Redefining “negotiation”: court blasts Crown for unilateral control of specific claims

What does negotiation mean?

This was the basic question that Justice Patrick Smith answered in a recent decision from the Specific Claims Tribunal about whether or not the Tribunal had the jurisdiction to hear Aundeck Omni Kaning First Nation’s (“AOK”) claim against Canada.[1] Justice Smith found that the Crown was “paternalistic, self-serving, arbitrary and disrespectful of First Nations” when it set in place a process that allowed the Crown to unilaterally control the Specific Claims process including making “take it or leave it” offers to First Nations. That sort of conduct, said Justice Smith, is not “negotiation”.

The Facts

AOK submitted a claim in 2008 to the Ministry of Indian Affairs and Northern Development about the department’s mismanagement of funds in the early twentieth century. The claim was accepted by Canada for negotiation on November 25, 2011.

On March 28, 2012, Canada made an offer to settle – which AOK had to accept within 90 days (by June 28, 2012) otherwise the offer would ‘expire’ and Canada would ‘close’ the file.

AOK did not accept the offer, and filed a claim with the Tribunal on August 7, 2012.

Canada brought an application for a ruling that the Tribunal did not have jurisdiction to hear the claim based on section 16(1) of the Specific Claims Tribunal Act (“SCTA”). That section limits when a First Nation can bring a claim to the Tribunal.

In this case, Canada argued that there was no jurisdiction because AOK failed to pass any of the following limitations:

• three years from the date the claim was accepted by the Minister for negotiation had not yet passed;
• the Minister had not consented in writing to the First Nation bringing the claim; or
• the Minister had not notified the First Nation that the claim would not be accepted into negotiations.

It was the last limitation that became the focus here, since it was apparent that the three years had not lapsed since the day AOK’s claim was accepted for negotiation in November 2011, and AOK had not received written consent from the Minister to bring the claim.

The last limitation turns on the question: how do you define negotiation when it comes to Specific Claims?

Canada’s Definition of ‘Negotiate’

Canada argued that the claim was accepted for negotiations. What happened next is that the Specific Claims Branch Valuation and Mandating Unit determined it was a ‘small value claim’, instead of a normal claim. That means they determined it was worth less than $3 million. No evidence was provided to the Tribunal or to the First Nation about how Canada came to that conclusion.

After that, Canada sent an offer for settlement. Canada argued that even though in the settlement offer, it said that if AOK did not accept the offer within 90 days, the file would be closed, it was technically still open for negotiations if AOK could produce new evidence that would persuade Canada to re-consider its position.

AOK’s Definition of ‘Negotiate’

AOK argued that by classifying this as a small value claim, making a single offer that was non-negotiable, and stating that the file would be closed should AOK not accept the offer, Canada was providing an ultimatum – this was not negotiation. So, AOK argue that it could bring its claim: Canada had rejected its claim in whole or in part for negotiation.

Justice Smith’s Definition of ‘Negotiate’

The SCTA doesn’t define ‘negotiate’. So, Justice Smith turned to principles of statutory interpretation to assist with his conclusion that the definition of ‘negotiate’ had to be consistent with section 35 of the Constitution, the principles of reconciliation and good faith, and the honour of the Crown. He went through the case law that articulates important principles relevant for interpreting Crown-Aboriginal agreements and engagement, including:

• any ambiguous statutory provisions “relating to Indians” must be “resolved in favour of the Indians”;
• the principle of reconciliation is best achieved through “good faith” negotiations; and
•  “good faith” is implicit in the concept of the Honour of the Crown – which is always at stake when the Crown is involved in negotiation and settlement of Aboriginal claims.

Based on this, Justice Smith was clear on what was NOT ‘negotiations’ in this case:

• Deciding to employ the small value claim process prevented any meaningful negotiation from taking place. The decision to employ the small value claim process was done without any input from or consultation with AOK. It was unknown to AOK what Canada relied on to come up with its offer, so Justice Smith also found it was impossible for AOK to know what new evidence it could have provided to persuade to re-consider its position.

• Making a ‘take it or leave it’ offer to settle without discussion, and imposing a 90 day time limit also fell far short of good faith negotiations.  At a minimum, good faith negotiation requires flexibility. Inflexibility restricts meaningful discussions, “nullifies and contaminates the process with unfairness.”[2]

Justice Smith also responded directly to a position taken by Canada, which argued that the SCTA gives the Crown considerable discretion over accepting, negotiating or not negotiating claims – “essentially “controlling the clock”.”[3]

Justice Smith’s finding on this point was quite clear:

“I do not agree. This position, along with the process employed by the Specific Claims Branch for small value claims in relation to this Claim, and perhaps many other, is, frankly, paternalistic, self-serving, arbitrary and disrespectful of First Nations. It falls short of upholding the honour of the Crown, and its implied principle of “good faith” required in all negotiations Canada undertakes with First Nations.”[4]

Why Is This Important?

This is an honest and frank assessment of a flaw in the specific claims process: Canada’s “control of the clock” in many instances does not allow for good faith negotiations.

For First Nations’ claims accepted by the Ministry to proceed under this ‘expedited’ or ‘small value claim’ process, the opportunity for meaningful negotiation towards fair settlement is limited from the beginning.  The initial decision classifying the claim is made unilaterally, and it’s followed with a settlement offer presented as an ultimatum: accept this within 90 days, or your file is closed.

If the specific claims process is truly supposed to be about resolving outstanding legal obligations and moving closer to the objective of reconciliation, then this approach – described by Justice Smith as “paternalistic, self-service, arbitrary and disrespectful” – needs to change.  It needs to start with adjusting the power imbalance that exists in this process, to make room for what ‘negotiating’ between First Nations and the Crown really should be: reconciliation.

By Cathy Guirguis