Launch of an independent process to resolve First Nations claims against Ottawa

There is light at the end of the tunnel for Canada’s First Nations in their nearly 50-year pursuit of an independent process to resolve land claims and other legal grievances with the federal government.

“We have just attended a ceremony to launch a very important process to advance the specific claims of many First Nations across Canada,” Assembly of First Nations (AFN) Regional Chief Paul Prosper said Thursday after -noon in Fall River after a purification ceremony. the shore of Lake Thomas.

Prosper, who represents Nova Scotia and Newfoundland and Labrador at the AFN, said a truly independent claims process must be co-developed by First Nations representatives and senior federal government officials. .

Prosper, a lawyer and former chief of the Paqtnkek Mi’kmaw Nation, located about 25 kilometers east of the town of Antigonish, said the implementation of the independent process is still in its infancy.

“We are currently negotiating a mandate,” he said. “This will be managed by a specific working group on the implementation of demands. … Much of the work will be guided by the Chiefs Committee on Lands, Territories and Resources through the AFN, involving various technical tables with representatives from across the country.

The battle to get there has been a long and difficult task for First Nations.

In 1974, the Office of Native Claims was created, assuming the dual role of reviewing claims against the Crown and representing Canada in negotiations. First Nations reported a clear conflict of interest.

A 1983 report on First Nations self-government recommended the independent claims process, but the recommendation was never implemented. In 1990, after the Oka confrontation, the federal government again agreed to take steps to reform the claims process and a specific claims commission was created, but this body had no decision-making power. enforceable.

Assembly of First Nations Regional Chief Paul Prosper, second from left, delivers remarks at the launch of a new national land claims process with the Canadian government. – Photo by Tim Krochak

In 2006, a standing Senate committee expressed the need to develop a truly independent claims process within two years and a special departmental representative was appointed in 2014 to conduct a five-year review of the Special Claims Tribunal Act .

“It takes a while for government to realize that it’s much better when you have a truly independent process,” said Prosper, acknowledging the hard work and frustrations of First Nations leaders who tirelessly advocated in favor of an independent claims process over the years.

“It is through independence and the removal of conflict of interest that you can seek to resolve grievances in a fairer and faster process,” he said. “Although there has been progress in the past, the process was never truly independent and there was always this conflict of interest with the federal government being the respondent but also playing a significant role in the administration of the claims against them. We seek to eliminate this conflict.

Prosper said many of the claims relate to outstanding legal obligations.

“They flow from the law, they are things that the federal government should have done or not have done, historically, so they are active legal obligations incumbent on the Crown. This co-development initiative seeks to address these historical wrongs.

Prosper said the sincere hope is that the courts will be seen as the last resort.

“We hope that through an independent specific claims resolution centre, many of these issues can be resolved from the outset through good faith discussion and negotiation,” said Prosper. “The court will always be an option if these mechanisms fail under the resolution center, but it is sincerely hoped that we have fewer claims going to litigation as negotiated settlements are the preferred route for both parties.”

Mr. Prosper said there are many First Nations grievance issues with government, whether federal or provincial, including specific grievances based on law. He said the initiatives and projects taking place on the ground today, which require a high level of consultation with Indigenous peoples, are a separate process.

“There are many projects and initiatives undertaken by the government and they have a duty to consult with First Nations groups regarding their asserted claims in the particular project area,” Prosper said. “Part of that duty is to meaningfully engage with First Nations groups…an active duty to fully engage and seek consensus and agreement with First Nations groups on the nature of those projects that involve their traditional lands and resources.

The duty to consult was at the center of a successful challenge in the Supreme Court of Nova Scotia two years ago by the Sipekne’katik First Nation of a provincial government’s decision to dismiss its appeal that the government of Nova Scotia had not sufficiently consulted the First Nation in the Alton natural gas project.

Justice Frank Edwards found that although there was extensive consultation regarding the potential environmental impacts of the Alton Gas Project, the central issue of Aboriginal title and treaty rights was never specifically addressed.

“The Minister therefore made a manifest and overriding error in concluding that the level of consultation was appropriate,” Edwards wrote in her March 2020 decision.

Prosper said it’s always better to get involved early and meaningfully.

“It is not enough to send information or simply tick a box. They must be meaningful and genuinely engage the First Nations who are concerned about the project in question.

There’s a lot of work to be done to develop the Independent Claims Resolution Vehicle and Prosper said while it’s nice to start with the ceremony, the Independent Resolution Process is long overdue.

“Many of our First Nations have been calling for this change for generations,” said Prosper, who holds the national land claims portfolio with the AFN.

“We hope that through this co-development initiative, we can resolve these claims for the benefit of all our future generations.”

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