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Can a better understanding of specific claims data contribute to a fairer process?
EVALUATING THE MESSAGE
Justice at Last Promised:• Fair and timely resolution• Transparency• Better Access to Mediation• An independent and binding process for rejected claims• Environment that fosters negotiated settlements
Information compiled by: UBCIC, AFN, NNTC
Evaluating the Message
Since Justice at Last, we have experienced:
• Growing concerns regarding the fairness and transparency of the process.
• We have seen: Research funding cuts Inadequate mediation services Canada’s misconduct at negotiation tables Low rate of success for First Nations
• Aboriginal Affairs and Northern Development Canada (AANDC) reporting an opposite narrative regarding the success of Justice at Last.
Evaluating the MessageSince Justice at Last, Canada asserts:
1. Since Justice at Last was announced, about 90-100 claims have been settled
2. Settlements are fairly “negotiated”
3. Fewer claims are submitted each year
4. Justice at Last is being implemented in a cost effective manner
5. AANDC has invested “new money” into claims resolution
6. The backlog has been eliminated
Evaluating the Message
Resources consulted:
• Online AANDC’s Specific Claims data base / inventory
• Online Specific Claims Tribunal database
• Survey conducted by UBCIC with Claims Research Associations, First Nations and Legal Counsel
• Case study and analysis of NNTC processed claims
• Other publicly available documents, decisions, websites, submissions, ATIPs, etc.
Evaluating the Message
Settled Claims
About 90 claims have been settled
Source: Summative Evaluation of the Specific Claims Action Plan AANDC, April 2013
“CONCLUDED”CLAIMS
543
SETTLEDCLAIMS
300 (55%)
PRIOR TOOctober 2008
POSTOctober 2008(Sept. 2014)
“CONCLUDED”CLAIMS
572
SETTLEDCLAIMS
87 (15%)
REJECTED*CLAIMS
485 (85%)
REJECTED*CLAIMS
243 (44%)
* Rejected claims includes claims deemed as ‘No Legal Obligation’ and ‘File Closed’
Evaluating the Message
Justi
ce A
t Las
t Act
(Oct
200
8)
Settled Claims / Concluded Claims
Evaluating the Message
Canada is Negotiating Claims
Source: Summative Evaluation of the Specific Claims Action Plan AANDC, April 2013
“Negotiations is always better than confrontation in securing peaceful settlements that respect the interests of all parties.”
Jim Prentice 2007
Evaluating the Message
Canada is Negotiating Claims
Partial Acceptances:
80% report receiving partial offers on their claims
Demands for Release :
75% indicated they are receiving demands for releases on substantive allegations
CRU Survey 2014
Partial Acceptances
Evaluating the Message
Canada is Negotiating ClaimsTake it or Leave it Offers
• 60% received take-it-or-leave-it offers
45%
51%
16%
25%
66%
% of take it or leave it offers by region
BC
AB
MN
SK
QE
• 78% indicated they tried to negotiate these offers with Canada• 83% indicated Canada refused to negotiate
Evaluating the Message
Canada is Negotiating Claims
Unilateral Claim Valuation determines Negotiation StrategyClaim Category Claim ValueNominal $0 - $50,000Small $50,000 – 3,000,000Regular/Normal $3,000,000 – 150,000,000
“While Canada suggests that the expedited claims process is designed to speed up the settlement process, the process effectively prevented any meaningful negotiation from taking place. Without a meaningful process and by refusing to engage in discussions, Canada was not acting in “good faith”, upholding the honour of the Crown, or living up to the principles enshrined in s. 35(1) of the Constitution Act, 1982.”
Justice Patrick Smith – Specific Claims Tribunal
Evaluating the Message
Canada is Negotiating Claims
Unilateral claim valuation determines negotiation funding available
*often determined and imposed by AANDC
Category Claim value* Negotiation funding available1 Claims under $40,000 15,000
2 Claims between $40,000 and $99,999 25,000
3 Claims between $100,000 and $999,999 50,000
4 Claims between $1,000,000 and $ $2,999,999– 75,000
5 Claims $3 million and over Max: 427,500 over 3 years
“Generally, negotiation loan funding will not be provided and workplans will not be required for Category 1, 2, 3 and 4 claims. As a transition measure, Canada will provide additional funds to support First Nations' participation in ongoing negotiations.”
