Grants to First Nations to settle specific claims negotiated by Canada and/or awarded by the specific claims tribunal and to Indigenous groups to settle special claims
Table of contents
- 1. Introduction
- 2. Legal and policy authority
- 3. Purpose, program objectives and expected results
- 4. Eligibility
- 5. Type and nature of eligible expenditures
- 6. Total Canadian government funding and stacking limits
- 7. Method for determining the amount of funding
- 8. Maximum amount payable
- 9. Basis on which payments will be made
- 10. Application requirements and assessment criteria
- 11. Due diligence and reporting
- 12. Official languages
- 13. Other terms and conditions
1. Introduction
Specific claims are claims made by a First Nation against the federal government which relate to the administration of land or other First Nations assets and to the fulfillment of First Nations treaties. The primary objective of the Specific Claims Policy is to discharge outstanding legal obligations of the federal government through negotiated settlement agreements.
In specific claim settlement agreements, Canada provides financial compensation in exchange for the First Nation providing appropriate releases and indemnities to support finality such that the claim will not be brought against Canada again. The Specific Claims Policy provides that settlements will not lead to third parties being dispossessed. In specific claims where reserve land was illegally taken from a First Nation or was not provided as required, the settlement may include provisions to create reserve land in accordance with Canada's Additions to Reserve (ATR) and Reserve Creation Policy.
The Specific Claims Tribunal, (the Tribunal) is an independent adjudicative body established by statute in October 2008 with the authority to make binding decisions in respect of the validity of specific claims and compensation to a maximum value of $150 million per claim. First Nations may refer a claim to the Tribunal where Canada agrees to do so, when their claim is not accepted for negotiation by Canada or when the process of accepting or negotiating the claim exceeds 3 years.
The Specific Claims Settlement Fund, (settlement fund) was created in December 2009 and initially resourced at that time at $250 million annually for 10 years to pay out settlement agreements and awards of the Tribunal. In subsequent years, the Specific Claims Settlement Fund has been replenished with increased funding, reflecting the accelerated pace of claims settlements.
A less common category of claims known as special claims exists. Special claims are those claims, the substance of which does not fall precisely within the ambit of the specific or comprehensive claims policies, but for which compelling legal, moral, political and policy reasons exist to respond to them. Special claims require a separate source of funds and are not paid out of the funds for the settlement of specific claims. Unlike specific claims, First Nations, Inuit, and section 35 rights-bearing Métis groups are all eligible to have special claims addressed through alternative mechanisms, including Recognition of Indigenous Rights and Self-Determination discussion tables pursuant to cabinet-approved mandates.
2. Legal and policy authority
Department of Crown-Indigenous Relations and Northern Affairs Act, S.C. 2019, c. 29, s. 337
Specific Claims Tribunal Act, R.S.C., 2008, c. 22
3. Purpose, program objectives and expected results
Specific claims
The primary purpose of the Specific Claims Program is to provide financial compensation to First Nations in exchange for legal certainty for all Canadians regarding First Nations' legally-based historic claims against Canada concerning the management of their lands and assets as well as the fulfilment of certain treaty obligations.
The primary objectives of the program are to:
- make Canada's decision on whether to proceed with negotiating specific claims as quickly and with as much collaboration as possible in light of the overall policy objectives of reconciliation and discharging the federal government's outstanding lawful obligations to First Nations and within a timeframe of 3 years as set out in legislation
- where specific claims are accepted for negotiation, complete negotiations as quickly and with as much collaboration as possible in light of the overall policy objectives of reconciliation and discharging the federal government's outstanding lawful obligations to First Nations and within a timeframe of 3 years as set out in legislation
- support the Department of Justice in proceedings before the Specific Claims Tribunal such that Canada's positions before the Tribunal take into account specific claims policy considerations and promote opportunities to settle specific claims outside of the adjudicative process
The CIRNAC Departmental Results Framework includes Specific Claims under the Program Inventory (Resolution and Partnerships) of Crown-Indigenous Relations.
This initiative aligns with the departmental result: Past injustices are recognized and resolved. The planned results are measured by the following performance indicator:
- Number of specific claims settled by the department
It also aligns with the United Nations Declaration on the Rights of Indigenous Peoples preamble paragraph 6:
Concerned that Indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.
