The Power of Perspectives

The Canadian Bar Association

Kim Covert

First Nation claims: Tribunal practice directions must consider funding available to claimants

September 5 2018 5 September 2018

 

Stable, adequate funding is a clear concern for the CBA’s Aboriginal Law Section when it comes to appearances before the Specific Claims Tribunal, which handles claims made by First Nations alleging that the federal government has violated a treaty or the Indian Act.

Commenting on draft practice directions which were circulated among members of the Tribunal’s Advisory Committee – which includes Section representatives – members stated the general need for the Tribunal to consider the financial implications of any new procedural steps.

Acknowledging that the Tribunal has no power over funding levels, the Section notes claimants “often have access to significantly less resources than respondents” and that the Tribunal needs to be attuned to this lack.

“If not already the Tribunal’s practice, we recommend that the final practice directions be sent to the funding unit at Crown – Indigenous Relations and Northern Affairs Canada to ensure they are informed about new activities potentially available at the Tribunal, and able to determine appropriate funding levels for those activities.”

The Tribunal’s next annual report should also reiterate the need for increased funding, the Section says.

The four draft practice directions cover early case planning, settlement conferences, stays of proceedings for negotiations, and a revision to the mediation practice direction.

Among other things, the Section recommends:

  • The practice direction should state explicitly that disclosure in the course of an early case planning conference does not automatically make the disclosed materials evidence in the claim, and existence of an expert report doesn’t preclude parties from seeking out further or updated evidence on the same issue
  • Removing examples that may not be relevant to mediation before the Tribunal, and fixing discrepancies between the French and English versions of the Mediation Practice Direction
  • That the settlement conference practice directions include criteria for when the Tribunal might judge that a settlement conference should be called

While the Section appreciates the Tribunal setting explicit standards and timelines to prevent parties from abandoning claims under the pretext of negotiation, the list of requirements for proceedings to be suspended “could take a significant time to produce, forcing parties to remain at the Tribunal while engaged initial negotiations.” This could create a funding issue, the Section says.

“Negotiation funding … is unavailable while the specific claim is actively before the Tribunal. There could, therefore, be financial benefits for claimants to be before the negotiation funding unit instead of the Tribunal’s funding unit.

“Unless funding levels change at CIRNAC, the Tribunal will need to consider the financial implications on claimants of its refusal to suspend proceedings, particularly when raised by the claimant.”

The Section also recommends allowing renewable six-month terms for suspension of proceedings if requested jointly by the parties, to give them time to obtain the type of expert information that might be necessary to reach a settlement.

 

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