Indigenous specific land claims in Canada

Relations between Indigenous peoples and European colonists have been characterized by breaches in the engagements the colonists made toward the First Nations. The Royal Proclamation of 1763 established that, from than point onward, only the British Crown could engage in treaties or agreements with the First Nations. These agreements include the peace and friendship treaties in the Maritimes, the 11 numbered treaties with the First Nations of part of Ontario, Manitoba, Saskatchewan, Alberta, British Columbia and the Northwest Territories, and many other regional treaties in southern Ontario and British Columbia.[1]

However, sometimes, the land promised by the treaties were never allocated. Other times, the government of Canada made illegal sessions of the land under the Indian Act, or employees at the Department of Indian Affairs fraudulently sold or leased reserve land for their own interests. In other cases, Indigenous groups were inadequately compensated for the sale or damage of reserve lands. The current Indigenous specific claims originate from these outstanding treaty obligations.[1]

Some first nation communities started to press their claims from the 19th and early 20th century. However, from 1927 to 1951, prosecuting indigenous land claims in court and using band funds to sue the federal government was prohibited, which left land claims largely ignored.[5] In 1947, a parliamentary committee recommended that Canada create a "Claims Commission" similar to the Indian Claims Commission in the United States, which was created two years prior in 1945. It was again recommended in 1959-1961 that Canada investigate land grievances of First Nations in British Columbia and in Kanesatake, Quebec.[1]

Canada started accepting specific claims for negotiations in 1973. A federal policy created the Office of Native Claims within the department of Indian and Northern Affairs to negotiate indigenous land claims. The policy also divided in these claims into two categories: comprehensive claims and specific claims. Comprehensive claims deal with the rights of indigenous people to their ancestral lands for traditional use. Specific claim, on the other hand, deal with specific instances breaches of the government's obligations toward indigenous communities.[1]

In 1982, nine years after the creation of the Office of Native Claims, only 12 out of the 250 claims filed with the government had been settled. Indigenous communities criticised the fact that the Office of Native Claims in Indian and Northern Affairs Canada was both evaluating and negotiating each claim, thus creating a conflict of interests. They instead called for the negotiation process to be run by an independent body.[1]

In 1992, the government of Canada created to Office of the Indian Claims Commissioner, whose job was to investigate claims that were refused for negotiations by the Office of Native Claims. However, the claims commissioners' powers were limited to issuing non-binding resolutions and thus was ineffective. In their annual reports, the claims commissioners often suggest the creation of a new independent body to oversee specific claims, which could impose binding resolutions on claims where Canada and the first nations cannot agree on fair compensation. This body came into existence in 2008, with the creation of the Specific Claims Tribunal, where independent Jurors assess the claims on a case-by-case basis.[1]

First Nation communities can start the specific claims process by submitting a claim to the federal government. These claims must meet the minimum standards for specific claims submissions as set out by the Department of Crown-Indigenous Relations, or they are immediately rejected, and must be filed again. If a claim meets these requirements, it enters a 3-year assessment period, where the government determines whether a breach has occurred or not. If the government determines there was no breach, the file is closed, and the first nation may modify their claim and re-submit it, or challenge the government's assessment in the Specific Claims Tribunal.[2]

When the claim is accepted for negotiations starts a 3-year timeframe for the negotiation period, where the government and the first nation try to agree on a fair compensation for the breach. The compensation is usually a monetary compensation, and does not typically include added land for the reserve. If no agreement is reached, the First Nation may submit their claim to litigation with the Specific Claims Tribunal.[2]

Here are examples of a few ongoing specific claims:

Atikamekw of Opitciwan

The Atikamekw of Opiticiwan filed four distinctive specific claims with the federal government, one related to the losses incurred by the flooding of their village in 1918 due to the construction of the La Loutre Dam and the Gouin Reservoir, one related to the delay in the creation of the reserve, one related to the size of the reserve, and a last one related to the raising of the dam which led to other floods in the 1940s and 1950s.[6]