Source: AANDC Specific Claim Negotiation Cost Guidelines
Evaluating the Message
Canada is Negotiating Claims
A Timeline Becomes an “Operational Model”• Three year timeline legislated by SCTA• Canada links success of specific claims action
to the “percentage of claims under assessment addressed within legislated three years”
• Timeline intended as a tool for First Nations has been turned into an operational model.
• No motivation to negotiate – only to address claims and remove from inventory
(source: summative evaluation)
Evaluating the Message
Canada is Negotiating Claims
Six Month Minimum Standard Review Time Determines the Fate of Claims• Six months non legislated timeline added for Minimum
Standard (MS) review• Review conducted by BOTH SCB and DOJ
• First Nations with nominal or small value claims are made “Settlement offers” that include a 60 day deadline for First Nations to respond.
• If no response, file is closed• Most settlement offers untenable to First Nations
Claims at this stage are reported as “in negotiations or Canada offers to negotiate”
Evaluating the Message
Tribunal offers opportunity to re-evaluate policies.
No lawful oblig.64 %
Failed negs.20%
File clo-sure 16%
Tribunal Decisions
• FC: 1 claim (16%)• NLO: 4 claims (64%)• UN: 1 claim (16%)
BREAKDOWN OF 64 CLAIMS AT THE TRIBUNAL
Evaluating the Message
Canada is Negotiating ClaimsJustice at Last Promised
“Ultimately, righting past wrongs is simply the right thing to do. Settling claims helps Canadians come to terms with our history while bringing closure to longstanding grievances for First Nations.
Negotiated settlements help rebuild relationships and generate benefits for all Canadians. These benefits include economic benefits, new opportunities for business partnerships and certainty for First Nations, industry and area communities. Negotiations lead to “win-win” situations that balance the interests of all Canadians.”
Specific Claims Website (AANDC)
Evaluating the Message
Source: Summative Evaluation of the Specific Claims Action Plan AANDC, April 2013
Fewer Claims are Being Submitted
Evaluating the Message
Fewer Claims are Being Submitted
BC AB MN SK ON QE PEI NS
NUMBER OF CLAIMS 189 38 18 30 69 29 2 6
IN RESEARCH 167 6 5 12 35 7 2 6
10
30
50
70
90
110
130
150
170
190
Number of Claims in ResearchNot Yet Filed with SCB
Num
ber o
f Cla
ims
Current Claims on Work Plan to be Submitted
Evaluating the Message
Fewer Claims are Being Submitted
Funding cuts to Research Claims
2008/09 2009/10 2010/11 2011/12 2012/13 2013/14 2014/15$0
$500,000
$1,000,000
$1,500,000
$2,000,000
$2,500,000
$3,000,000
$3,500,000
$4,000,000
$4,500,000
Research Funding 2008-2014
QuebecOntarioBritish ColumbiaAlbertaNova ScotiaSaskatchewanManitobaNew BrunswickNewfoundland and LabradorPrince Edward IslandNorthwest TerritoriesNunavutYukon
Tota
l Am
ount
Evaluating the Message
Fewer Claims are Being Submitted
Projected New Claims for Next Five Years
2014 20190
50
100
150
200
250
300
Number of Projected New Claims ; 266
Number of Projected New Claims
Axis Title
Evaluating the Message
The Cost of Negotiating Claims Fairly
If Canada Fairly Negotiates 4 NNTC Claims
Activity Estimated Cost per Claim Total for 4 Complex Claims
A. Research and Development and Submission of Claims – First Nation Costs
$125,000 X 4 Claims $500,000
B. SCB Review and DoJ Decision Costs $125,000 X 4 Claims $500,000
C. Estimated Claim Value $1,000,000 X 4 Claims $4,000,000
Total to Resolve Claims $1,250,000 $5,000,000
Evaluating the Message
Canada Offers Partial Acceptances with Negotiation Costs for 4 NNTC Claims
Activity Estimated Cost per Claim
Total for 4 Complex Claims
A. First Nation Submits 4 Claims $125,000 X 4 Claims $500,000
