Volume 38, Number 1: January/February 2004

Bill C-6: Land claims gutted

On the trail of broken promises, this one was a real beauty. Tom Siddon, Brian Mulroney’s minister of Indian Affairs, promised in 1990 to clear the backlog of Native land claims within 10 years. Today, not only has that backlog ballooned, but Canada’s sloth-like system of settling land claims is about to get a lot worse.

It’s all thanks to the Specific Claims Resolution Act, or Bill C-6, a little-noticed bill that slipped through Parliament in November, unnoticed amid the Liberal leadership succession soap opera.

Indian Affairs Minister Robert Nault has said Bill C-6 will make the Native land claims process “faster, fairer and more transparent” and clear the ballooning backlog of 771 “specific” land claims. (Specific land claims concern violations of treaties or federal obligations, while “comprehensive” claims cover broader self-government issues.)

At the existing rate, it will take until 2058 to settle the existing claims, and 60 new ones are being filed each year.

At first glance, Bill C-6 appears to 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, which only has the power to recommend that Ottawa reopen a case.

However, some of the country’s leading land-claims experts say that Bill C-6, far from being an improvement, actually disembowels the land-claims system and does 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 cell phone while traveling in Alberta.

The Assembly of First Nations has called for Bill C-6 to be scrapped. “My goodness, there are nearly 800 specific claims now before Canada,” says Phil Fontaine, newly elected national chief of the Assembly of First Nations. “It’s completely and absolutely unreasonable.”

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

Show Me the Money

The biggest concern with Nault’s land-claims reform, some say, 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.”

The lack of staff is a key reason for the growing mountain of claims. In the B.C. and Yukon region, for example, 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.

It may be hard to believe now, but back in the 1980s it took only one or two years to hear back from Ottawa after a land claim was filed, says Vancouver lawyer Stan Ashcroft. 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.

Claims Commission Concerned

The lack of new funds is not the only concern. Also galling is the fact that Bill C-6 will require a First Nation to agree to a $7-million cap before the new tribunal will 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 his 15 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.”

Although the Senate subsequently raised the ceiling to $10 million, with the bill quietly receiving royal assent after protests from Native groups in November, even the staid, government-appointed Indian Claims Commission, which does not have a settlement cap of any kind, 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 the original $7-million cap. The average was more than $26 million, well in excess of even the revised cap.

“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.”

Forced into Court

In a puzzling twist, the 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. Without access to the tribunal, most First Nations will only have one option left: suing Ottawa. But in B.C. and some other provinces, 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 ten times higher than settling a claim at the negotiating table.

As if that isn’t bad enough, Ashcroft says, Bill C-6 also includes 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. Out in the Cold

The new definition is especially harsh on B.C., home to the bulk of the country’s outstanding claims. First Nations there are in a unique situation because turn-of-last-century provincial leaders refused to sign treaties, preferring to grab land without compensation. No treaty, no claim, under Bill C-6 for stolen land. Meanwhile, the feds argue that many territories taken from B.C. First Nations weren’t reserves. 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 First Nations in B.C. and the rest of the country 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.”

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 of 330 claims is the worst of any province.

“The social costs of not settling these claims are enormous,” land-claims lawyer Alan Pratt argues. “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 issue is potentially explosive. Long-simmering specific claims presaged many of Canada’s worst conflicts over Native land during recent years, including Gustafsen Lake, Ipperwash and Oka. Hundreds of less-known cases are simmering across the country in which First Nations were fraudulently dispossessed of reserve land in the late 1800s and early 1900s to make way for European settlement.

Alex Roslin is an award-winning Montreal writer and associate producer for the CBC-TV investigative show Disclosure. Earlier this year he won a Canada Council grant to write a book about police officers who abuse their spouses.