Map of the planned Indian Reserve of Obijuan (Obedjiwan) in 1914

In 1912, the Chief Gabriel Awashish and his band of over 150 Atikameks settled on the land of present-day Obeydjiwan, on the coast of a lake of the same name. The area was surveyed in 1914 by surveyor Walter Russel White, in preparation for the creation of a reserve in the Area. The band was promised 3,000 acres (12 km²) for this reserve, but White surveyed only 2,290 acres (9.3 km²) of land. In 2016, the Specific Claims Tribunal ruled that the Crown made no serious efforts to give the first nation the 3000-acre reserve, and therefore should compensate the First nation for the 710 acres (2.9 km²) missing.[7]

In 1918, the end of the construction of the La Loutre dam resulted in a flooding destroyed the village of Obeydjiwan, including all of the band's houses and possessions. As early as 1912, the federal government knew that the dam would flood the village, yet they did not notify the band.[8] The compensations for these damages was delayed, and the some Atikamekw were not properly compensated, or not at all.[9] The reserve of Obeydjiwan was finally created in 1950. The 1950 reserve was 2,290 acres, and included land outside of the area proposed for the reserve in 1914 to compensate for the land that had been flooded in 1918. In 2016, the Specific Claims tribunal ruled that the delay for the creation of the reserve was too long, which resulted in loss of income from logging for the Atikamekw.[10]

In 2013, Canadian surveyor Éric Groulx testified in front of the Specific Claims Tribunal that surveyor W.R. White miscalculated the area of the land he surveyed in 1914, stating that the land surveyed had an area of 2,760 acres (11.2 km²) as opposed to 2,290 as was previously calculated. This error resulted in further errors when calculating the area of the land that was flooded in 1918, which was used to add land outside of the proposed reserve. The Specific Claims Tribunal therefore ruled that the First Nation was not properly compensated for the land lost in the flooding.[11]

The Specific Claims process has long been criticized by First Nations for multiple reasons, including the conflict of interest inherent in the government both assessing the claim and negotiating them, the slowness of the assessment process and the specific claims process in general, the impossibility of receiving land as compensation, the lack of transparency in Specific Claims funds allocations and the requirement to cede and surrender the land in order to get a compensation for it. The Assembly of First Nations (AFN) praised the creation of the Specific Claims Tribunal in 2008, that addressed some of these problems, but that many of the problems of the Specific Claims Policy were still left unsolved, especially regarding the extinguishment of indigenous rights.[3]

In 2018, the Fraser Institute published a report by conservative political scientist Tom Flanagan which concluded that first nation communities that received a compensation following the settlement of a specific claim did not score better on the Well-Being Index of First Nations than those who didn't. He argues that specific claims were essentially a multi-billion dollar liability for the government, while statistical evidence showed no positive impact to settling these claims. Flanagan also criticized changes made over the years to the specific claims policy to make it more accommodating to the First Nations, which he blames for creating ever-growing backlog of claims being filed every year. In order to settle all of the specific claims one and for all, Flanagan suggests the implementation of a deadline after which First Nations will no longer be able to file new specific claims. This would be akin to the United States' Indian Claims Commission's 10-year period to file claims, which allowed it to settle all of their indigenous land claims in under 40 years.[14][15]

In response to Flanagan's report, lawyers Alisa Lombard and Aubrey Charette of Maurice Law (Canada's only indigenous-owned law firm) published an opinion piece in which they said that the purpose of Specific claims is to bring justice to defrauded First nation communities, and is not a welfare program. Therefore, comparing the First Nation communities who settled a specific claim with those who didn't using the Well-Being Index is irrelevant to what the Specific Claims Process is trying to accomplish.[16]

A 2018 report by the British Columbia Specific Claims Working Group came to the conclusion that the federal government failed to comply by their legal obligation to assess claims in a 3 years period over 65% of the time. On average, the government finishes assessing the claims 5 months after the legislated deadline. In an open letter to Crown-Indigenous Relations minister Carolyn Bennett, the Union of British Columbia Indian Chiefs stated that this "Non-compliance with legislation enacted to protect the rights of Indigenous Peoples ... contradicts every public commitment your government has made regarding reconciliation". Stephan Matiation, director of the Specific Claims Branch at Crown-Indigenous Relations and Northern Affairs Canada, responded that his team is understaffed, which causes delays in the assessment of claims.[17]

• Maplewashing
• R v Marshall