History of Land Claims
The story of specific claims dates back to the days of first contact with British colonists. The newcomers were welcomed by Indigenous nations in a spirit of friendship, to share the land and resources of Turtle Island (the area now known as North America). Matters of mutual importance would be discussed and resolved around a council fire, a tradition that existed for many years, creating a spirit of coexistence.
Then the British sought to gain more control over the resources like timber, precious metals, and agriculture, which required more land. The Crown stopped accepting council fire agreements and the word of the indigenous people and began to demand agreements be put into treaties. Since the Crown was the sole recorder and interpreter of these documents, there is no way to confirm if the conversations were recorded accurately as few of the indigenous people could read, write or speak English fluently.
The friendship and peace once shared turned to resentment and frustration as First Nation people were forced off their land and compressed into small areas that held a fraction of the resources need to support their way of life. The treaties were never meant to be enduring documents as the belief was that Indians were literally going to die out or be assimilated.
Any First Nation who filed a grievance faced a one-sided process. Disputes were arbitrated in the courtroom, even though it was disparagingly clear First Nations did not have the funds or resources to negotiate this way.
Instead of communication and negotiation, First Nations were forced to prove they were the ones who were wronged; an impossible situation when the documents and agreements were recorded and held by the Crown.
This lopsided situation still exists today, despite the fact that trillions of dollars have been gained from these territories for the Crown from resource development that has been carried out in the disputed lands.
The Indian Act prohibited anyone, First Nation or non-First Nation, from soliciting funds for First Nation legal claims without a special license from the Superintendent General. The 1927 amendment to the Act granted the government control over the ability of First Nations to pursue legal actions against the Crown which may be referenced nowadays as Canada’s Specific Claims policy.
If a First Nation can prove that Canada breached its lawful obligation relating to treaty violations and breaches of fiduciary/equitable duties, the issue will be resolved through the Specific Claim Process. Established by the Crown, this process allows First Nations to have their specific claims addressed through negotiations with the government rather than going through the courts. However, without the funds to properly gather required research and documentation, or hire necessary expert witnesses, and retain legal counsel, many valid claims have not been initiated over concerns that Canada will not provide adequate loans or funding to allow the First Nation to achieve the most optimal outcome.
While Canada has the Department of Justice and Specific Claims Branch to assess their claim and develop their legal argument, every First Nation is left to fund their own research and submission from the loan financing offered by Canada, which is grossly inadequate for any meaningful resolution.
An opportunity exists for First Nations to settle Specific Claims with Canada, but many Nations do not have the funds or resources to initiate and carry-out the process. They are often forced to take a ‘wait and see’ approach, hoping their Specific Claim will be accepted for negotiation so that some loan funding will be made available.
Specific Claims are made against Canada by a First Nation asserting an unjust administration of the Nation’s lands and other assets, or the non-fulfilment of historic treaties by the Crown. The principles and process for resolving Specific Claims is established by the Specific Claims Policy and the Specific Claims Tribunal Act.
Specific claims are resolved using a complex process that depends on the expertise, engagement, and participation of a number of parties, including the Canadian government, First Nations, the provinces, municipalities, and other affected interests.
Common types of Specific Claims
- Unlawful surrender or expropriation of reserve land
- Outstanding entitlements to land and other economic benefits owed under treaties
- Unauthorized use of, or trespass on, reserve land acquired for railways or highways
- Hydro-electric development, flooding of reserve lands
- Breach of fiduciary duty by the Crown relating to misadministration of band trust funds and natural resources
- Inadequate compensation for taking or damaging reserve lands
- Fraud by federal employees/agents in reserve land transactions, or misadministration of First Nations monies or assets