Special claims
Program objectives are met through Recognition of Indigenous Rights and Self-Determination (RIRSD) discussion tables. These are flexible negotiation forums where Indigenous groups can advance their rights and interests. These discussions are a collaborative mandate development exercise that begin with the recognition of rights and seek to achieve common understandings, mutual agreement, and practical arrangements to improve the Indigenous-Crown relationship and discuss issues that may not be addressed within existing policy frameworks. Accordingly, RIRSD tables ensure special claims are resolved with finality in a faster, fairer and more transparent way. Expected results of special claims include advancing reconciliation with First Nations, Inuit, and section 35 rights-bearing Métis groups, addressing historical grievances and outstanding claims and resolving past injustices.
This initiative aligns with the departmental result "Indigenous peoples determine their political, economic, social and cultural development."
Program indicators:
- Number of treaties, self-government agreements and other constructive arrangements that have been concluded
- Percentage of Indigenous people with whom treaties, self-government agreements and other constructive arrangements have been concluded
It also aligns with the with the United Nations Declaration on the Rights of Indigenous Peoples, article 3:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
4. Eligibility
Eligible recipients
Specific claims
- First Nations and individuals pursuant to the Indian Act and the Specific Claims Tribunal Act. Individual means those individual members who chose the severalty route, that is those who chose to live outside a reserve but are entitled to receive lands pursuant to Treaty Number 8
- Associations of rural municipalities for payment to rural municipalities for the loss of their tax base further to provisions in Treaty Land Entitlement settlement agreements
- Provinces for the payment to school districts of compensation for the loss of their tax further to provisions in Treaty Land Entitlement settlement agreements or severalty specific claims settlement agreements
- Provinces for the repayment of compensation amounts attributable to Canada's decision in the paylist analysis to include individuals previously included in another First Nation's Treaty Land Entitlement analysis double counts
Special claims
Indigenous groups, including First Nations, Inuit, and section 35 rights-bearing Métis.
Eligible initiatives and projects
Specific Claims Settlement Agreements achieved by Canada with First Nations.
Advance payment agreements achieved by Canada with First Nations.
Special Claims Settlement Agreements or Interim Agreements achieved by Indigenous groups and Canada through other mechanisms, including RIRSD processes.
Decisions that award monetary compensation rendered by the Specific Claims Tribunal.
5. Type and nature of eligible expenditures
The eligible expenditures for specific claims will be compensation to First Nations as negotiated by Canada and stipulated in settlement agreements or advance payment agreements, and monetary compensation established by the Specific Claims Tribunal to First Nations. Funds will be used to cover the costs of:
- payments further to specific claims settlement agreements negotiated between Canada and First Nations. The settlements concern specific claims that may be in either the specific claims or the tribunal processes. For clarity, these payments may include amounts related to, but not limited to financial losses based on legal principles, interest attributable to Canada's payment of settlements in instalments, reasonable negotiation costs including amounts to reimburse Canada for loans obtained by First Nations to participate in negotiations and surveys and environmental assessments costs related to a land component in the settlement agreement such as provision for an ATR. For settlement agreements for specific claims where there is an associated loan pursuant to the Loans to Native Claimants program, an amount equal to the value of the loan will be deducted from the total financial compensation paid to the First Nation and this amount will be directed to repay the loan. Where a settlement agreement concerns a claim in the tribunal process, payment may also include an amount for the First Nation's costs for its participation in that process. However, any amount provided to the claimant by the Crown for the purpose of bringing the claim before the tribunal shall be deducted.
- payments further to advance payment agreements negotiated between Canada and First Nations in relation to specific claims under negotiation. Advance payments may be issued to First Nations that are negotiating high value specific claims that are expected to require an extended period between the start of negotiations and settlement. Advance payments will be deducted from eventual settlement or judicially awarded compensation.
- awards issued by the Specific Claims Tribunal. The Tribunal shall deduct from any award of costs in favour of the claimant, any amount provided to the claimant by the Crown for the purpose of bringing the claim before the Tribunal. If the compensation is to be paid out in instalments, multi-year payments, interest costs will also be included.
Funds, not from the Specific Claims Settlement Fund, will also be used for special claims. The eligible expenditures for special claims, which may include interim or final settlements derived from RIRSD discussions, will be compensation to Indigenous groups as negotiated by Canada and stipulated in agreements pursuant to Cabinet-approved mandates.
