Overview Working toward a fully independent specific claims process.
For generations, First Nations have advocated for a fair, open, transparent, and fully independent specific claims process, repeatedly raising concerns about Canada’s control over funding, access to negotiations and evidence, and unilateral review of specific claims.
The AFN conducted extensive engagement with First Nations from 2019–2021 that resulted in the AFN reform proposal calling for the establishment of a fully independent specific claims process, including an Independent Centre for the Resolution of Specific Claims (the Independent Centre).
In 2020, First Nations-in-Assembly passed Resolution 09/2020, Jointly Develop a Fully Independent Specific Claims Process, directing the AFN to work with the Government of Canada to jointly develop an independent specific claims process consistent with four key principles:
- The Honour of the Crown
- Independence in all aspects of claims resolution, including funding and oversight of claims and their resolution
- Recognition of Indigenous laws, legal orders, and dispute resolution mechanisms
- No arbitrary limits on compensation
In 2022, the AFN and the Government of Canada launched the Specific Claims Implementation Working Group (SCIWG) during a ceremony with the Chiefs Committee on Lands, Territories, and Resources in Kjipuktuk (Halifax, NS). The mandate of the SCIWG is to jointly develop a proposal for a fully independent Specific Claims process, which includes an Independent Centre for the Resolution of Specific Claims (the Centre).
In 2023, the AFN formed the Council of Experts in Indigenous Laws (CEIL) to guide the SCIWG in the recognition of Indigenous laws in the reformed specific claims process.
In spring 2024, the SCIWG developed and published a joint discussion paper outlining the proposed elements of the Centre.
The joint discussion paper envisions the Centre being composed of the following functions:
- Alternative Dispute Resolution (ADR) division, providing First Nations with a venue for facilitated negotiations and mediation.
- Resource Hub, supporting First Nations and Claims Research Units in developing their claims.
- Funding Division, providing First Nations with financial resources to research, develop, and resolve their claims.
- Registrar, providing the administrative infrastructure for the filing and management of specific claims in the Centre.
- Access to the Specific Claims Tribunal, which will continue to be an independent body for the adjudication of specific claims.
We invite feedback and discussion from First Nations, claims practitioners, and other interested parties on this discussion paper. Please contact [email protected] with your input.
About The background and history behind Specific Claims policy reform.
Background
First Nations have advocated for an independent specific claims process for over four decades, repeatedly raising concerns about Canada’s control over funding, access to negotiations and evidence, and unilateral review of specific claims.
Sparked by the legislated five-year review of the Specific Claims Tribunal Act and a 2016 report of the Office of the Auditor General, Canada committed to work jointly with the AFN and First Nations to substantively reform the specific claims process and policy.
In 2017, the Chiefs-in-Assembly passed AFN Resolution 91-2017, Support for a Fully Independent Specific Claims Process, calling on Canada to work in equal partnership with the AFN and First Nations to develop a fully independent process with “the goal of achieving the just resolution of Canada’s outstanding lawful obligations through good faith negotiations.”
The AFN held a series of dialogue sessions with First Nations in the fall of 2019 to seek input on what a fully independent specific claims process should look like. These sessions and the input collected, along with written submissions from several First Nations, helped to inform the development of a Draft Summary Report. Following the release of the Summary Report, the AFN developed a Specific Claims Reform Proposal to guide the reform the specific claims process.
From May to October 2021, the Assembly of First Nations received input from First Nations on the Specific Claims Reform Proposal. The AFN reviewed all responses, revised the draft proposal, and published a final version.
Dialogue Sessions
Following the completion of a 2019 AFN Dialogue Process and the release of a Summary Report, Chiefs-in-Assembly passed AFN Resolution 09/2020 “Jointly Develop a Fully Independent Specific Claims Process” which calls on Canada to work directly with the Assembly of First Nations (AFN) and the Chiefs Committee on Lands, Territories and Resources (CCoLTR) to develop a fully independent specific claims process consistent with the United Nations Declaration on the Rights of Indigenous Peoples and based on the following principles identified by First Nations during the 2019 AFN dialogue process:
- The Honour of the Crown: the specific claims process must be consistent with the Honour of the Crown;
- Independence of all Aspects of Claims Resolution: specifically including funding and oversight of claims and their resolution that must be handled independent of Canada;
- Recognition of Indigenous Laws: Support the recognition of the laws, legal orders, and dispute resolution mechanisms as articulated by participating First Nations. The recognition of First Nations’ laws may impact the conduct of adjudication, dispute resolution and negotiation; and,
- No Arbitrary Limits on Compensation: there will be no financial constraints, such as the 150 million dollar cap on the jurisdiction of the Tribunal or the Commission. First Nations should have access to a fair process of redress that fits their needs and priorities.
About the Proposal
The AFN hosted regional dialogue sessions for First Nations and their technicians in the fall of 2019. These sessions provided First Nations an important opportunity to share their ideas on how to create a fully independent specific claims process.
Review the Specific Claims Dialogue: Summary Report for a comprehensive overview of what we heard.
Following the release of the Summary Report, Chiefs-in-Assembly passed AFN Resolution 09/2020, identifying the core principles that must be included in a new independent specific claims process. The AFN and its First Nations technical representatives developed the Draft Specific Claims Reform Proposal based on the input received through the 2019 dialogue sessions and consistent with AFN resolution 09/2020.
Joint Discussion Paper
In 2024, the Specific Claims Implementation Working Group was joined by an independent facilitator who assisted in the development of a joint discussion paper describing the basic elements of a proposed design of the Centre. The publication of this discussion paper helps move forward the AFN’s mandate to work with the Government of Canada to establish an independent specific claims process.
The resolution of claims is aligned with the United Nations Declaration on the Rights of Indigenous Peoples, including Articles 27 and 40:
Article 27
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.
Article 40
Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights
A fully transformed Specific Claims process will be guided by two overarching principles:
- Fairness: Ensure fairness in the specific claims process by emphasizing independence and space for Indigenous laws. Independence removes Canada’s control over funding, negotiations, and settlements, addressing First Nations’ concerns about fairness and transparency. Incorporating Indigenous laws allows First Nations to apply their legal systems throughout the claims process, supporting true legal pluralism.
- Timeliness: Improve the Specific Claims resolution process to be more efficient and timely, preventing delays that harm First Nations.
Please check out the discussion document below and reach out to the AFN with your questions and comments. The AFN Lands Sector will host a series of webinars over the spring and summer of 2024 and remains available to meet directly with First Nation leadership.
Contact us [email protected]
Documents The latest resources on this topic.
These are our latest reports, resolutions and other documents on the subject of Specific Claims Policy Reform. To see more documents on this topic, and all other public AFN documents, visit the Document Library.
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