The BCSCWG recently created an online resource for Indigenous Nations seeking to enact their Indigenous laws in relation to specific claims resolution. Our Laws Arise from the Land includes a discussion paper by Ardith Walpetko We’dalx Walkem and video interviews with community experts.
As well, from 2017 to present, the BC Specific Claims Working Group (BCSCWG) has produced several reports examining critical issues in in specific claims processes.
This work has addressed four key topics:
- Creation of an independent process
- Timeliness and the “backlog”
- Canada’s conduct at the Specific Claims Tribunal
- Integrating Indigenous legal systems into specific claims processes
These studies have repeatedly shown the need for a truly independent specific claims process, one built equally on Indigenous and Canadian legal systems. All are available here (from the UBCIC Library and Resource Centre; scroll down to "Specific Claims Publications") or by clicking on the report titles, below.
1. Creation of an Independent Process
- This report was the BCSCWG submission to the AFN engagement session on an independent process. It reflects the views of BC Indigenous Nations and their representative organizations regarding the creation of an independent specific claims process.
- This report (a) suggests a possible underlying framework for how a new independent body might operate, and (b) recommends development of an advisory council of Indigenous legal experts to make recommendations regarding the integration of Indigenous laws into new independent claims resolution process.
- This report was the BCSCWG submission to the AFN-INAC Joint Technical Working Group on Specific Claims. It reflects the views of BC Indigenous Nations and representative organizations, as expressed in the two-day AFN Western Dialogue Session held in Vancouver in June 2017 and in an online survey.
- BC Indigenous Nations made clear that the specific claims process needs fundamental restructuring if it was to offer meaningful redress. This report identified five clear action items that were essential to real claims reform. Creation of an independent process and integration of Indigenous laws were two such action items.
2. Timeliness and the “Backlog”
- This report is a follow-up to the 2018 report that analyzed data on Canada’s failure to respond to claims within the three-year timeline mandated by federal legislation.
- This supplementary review found that of the 70 late claims identified in November 2018, 44 claims (63 percent) still had no response from Canada. Further, it found that Canada has continued to miss the legislated three-year deadline.
- Under the federal Specific Claims Tribunal Act, Canada must respond to an Indigenous Nation’s claim within three years of the claim being filed. This report analyzed evidence to demonstrate that Canada was not only failing to meet this deadline in the majority (65 percent) of cases, but also that the problem of delays was worsening. Further, Canada was failing to communicate with Indigenous Nations about these delays.
3. Canada’s Conduct at the Specific Claims Tribunal
- This report built upon the 2018 report (“Litigation as Usual?”) by reporting on the experiences of Nations from across Canada. It was based on a national survey.
- This research found that Canada’s adversarial conduct at the Tribunal occurred because of institutionalized and systemic bias that exists across specific claims processes.
- This research arose because Canada requested feedback on its conduct at the Tribunal. As such, the BCSCWG created a survey for BC Indigenous Nations and legal counsel who have taken claims to the Tribunal.
- The research found a very clear pattern. There were three key challenges that survey respondents identified: (1) An adversarial legal approach by Canada’s legal counsel; (2) A lack of resources that creates an imbalance in power and capacity in which Indigenous Nations are at a disadvantage; (3) Lengthy delays that stall proceedings and increase costs and create uncertainties for Indigenous Nations.
4. Integration of Indigenous laws into Speecific Claims
- This report is written by Ardith Walpetko We’dalx It proposes an approach to specific claims based on Indigenous legal orders.
- It identifies six principles for integration of Indigenous legal traditions in specific claims processes: (1) space for a plurality of Indigenous legal traditions; (2) recognition that resolution is ongoing; (3) expanded notions of resolution; (4) a multi-perspective process that incorporates Indigenous perspectives on harm; (5) shared decision-making; (6) expanded evidence to support specific claims.
- This is a multi-media online resource to support Indigenous Nations in considering how to use their Indigenous laws and legal protocols in resolving historical land-related grievances and transforming Canada’s specific claims process.
- It contains the 2018 discussion paper (A New Way Forward) along with several video interviews with community members who share their experiences.