Sources: feds ending negotiation on specific claims

APTN National News

Negotiators working for First Nations are telling APTN National News that Prime Minister Stephen Harper’s federal government is moving to cut off specific claims negotiations, a move that one source said could cost First Nations — and at the same time save Canada — billions of dollars. These sources say they’ve been informed of the move by federal negotiators, although nothing is yet in writing.

While the negotiators felt unable to speak on the record for fear of impacting their clients, a lawyer working for a large firm serving several large First Nations confirmed that First Nation negotiators across Canada are “uniformly angry”. Lawyer Alan Pratt says First Nations have been told that the Oct. 16 anniversary of the Specific Claims Tribunal Act has been set as the deadline. On that date, all previous offers made at the negotiating table by federal officials will be formally revoked.

“I’ve been hearing from not only my own clients, but also from other claims lawyers and negotiators from across the country that something very strange is happening,” Pratt said.

“Apparently from on high, I’m not sure how high, but from on high the direction has been given that all of the claims that are currently in negotiations, where those negotiations began on or before October of 2008, the negotiations are being suspended. Meetings are being cancelled, and the negotiators are telling the First Nations and their advisors that they will be preparing– the federal side will be preparing a ‘take or leave it’ offer.”

The reasons behind the federal move are likely complex and combine politics with an effort to balance the national books. Several negotiators say they were told that if a First Nation rejects the government’s final offer, the negotiations will be shut down and the only recourse will be to take the claim before the Specific Claims Tribunal. But the tribunal cannot award more than a total of $250 million each year for all the claims it hears. And the legislation phases out the tribunal after 10 years. That means the most the tribunal can award for all specific claims is $2.5 billion.

The government of Canada posts a contingent liability on its books each year to account for outstanding land claim settlements that may be settled during the government’s fiscal year. One negotiator, who spoke to APTN National News on the promise of anonymity, said the amount currently listed in the main estimates is close to $10 billion. But the source added that the total amount of the federal crown’s outstanding obligations is actually closer to $50 billion.

Developed in partnership with the Assembly of First Nations and introduced at a press conference attended by Prime Minister Stephen Harper, then-Indian Affairs minister Jim Prentice and then-National Chief Phil Fontaine on June 12, 2007, the Specific Claims Tribunal Act established a new body called the Specific Claims Tribunal. The tribunal is made up of experienced provincial superior court judges who would hear cases where the two sides could not come to an agreement. The government stated at the time of the announcement that the backlog of claims in the system was unacceptable.

There are a number of categories of land claims within the federal system: comprehensive claims, specific claims and treaty land entitlement claims. There are also claims that are considered “major” or “special” claims. Only specific claims and treaty land entitlement claims are affected by this new government strategy, sources said. Claims being negotiated under the British Columbia Treaty Commission process are not part of this new process.

In the specific claims negotiation process, Canada assesses the facts of each claim to determine whether it owes a lawful obligation to a First Nation. If that is what the government concludes, the claim is accepted for negotiation.

The interests of third parties are considered during the negotiations. Private property is not expropriated to settle claims. No third party is forced to sell their land unwillingly.

Negotiators say nothing in writing has yet been received from federal officials and questions they asked about where this plan originated or other details were not answered directly. Meanwhile, Pratt said his colleagues and their First Nation clients see this change in direction as a betrayal.

“They [the First Nations] have invested a great deal of time — in some cases, decades — getting this far in the process. And they have been promised justice. The Prime Minister himself in 2007 announced a policy called ‘Justice At Last’, which many of us are now calling ‘Just For Laughs’ in honour of the comedy program. The promises that the Prime Minister made in the summer three or four years ago are being dishonoured. And First Nations are very angry,” he said. “I can tell you that the claims community, the professionals and the First Nations who are in claims across the country, are in an uproar and outrage. I’m not going to make any predictions about what may happen, but I will remind– I would remind the federal system that when Justice At Last was announced, it was in response to a Senate committee report called ‘Negotiation or Confrontation: It’s Canada’s Choice.’ And Canada’s pushing First Nations back, away from reconciliation. And as the Senate predicted, it will be some form of confrontation that will be the result. That’s my prediction.”

Calls to the Department of Aboriginal Affairs and Northern Development on July 25 were not immediately returned.

Paul Barnsley, Michael Hutchinson, Murray Oliver, Bruce Spence, Nigel Newlove, and Josh Grummett contributed to this story.