall 2015 7

Specific Claims Tribunal Canada UpdateBy Alisa Lombard, Legal Counsel, Specific Claims Tribunal Canada

The former Minister of Aboriginal Affairs and Northern Development Canada initiated the Specific Claims Tribunal Act (SCTA) review process under section 41 of the SCTA on October 16, 2014. The five-year review functionally commenced when the Minister’s Special Representative (MSR) was appointed and began consulting with stakeholders.

The MSR met with the Tribunal twice. The Tribunal was invited to make a submission. The Tribunal understood that stakeholders had concerns relating to the expediency, cost-effectiveness and efficiency of proceedings. The Tribunal’s submission (available on the Tribunal’s website at: http://www.sct-trp.ca/pdf/Submission%20SCT%20May%2015%202015.pdf includes recommendations addressing the process, the Act and efficiencies that may be introduced under the Tribunal’s Rules of Practice and Procedure.

The Tribunal convened the advisory committee on July 23, 3015 under section 12(2) SCTA to advise on the development and application of a summary trial process. A summary trial is a process by which appropriate claims may be heard faster and with less cost for both parties. Fundamental principles of natural justice and the distinctive nature of specific claims make it necessary to exercise particular caution in crafting a fair and just summary trial process.

Advisory committee participants recommended, and the Tribunal agreed to, circulating a draft practice direction for commentary. A draft practice direction was circulated on November 2, 2015 requesting that stakeholders forward their comments by November 30, 2015.

The draft practice direction contemplates a summary process by method of application to the Tribunal. Either the Claimant or the Respondent can initiate an application for summary trial at any time before a notice of hearing has been issued, or with leave from the Tribunal after a notice of hearing has been issued.

The summary trial application process is commenced by filing a notice of application that sets out the facts and a summary of the evidence on which the applicant relies to demonstrate that there are genuine issues for trial and that a summary trial is appropriate. The parties cannot rely on what may be advanced as evidence later in the proceedings.

Both the applicant and the respondent must certify, to the best of their knowledge, that: (a) full [or satisfactory] disclosure to the Claimant of all relevant materials in

the possession and control of the Specific Claims Branch has been made; (b) there shall be no obstacles to the Tribunal considering materials

prepared after the claim was presented to the Specific Claims Branch, including but not limited to joint reports;

(c) claims of privilege under section 13(1)(b) of the Specific Claims Tribunal Act are preserved and kept whole should the claim proceed to a full hearing on the merits; and,

(d) the evidentiary base is adequate in the estimation of the Applicant for a final or partial determination of the claim.

The respondent to the application must respond no later than 10 days after the notice of application is served on the other party and filed with the Tribunal.

After the notice of application and response to the notice of application for summary trial are filed, the Tribunal makes a decision as to whether the claim will proceed on a summary basis.

The Tribunal will Order that a summary trial proceed if it is satisfied that: (a) there is a genuine issue for trial; (b) the claim is justly and expeditiously dealt with by summary trial; (c) full [or satisfactory, sufficient] disclosure has been made to the Claimant

of all materials relevant to the claim in the control and possession of the Specific Claims Branch;

(d) claims of privilege under section 13(1)(b) of the Specific Claims Tribunal Act are preserved and kept whole should the claim proceed to a full hearing on the merits;

(e) there shall be no obstacles to the Tribunal considering materials prepared after the claim was presented to the Specific Claims Branch, including but not limited to joint reports; and,

(f) the evidentiary base is adequate in the opinion of the Tribunal for a final or partial determination of the claim.

The Tribunal will not order a summary trial in the claim if it is not satisfied with the parties certifications in respect of (a) to (f) above; if it thinks that the issues are not suitable for summary trial; or, if the summary process would not assist in the efficient and final resolution of the Claim.

The Tribunal can convene a case management conference at any time before it decides whether to order a summary trial. If a claim is not ordered to proceed to summary trial, the parties may not apply for a summary trial again without permission from the Tribunal.

If a summary trial is ordered after evidence has been filed with the Tribunal, and a party wants to rely on particular types of evidence, that party must advise the other parties, intervenors and entities to whom a notice has been issued under section 22 of the SCTA of that fact.

No later than 30 days after the Tribunal orders a summary trial, the Applicant files their Record, which must include:

(a) a memorandum of fact and law in a specified format;(b) admissions;(c) all evidence, including expert reports; and,(d) the cases on which they rely to make their argument.

The Respondent’s record must include the same information. The parties jointly file a series of other documents. After all these documents are filed, no further documents may be filed without permission from the Tribunal.

The Tribunal can make any order required for the conduct of a summary trial, including an order requiring an expert who has provided the parties, individually or jointly, to attend for cross-examination before the Tribunal.

A Judge who makes an order under the summary process practice direction in relation to a summary trial application is not seized of the summary trial.

In a decision on the claim, the Tribunal may make any order necessary for the disposition of the claim, including an order:

(1) making a finding on the validity of the claim (2) if the claim is found valid, directing proceedings to determine the

amount of compensation to which the claimant is entitled under section 20 of the SCTA

(3) directing a hearing on outstanding issues while: (a) specifying which material facts are not in dispute (b) defining the issues to be tried (c) limiting the nature and scope of examinations to matters not already

decided; and/or,(4) awarding costs.

The Tribunal may render a decision on all or any matter in issue on summary trial. The presiding member may at any time direct that a claim in the summary trial process be remitted for the application of all or any pre-hearing and hearing processes.

The Tribunal may, before a summary trial, vary or set aside an order made under the summary process practice direction.

The Tribunal is currently awaiting comments on its proposed summary trial process practice direction. Once comments are received and analyzed, the Tribunal may reconvene the advisory committee to discuss potential improvements to the draft practice direction before its issuance in final form.

www.sct-trp.ca