An Introductory Guide to the Specific Land Claims Process for First Nations in Canada

History

Canada began to recognize and negotiate First Nations specific claims following the decision in Guerin in 1983. The current specific claims process was created by Parliament in 2007 to support reconciliation with First Nations.

What is a Specific Claim?

Specific claims apply to First Nations based on their status under the Indian Act. Typically, an individual cannot apply for a claim without consent to represent the First Nation community’s interests.

Section 14 of the Specific Claims Tribunal Act lists the reasons for filing a claim, which include:

• The unlawful taking of reserve land;

• The unlawful taking of Indian monies;

• Breaches of historic treaty obligations, and

• Breaches of Crown fiduciary duty.

A claim cannot be launched for:

• Issues occurring within 15 years of the claim filing date;

• Anything governed by a comprehensive land agreement or a self-government agreement;

• The delivery of services or programs, and

• Aboriginal title or rights.

Future of the Specific Claims Process

Since its creation, challenges have plagued the specific claims process. Examples of these challenges include:

• The limitation of valid and eligible issues under section 14 of the Specific Claims Tribunal Act, which excludes many grievances that First Nations may have with the Government of Canada.

• The imbalance of power throughout the process, which rests with the Government of Canada.

• The statutory limitation on damages that can be awarded by the Specific Claims Tribunal, which does not allow for compensation based on bad behaviour by the Government of Canada.

• The under-funding and under-resourcing of the Specific Claims Tribunal, which results in a backlog of claims to be heard.

• The length of the process, which can span several years.

• The high cost of the process.

The Government of Canada is working with the Assembly of First Nations to improve this process. Hopefully this will address the continuing challenges that many First Nations encounter in bringing forward specific claims.

Specific Claims Process

Step 1: Research issue to determine if it is eligible for a specific claim under section 14 of the Specific Claims Tribunal Act.

Step 2: File a specific claim with the Government of Canada. All documents must be labelled with the document source and number.

The claim must include:

• A claim document, which includes:

  • Allegations

  • Legal arguments

  • Facts

  • Compensation requested

  • Citations

• A historical report: Outline the factual circumstances of the allegations.

• Supporting documents: Copies of documents relied on to support the allegations.

Step 3: The Government of Canada has up to six months to determine if the claim meets the minimum standards for filing it with the Minister.

If the First Nation does not receive a response about its claim from the Government of Canada after three years, proceed to step 7(1) to file the claim with the Specific Claims Tribunal.

Step 4: If the claim meets the minimum standards, the Government of Canada will determine whether to accept the claim for negotiation for compensation.

If the claim does not meet the minimum standards, the First Nation may resubmit it and restart the process once they meet the minimum standards.

Step 5: If the claim is accepted for negotiation, the First Nation and the Government of Canada will negotiate for a monetary compensation settlement.

If the Government of Canada does not accept the claim for negotiation, proceed to step 7(2) to file the claim with the Specific Claims Tribunal.

Step 6: Approval of the settlement amount reached between the First Nation and Government of Canada during negotiations.

Approval from the Government of Canada depends on the amount agreed to in negotiation. Approval by the First Nation is dependent on its own process.

If a settlement is not reached, continue following this process.

Step 7: First Nations can file with the Specific Claims Tribunal in four circumstances, which include:

1. The Government of Canada fails to respond within three years to a claim that was filed.

2. The Government of Canada rejects a claim for negotiation.

3. Negotiations occur for a period of three years and the First Nation does not want to continue negotiating or a settlement is not reached.

4. By consent of the parties.

Step 8: The Specific Claims Tribunal came into operation in 2011. It is comprised of judges who can award damages up to $150 million. This Tribunal follows its own process, which is not included in this post.

Other tips

• The specific claim process is complex. Hiring a lawyer to help navigate the process is recommended.

• Funding may be available to support First Nations in making specific claims. Unfortunately, it is not clear how to obtain this funding. Consult a lawyer for more information.

• For more information on this process, please visit the Government of Canada’s Department of Crown-Indigenous Relations and Northern Affairs website.