B. SCB Review and DoJ Decision Costs $125,000 X 4 Claims $500,000
C. Costs to First Nation - Consultation CRU & Legal Counsel $1,250 X 4 Claims $5,000
D. Negotiation Costs for Canada $100 X 4 Claims $400
Total to Resolve Claims $251,350.00 $1,005,400.00
**First Nations typically do not accept these offers so claims remain unresolved**
The Cost of Partial Acceptances
Evaluating the Message
4 Claims Split to 22 Claims
Activity Estimated Cost per Claim Total for 22 Split Claims
A. Total Spent To-Date to Try and Resolve 4 Claims $251,350 $1,005,400
B. Research and Development and Submission of 22 Specific Claims – First Nation Costs
$75,000 X 22 Claims $1,650,000
C. Review and Decision Costs for 22 Specific Claims $25,000 X 22 Claims $550,000
D. Estimated Claim Value for 22 Specific Claims $181,818 X 22 Claims $4,000,000
Total to Resolve Claims $533,169.00 $7,205,400.00
The Cost of Claims Splitting
Evaluating the Message
If These 22 Claims are Rejected and NNTC Advances Them to the Tribunal
Activity Estimated Cost per Claim Total for 22 Split Claims
A. First Nation Costs to File Claim at Tribunal
$100,000(Average) X 18 Claims $1,800,000
B. DoJ and AANDC Costs to go to the Tribunal
$100,000(Minimum) X 18 Claims $1,800,000
C. 11 Claims Win at Tribunal $181,818 X 11 Claims $2,000,000
D. Canada Applies for Judicial Review of Tribunal Decision - Costs for Canada
$250,000 X 7 Claims $1,750,000
E. Canada Applies for Judicial Review of Tribunal Decision - Costs for First Nation
$150,000 X 7 Claims $1,050,000
F. Estimated Claim Value $181,818 X 7 Claims $1,272,726
Total Tribunal Costs $963,636.00 $9,672,726.00
Total Costs for Advancing and Settling Original 4 Small Value Claims
$1,314,986.00 $12,878,126.00
The Cost of Taking Claims to the Tribunal
Evaluating the Message
2013 Federal Budget: promised “$54 million over two years to ensure that specific claims are addressed promptly.”
- NOT “new” money- Massive Cutbacks to R&D ostensibly as part of Deficit
Reduction Action Plan- AANDC officials clarified that the “DRAP” cuts are not to
money’s promised with Justice at Last but to previously existing specific claims program funding
AANDC has invested “new money” into claims resolution
Source: http://actionplan.gc.ca/en/initiative/resolving-specific-claims
Evaluating the Message
Backlog has been Reduced/Eliminated
As part of an Access to Information Request obtained by UBCIC, an internal Specific Claims Branch Document claims that:
“As of July 23, 2013, the entire Backlog inventory, barring the Treaty 6 Agricultural
Implements claims due to be sent in September 2010, had been sent to DoJ.”
The SCB is now: “Free from years of accumulated pressure from the Backlog.”
Evaluating the Message
What is the Backlog: AANDC’s Version
• SCB measures the backlog as those claims filed before or on October 16, 2008.
• Claims are removed from SCB’s inventory (backlog) when they “addressed” via the following mechanisms:• Settled by negotiations• Rejected (no lawful obligation)• Files closed
Evaluating the Message
AFN'S ANALYSIS OF CLAIMS STATUS 2014
Negotiation Ceased
34%
First Nation Withdrew35%
Unknown31%
Breakdown of Files Closed (156 files) as at Nov. 2013*
Information obtained via Access to Information Request
Conclusions
We know:
• far fewer claims are being fairly negotiated and settled than AANDC asserts
• large numbers of claims are currently being developed and many more are identified as new – and yet deep cuts to funding continue
• claims can be finally resolved in a much more cost effective way and in a way that can bring about true resolution and reconciliation
• the backlog of claims is not eliminated since the bulk of claim issues are not resolved
Evaluating the Message