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First Nations claims process slow and ineffective; information on progress ‘incomplete,’ says AG

By Marco Vigliotti      

Public reports from Indigenous and Northern Affairs Canada exclude some 'negative results' of the claims process, says the auditor general's office.

Auditor General Michael Ferguson, whose office tabled a report Tuesday lambasting the federal government's handling of the First Nations land claims, says that the past decade of auditor general reports show that government programs have 'failed to effectively serve Canada’s indigenous peoples.'
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Reforms to the First Nations land claims management process have created additional barriers to reaching settlements, while incomplete reporting and sparse information have left Canadians and Parliamentarians in the dark, according to a new report from the auditor general’s office.

The changes to the federal land claims process also failed to encourage negotiations between First Nations and the Crown, while funding cuts and limited information sharing between the federal government and indigenous communities further hindered progress, the report says.

“We found that Indigenous and Northern Affairs Canada’s public reports were incomplete and did not contain the information needed to understand the actual results of the specific claims process,” reads the report prepared by Auditor General Michael Ferguson.

“More specifically, the department did not publicly report some negative results of the process.”

The auditor general’s report looked at how the government has managed a new process created in 2008 for dealing with land and treaty-related claims made by First Nations, known in government parlance as “specific claims.”

In particular, the report highlighted how the department’s specific claims website, which includes both performance information and a searchable public report for information about individual specific claims, skewed some results, as it did not reveal the history of a claim before October 2008.

The report said it found that the average time to reach a settlement for the 38 claims it reviewed was approximately 11 years, but the department presented information in the searchable report in a way that showed the average time to be about 4.7 years.

It also found that one claim it reviewed was first submitted in 1987, with its processing time coming in at over 26 years before it was settled. However, the department’s database showed that the claim’s processing time was just under five years.

“In our view, Parliamentarians and Canadians have received an incomplete view of how long it takes for a claim to be processed,” reads the report.

The auditor general office’s recommended that the department “clearly report” complete information about the specific claims process to allow the government and Canadians to assess real results.

Mr. Ferguson, whose office also released a report Tuesday on the incarceration of indigenous peoples, said the results of numerous audits completed by the auditor general’s office over the past decade show that government programs have “failed to effectively serve Canada’s indigenous peoples.”

“Until a problem-solving mindset is brought to these issues to develop solutions built around people, instead of defaulting to litigation, arguments about money, and process roadblocks, this country will continue to squander the potential and lives of much of its indigenous population,” he said.

Indigenous and Northern Affairs Canada told the auditor general’s office that it’s currently working with the Assembly of First Nations to establish a process in which the government will work “collaboratively” with First Nations to identify fair and practical measures to improve the specific claims process, such as establishing “clearer terminology” and common understanding of what information is reported, according to the report.

Minister of Indigenous and Northern Affairs Carolyn Bennett (Toronto-St. Paul’s, Ont.) told reporters Tuesday her department accepted all the recommendations offered in the report on specific claims and would work to implement them.

“We are moving forward with the Assembly of First Nations, First Nations, and other interested parties in a true spirit of co-operation and renewal to find fair and practical ways to improve the specific claims process and advance the goal of reconciliation with First Nations,” she said in a press release, adding that the report will help “inform joint work that is already ongoing to improve the process that is in place for resolving specific claims.”

Discussions with the AFN and First Nations, she said, have been focused on the need for funding to support the research and development of claims, measures to resolve claims greater than $150-million, the use of mediation in the negotiation processes, and better clarity in public reporting.

However, NDP MP David Christopherson (Hamilton Centre, Ont.) vice-chair of the House Public Accounts Committee, which reviews and reports on auditor general reports, told reporters he has heard all three governments of the past 12 years—he has served on the committee since 2004—offer the same response to those sort of critiques, only to allow the problems identified to persist.

Something must change, and the government needs to act to ensure changes are implemented, he said.

“The government needs to understand that, certainly I, as a member of Public Accounts, will be doing everything I can to ensure that we’re bringing people back [before the committee] as often as we can” to see if the problems identified in the reports are addressed, Mr. Christopherson said.

Ms. Bennett noted the government had already taken action towards improving the process by allocating $2.5-million in new funding last month to support First Nations research, claims development, and the presentation of claims before the Specific Claims Tribunal.

First Nations have long complained about the federal government ignoring or failing to fulfill obligations set out in traditional treaties, prompting Ottawa in the early 1970s to establish a policy and process to resolve specific treaty claims without involving the courts. It was later refined in the 1980s.

Specific claims refer to those made by First Nations against the federal government relating to the administration of land and other assets, and the failure the fulfil treaty obligations.

Examples include the construction of a flood control dyke and road on a First Nation reserve without consent or compensation, the government withholding land promised in a treaty, and the sale of reserve land without consent from the relevant First Nation, the auditor general’s report said.

However, a 2006 Senate committee report found that the specific claims process was fraught with “delay” and so “ineffective” that it worked against the government’s objectives. The report, titled Negotiation or Confrontation, It’s Canada’s Choice, noted that the government still judged and determined compensation for claims made against itself.

The Senate report also said that the government had not addressed First Nations’ concerns regarding the independence of the process, and that the process was “confusing, complicated, time-consuming, expensive, adversarial, and legalistic.” The report recommended that the government establish an independent body to resolve specific claims, dedicate a settlement fund, and improve the claims resolution process by providing more resources.

According to the auditor general’s report, data from Indigenous and Northern Affairs Canada shows that by 2007 there were more than 800 specific claims outstanding in Canada, and that before 2007, it took an average of 13 years to resolve a specific claim.

In 2007, while under Conservative rule, Indigenous and Northern Affairs Canada introduced Justice at Last: Specific Claims Action Plan to address the claims backlog, settle specific claims through negotiation, and compensate First Nations for past damages associated with Canada’s outstanding lawful obligations. In return for compensation, First Nations agreed to never reopen those claims.

The action plan, which came into effect the following year, established the Specific Claims Tribunal, an independent body with authority to make binding decisions on claims and compensation of up to $150-million. The government, though, has a three-year window to assess a claim before a First Nation can access the tribunal.

The plan also pledged $250-million annually for 10 years to fund claim settlements, streamlined the approval process for claims valued at less than $3-million, and committed to establish mediation services to help reach a negotiated settlement.

The department was also required to report on the activities and results of the specific claims process.

But while the action plan envisioned more claims would be resolved than received each year, the auditor general’s report found that the department failed to achieve that goal in six of the eight years since it came into force. The report also found that of the claims that entered the negotiation process, more were either closed or moved to litigation in courts or at the tribunal than were resolved through negotiation, while the department only used mediation services once to overcome impasses since the services were made available in 2012.

The auditor general’s report recommends that Indigenous and Northern Affairs Canada collaborate with First Nations to review its systems and practices, to understand why the majority of claims are not settled through negotiation, and to improve the resolution of claims.

It also called on the government to work with First Nations to pursue a strategy that would see mediation used more frequently.

According to the report, the three most significant barriers that impeded the resolution of some specific claims were departmental practices discouraging negotiations, such as the department’s practice of deciding for itself how much compensation to award for small value claims; arbitrary and inconsistent funding to First Nations to research and prepare claims, which dropped by 40 per cent between 2013-14 and 2014-15; and limited information sharing between the department and First Nations.

In response, the department told the auditor general’s office that funding was cut because of the deficit reduction plan pursued by the then-Conservative government, the report says.

Now under new management, the department said it’s working to improve the specific claims process, including through the development of a “clear and consistent methodology for providing support for the research and preparation of claims.”

mvigliotti@hilltimes.com

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