Can a better understanding of specific claims data contribute to a fairer process? EVALUATING THE...

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


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.


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’


Justi

ce A

t Las

t Act

(Oct

200

8)

Settled Claims / Concluded Claims


Canada is Negotiating Claims


“Negotiations is always better than confrontation in securing peaceful settlements that respect the interests of all parties.”

Jim Prentice 2007



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


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



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



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



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)



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”


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


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)



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



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



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


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


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


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


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


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


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.”


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


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


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