Summary of specific land claims process
The Specific land claim resolution process is on a voluntary basis, initiated by the First Nation communities who wish to participate. The Canadian government describes the process as making right on “wrongs” committed in the past against First Nations people.
There is a minimum standard to meet in order to file for a specific claim which relate to format of submission, historical report and supporting documents required, etc… I will note that requiring documentation very often places First Nations at a disadvantage given our reliance on oral history. The disadvantage is accentuated by other factors related to colonization.
All research responsibilities as they relate to proving a claim rest on the First Nation. In order to substantiate a claim, it must be demonstrated on a balance of probabilities that the government of Canada has an outstanding “lawful” obligation to the First Nation. In a civil law claim, the balance of probabilities is the requisite standard of proof. It means that it is more likely than not to have occurred. The fact that the claim is TRUE has to be more probable, over 50%, based on accepted evidence.
There are varying levels of specific claims. As it conerns Kanehsatake, we would figure as a Category 5 Claim which is worth over 3 million dollars and/or is more complex in nature and/or require the involvement of the provincial government.
Specific claims involving land
Given that our claim involves land, it is important to note that there are special circumstances relating to Specific claims which include land. Notably, land transfers can only occur on a willing buyer/willing seller basis. We can buy land on the open market using settlement funds or use transferred provincial crown lands.
Once the lands are acquired, IF we meet the criteria established by the Canadian government relating to adding to reserve land or creating a new reserve, we can transfer the newly acquired land to reserve land. There are many steps involved in adding land to reserve:
- Environmental assessments may be required.
- Interests held by third parties must be resolved (leases, permits, rights of way)
- Any necessary public access to the land and public utilities must be provided.
- First Nations must consult municipal and provincial governments.
As it relates to Municipal issues, we need to pay close attention to this given our specific situation. Before lands can be given Reserve status Canada REQUIRES First Nations to negotiate with affected municipalities to resolve any issues. Most notable is the loss of the tax revenue by the municipalities and school boards.
***In General, under these negotiated agreements, First Nations typically pay the same amount that they would if the land was not reserve land.*** This means that a negotiated agreement would see a First Nation make payments in lieu of taxes to the municipality.
A sobering fact: ONLY 0.2% of Canada’s land mass has “Reserve Status”.
After three years of negotiations, the claim can be referred to the Tribunal for a binding decision or the negotiations can continue. This is at the choice of the First Nation. If a settlement is reached, the process moves on to implementation. If there is no settlement reached, the claim can be resubmitted with NEW EVIDENCE or moved to the tribunal to decide on the validity of the claim and compensation.
Cost of Negotiations
There are costs associated to the negotiation process. At the end, these may be added to settlement. A reasonable portion of the costs of negotiation for claim will be determined or up to a maximum of $427,500 over the three yearprocess.
Amounts determined based on workplans and reflect First Nation’s Participation in negotiations and/or level of activity required to settle claim.
Here is a breakdown of Annual Amounts as determined by the government of Canada:
- Legal $35,000
- First Nations related Costs $66,000 (Costs associated to participation in negotiation (Community meetings, travel, honoraria, etc..))
- Professional Costs $35,000 (costs associated to employing specialists or experts. (Financial Advisors for example))
- Other Costs $6,500 Commities, meetings, communications, studies, land surveys, environment studies.
- Should not exceed amounts outlined above ($427500)
- Deducted from final settlement
Criteria for compensation
The specific claims process sets out criteria related to compensation given in the resolution settlement.
- As a general rule a band is compensated for losses incurred and damages suffered. If a breach by the federal government of its lawful obligation is proven, there is compensation based on legal principle. (As would occur in a civil litigation for example.)
- There is no compensation for “Special Value to Owner” unless it is established, based on evidence, that the land in question had a special economic value to claimant (Over land above market value).
- Where it can be justified, A reasonable portion of the cost of negotiations may be added to compensation (as previously mentioned).
- The Criteria is general in nature. Any amount will depend on the extent which claimant establishes a valid claim. The burden is on the claimant. If there is doubt on reserve land, the doubt is reflected in the offer.
- If established that certain reserved lands were taken or damaged under legal authority. Compensation would be payment of lands at a value of these at the time taken or damaged.
- There is NO compensation for the forcible taking of land.
- The government takes third party interests into account and as general rule a settlement which will never lead to third parties being dispossessed.
- If established that certain reserved lands were never lawfully surrendered or otherwise taken under legal authority. Compensation may include return of lands or payment of current, unimproved value of lands. The compensation may include an amount for loss of use of lands in question where it can be established that the claimant did in fact suffer the loss.
- Where compensation is to be used to purchase other lands. Compensation may include reasonable acquisition cost (Not above 10% of appraised value)
- Any compensation paid in respect to a claim shall take into account any previous expenditures already paid to claimant in respect to the same claim.
Finality and Certainty
The Federal Government requires finality and certainty as a result of claim settlement. A settlement MUST achieve complete and final redress. First Nations must therefore provide a release and an indemnity to the Canadian government. The First Nations may be required to provide a SURRENDER or take other steps to ensure the claim cannot be re-opened in the future.