Tribunal touted by PM Harper as ‘historic’ now on verge of failure

When he announced the creation of the Specific Claims Tribunal, Prime Minister Stephen Harper claimed it was a “historic” moment that would “revolutionize” the handling of historical grievances from First Nations.

(Video: APTN National News story on the initial Specific Claims Tribunal announcement on June 12, 2007.)

By Jorge Barrera
APTN National News
When he announced the creation of the Specific Claims Tribunal, Prime Minister Stephen Harper claimed it was a “historic” moment that would “revolutionize” the handling of historical grievances from First Nations.

Now the tribunal is on the edge of failure and the Harper government is doing nothing to alter this fate, according to a report quietly tabled by the Harper government in Parliament on Nov. 7.

Justice Harry Slade, chair of the Specific Claims Tribunal (SCT), said in the report that the tribunal will fail unless the Harper government appoints another full-time judge to handle the rising workload within the next year.

Slade also warned that the tribunal’s independence is also threatened because of Ottawa’s decision to streamline the management of quasi-judicial tribunals. He said the issues have been raised with both the Justice Minister and the Minister of Aboriginal Affairs, to no avail.

“The tribunal has neither a sufficient number of members to address its present and future case load in a timely manner, if at all,” said Slade, in the report, which was submitted to the Aboriginal Affairs Minister on Sept. 30. “Nor is it…assured of its ability to continue to function with adequate protection of its independence. These concerns have been raised with (the ministers). There has been no adequate response.”

The tribunal currently only has one full-time judge, which is Slade, and two part time judges, Justice Joanne Mainville and Justice Larry Whalen. The Act that created the tribunal called for a roster of six full-time judges.

The tribunal currently has 61 active claims on its docket and it will take the tribunal over two years to deal with them, said Slade, in the report.

“The number of tribunal members falls far short of the numbers contemplated by the Act,” said Slade, in the report. Slade’s term expires Dec. 11, 2015.

Slade said the Harper government’s decision to streamline the administration of 11 tribunals also undercuts the SCT’s independence. He said the change also breached the Act which stated First Nations would be consulted on any changes to the tribunal.

The federal government created Administrative Tribunals Support Services Canada (ATSSC) in the last federal budget.

“Concerns over the impact of the ATSSC on institutional and judicial independence of the tribunal, both in fact and as perceived, and the lack of consultation with First Nations have not been addressed,” wrote Slade.

The report’s findings are a far cry from the promises Harper made when he unveiled the tribunal during a press conference on Parliament Hill with former Aboriginal affairs minister Jim Prentice and former Assembly of First Nations national chief Phil Fontaine. On that day in June 12, 2007, the prime minister said the tribunal would “revolutionize the claims resolution process.”

Harper told reporters the tribunal presented a “historic breakthrough on the intractable logjam of specific claims” that would improve the relationship between the Crown and First Nations. “Instead of letting disputes over land and compensation drag on forever fueling anger and frustration and uncertainty, they will be solved once and for all by impartial judges,” said Harper, at the time.

The reality played out much differently. The Harper government has now twice challenged the tribunal’s decisions and, despite a rising case load, the tribunal continues to be understaffed.

“Harper has once again demonstrated his lack of commitment to resolving land claims and his patent disregard for the rule of law,” said Union of BC Indian Chiefs President Grand Chief Stewart Phillip.  “The tribunal’s report makes it clear Harper is walking away from his government’s lawful obligations by sabotaging the very body it set up to bring about resolution and certainty for all Canadians. The report signals the death of this process and warns of a return to the courts and where necessary to the land and to the streets to exercise and defend our rights as we did at Oka and Ipperwash.”

Specific claims stem from historical grievances around the mismanagement of trust funds and the loss of lands.

NDP Aboriginal affairs critic Jean Crowder said it was “shocking” the minister has not acted on the concerns raised by Slade.

“Foot-dragging on appointing judges is a long-standing problem and we see the effects not just in the inability of this tribunal to do its work, but in a delay of justice for many people involved with the court system,” said Crowder. “I also raised concerns about the support for research and consultation around relevant documents when we debated the legislation to create the tribunal.”

Liberal Aboriginal affairs critic Carolyn Bennett said the Harper government continues to fail on the First Nation file.

“Despite claiming their new approach would speed up resolution of issues related to the Crown upholding its treaty and fiduciary obligations to First Nations, the government has consistently undermined their own process by slashing funding for claims research, dragging successful claimants through the courts and have now left the Tribunal short of members,” said Bennett.  “The government’s failure to respect treaties with Aboriginal communities and its ongoing tactics to delay access to justice, is unconscionable.”

Aboriginal Affairs Minister Bernard Valcourt’s office did not respond to any of the issues raised by the report when contacted by APTN National News.

“Our government is committed to achieving fair and timely resolution for First Nation specific claims, for all Canadians,” said Valcourt, in an emailed statement.

Valcourt’s office has played coy with the report. APTN National News contacted Valcourt’s communications officials in late October about the expected tabling of the report. On Nov. 5, two days before it was tabled, his officials told APTN National News to expect it to be tabled in “the coming weeks.”

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