Due to the nature of the payments, the use of monetary compensation received by a First Nation is not subject to expenditure control by either Canada or the Specific Claims Tribunal. These payments are designed to achieve full and final settlement of a specific claim and are not considered Indian moneys pursuant to the Indian Act. Charges to the Specific Claims Settlement Fund can include settlement agreements negotiated by Canada or awarded by the Specific Claims Tribunal, including amounts to recover negotiation loans and, in special circumstances, interest on settlement payments made by instalments not exceeding a 5-year period from the date of the award by the Specific Claims Tribunal or as negotiated by Canada. In return, Canada will receive a full indemnification or release from the claimant Indian Band on all issues pertaining to the specific claim settled. In addition, when a First Nation receives monetary compensation as a result of a Specific Claims Tribunal decision awarding compensation, Canada is statutorily released and indemnified by the First Nation in relation to that claim.
6. Total Canadian government funding and stacking limits
Total government assistance for the same purpose and eligible expenditures shall not exceed 100% of the eligible expenditures.
7. Method for determining the amount of funding
Specific claims
The grant amount is determined through a specific claim settlement agreement between Canada and the claimant First Nation, an advance payment agreement between Canada and the claimant First Nation, or through monetary awards established by the Specific Claims Tribunal.
Special claims
The grant amount is determined through a final or interim special claim settlement agreement between Canada and the Indigenous group in accordance with a cabinet-approved mandate.
8. Maximum amount payable
The maximum amount payable to the eligible recipients will not exceed the amount appropriated by Parliament for this purpose.
Specific claims
The maximum amount payable is $150 million per claim. The compensation determined by a settlement agreement between Canada and the claimant First Nation, an advance payment agreement between Canada and the claimant First Nation, or monetary awards established by the Specific Claims Tribunal will typically be paid in 1 lump-sum. The maximum amount payable includes advance payments made prior to finalization of the settlement, if applicable. However, special circumstances may occur where scheduled payments are necessary. For example, the Specific Claims Tribunal could issue several decisions establishing monetary awards and Canada could achieve several settlement agreements in a given fiscal year. In this instance Canada may be obliged to make instalment payments until the Specific Claims Settlement Fund is replenished through supplementary estimates. In all instances, Canada will reserve the right to pay out all outstanding amounts.
Specific claims exceeding $150 million
Settlements where compensation exceeds $150 million must be sourced from funds drawn down from the fiscal framework following Cabinet approval of a settlement mandate. However, advance payments for such claims must be sourced from the Specific Claims Settlement Fund and do not require Cabinet approval.
Special claims
The maximum amount payable will vary in accordance with settlements negotiated between Canada and the respective eligible recipient. This applies to funding identified in negotiated final and interim agreements derived from RIRSD discussions. Amounts provided will not exceed applicable financial mandates.
9. Basis on which payments will be made
Payments are made in accordance with the terms and conditions detailed in negotiated agreements or other Cabinet-approved mandates. Compensation payable pursuant to a settlement agreement or advance payment agreement, or an award established by the Specific Claims Tribunal will be paid in one lump sum. Only under special circumstances will payments be made in instalments and pursuant to the Specific Claims Tribunal Act or other Cabinet-approved mandates, the schedule of payments will be for a maximum of 5 years.
10. Application requirements and assessment criteria
A specific claim must be submitted and filed with the Minister of Crown-Indigenous Relations and must meet reasonable standards with respect to the type of information required.
11. Due diligence and reporting
The evaluation process or criteria to be used to assess the effectiveness of the program will be addressed through the Performance Measurement Strategy. This examination may include, but is not limited to programming or initiative rationale, success, cost-effectiveness, design and delivery, results achieved and the nature of impacts and effects resulting from the implementation of the initiative.
12. Official languages
Where a program supports activities that may be delivered to members of either official language community, access to services from the recipient will be provided in both official languages where there is significant demand and part roman numeral 4 of the Official Languages Act is applicable. In addition, the department will ensure that the design and the delivery of programs respect the obligations of the Government of Canada as set out in part roman numeral 7 of the Official Languages Act.
13. Other terms and conditions
None.
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