Aboriginal Claims: An issue that affects all Canadians

On an ongoing basis many First Nation communities in Canada, including those within the Atlantic region, exercise their rights to research, establish, negotiate and ultimately claim proper compensation from the Government of Canada with respect to Specific Land Claims.

What are Aboriginal Land Claims?

In Canada, Aboriginal Land Claims are executed in two different forms: Specific Claims and Comprehensive Claims.

Comprehensive Claims deal with unfinished business related to treaty-making; in other words, relevant subject matter which was not originally dealt with and therefore requires a new agreement.

Specific Claims deal with unhonoured promises made by the Government of Canada ( (and previously, the British Crown) to First Nations through treaty-making or otherwise; or where a First Nation objects to the way the government has mishandled assets which are considered to be owned or controlled by that First Nation (for example, the resources of the land in dispute). When a claim is established by the First Nation, the government is then to negotiate with the First Nation to reach settlements which honour the government’s obligations. This process can involve remedial actions which affect Provincial and Territorial governments as well.

What does this mean for you? 

Successful Specific Claims may entitle First Nations to compensation. If you are a member of a First Nation which has reached a successful conclusion to a Specific Claim, you may be entitled to compensation.

If you own or otherwise reside on land in Nova Scotia, that property potentially could be the subject of a Specific Claim.

The Role of the Federal Government

On behalf of the British Crown and its own predecessors, the current Government of Canada is responsible for receiving Specific Claims and working with First Nations to right past wrongs.

The government-issued Specific Claims Policy and Process Guide provides the framework approach for First Nations to draw up, submit, and seek compensation for their Specific Claims. The Government of Canada is responsible for contributing funding for the First Nations’ research and claims submission, responding to claims, negotiating with First Nations, as well as providing an independent Tribunal to make decisions on claims which are not resolved during the negotiation process.

Recently, substantial cuts to the Specific Claims process in Canada have caused concern for Treaty and Aboriginal Rights Research Centres and for individual First Nations with ongoing and planned claims. You can read more about this and the potential impact in this APTN article.

Positive Developments for First Nations at the Tribunal Level

Amidst the Government of Canada’s substantial cuts to the Specific Claims process, the government itself has been the target of a serious reprimand from the Specific Claims Tribunal with respect to its dealings with First Nations claimants.

Specific Claims can take years of research (through archival documents, in the community, etc.), many hours of legal work (hashing out the actual grounds for the claim), and much dedication from the First Nations claimants. The claims are sometimes then met with a drawn-out negotiation process. Should a solution not be reached, the Specific Claims Tribunal is available to provide independent adjudication. This last step has recently rendered a surprisingly delightful decision, at least for First Nations looking to proceed to the Tribunal.

In his decision regarding a claim from the Aundeck Omni Kaning (AOK) First Nation in January 2014, Judge Patrick Smith of the Specific Claims Tribunal criticized the current federal administration for its unfair approach when responding to First Nations’ claims.

In his decision, Justice Smith outlined a number of useful points regarding the case law with respect to negotiating with First Nations. He reviewed the government’s responsibility to negotiate in good faith with First Nations. At paragraph 90 of his decision, Justice Smith found that this obligation meant that the government could not be inflexible, because “ […] otherwise they cannot be considered negotiations. Inflexibility restricts any meaningful discussion and undermines, nullifies and contaminates the process with unfairness.”  At paragraph 89 he strongly criticized the government for consistently responding to a certain kind of Specific Claim in a way that is “paternalistic, self-serving, arbitrary and disrespectful of First Nations.”

You can read Justice Smith’s decision regarding the AOK First Nation claim here.

Despite the financial cuts and the Government of Canada’s recent treatment of the Specific Claims process – First Nations will continue to seek justice. This is a live issue for all Canadians.

Contact Natalie Clifford at 902-240-4080 or by email at natalie@cslegal.ca.

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