Summative Evaluation of the Specific Claims Action Plan

Purpose of the evaluation

The Evaluation, Performance Measurement and Review Branch of Aboriginal Affairs and Northern Development Canada (AANDC) undertook a summative evaluation of the Specific Claims Action Plan. The primary purpose of the evaluation is to obtain an independent and neutral perspective on how well the Action Plan is achieving its expected outcomes. Evaluation results were based on the analysis and triangulation of data obtained through document and data review, file review and key informant interviews. The Terms of Reference for the evaluation were approved at the Evaluation, Performance Measurement and Review Committee in April of 2012. Fieldwork was conducted between October and December 2012.

Objective and intended results of the Action Plan

The overall objective of the Action Plan is to ensure that specific claims are resolved with finality in a faster, fairer and more transparent way.

The key results that AANDC set-out to achieve in the first three-to five-years are:

• The establishment and operation of the Specific Claims Tribunal, including the Registry to support the work of the Tribunal;
• Establishment and operation of mediation services for First Nations who are negotiating their specific claim with Canada;
• Complete review and assessment of all existing and new specific claims by the end of the fiscal year 2010-2011;
• Increase in the number of negotiation tables from 100 to 120 annually; and
• Increase the number of specific claims that are successfully resolved through negotiations or through a hearing conducted by the Specific Claims Tribunal.

These results are expected to contribute to the achievement of the following long-term outcomes:

• Justice for First Nation claimants;
• Certainty for government, industry and Canadians respecting disputed lands, resources or relationships; and
• Sustainable use of lands and resources.

Evaluation Findings

AANDC has put in place practices and procedures to cover all aspects of the claim process. The Department has created clear and efficient processes to facilitate the participation of other parties, whose actions are beyond the control of AANDC and the Department of Justice, but that can impact the ability to meet the three-year timeframe for negotiations.

Achievements include:

• The Specific Claims Tribunal has been established, including the Registry, which supports the work of the Tribunal.
• The backlog of claims in assessment at the time the Specific Claims Tribunal Act came into effect has been cleared.
• The total number of claims in negotiation has increased significantly under the Action Plan.
• The preconditions for justice and certainty are in place within the specific claims process and the claims that have been settled through negotiations are largely achieving these outcomes.
• Over time, negotiated settlements, decisions from the Tribunal and the body of law that will emerge from the Tribunal are expected to contribute to a greater level of justice and certainty.
• Specific Claim settlements are contributing to the sustainable use of lands and resources, most notably through the additions to reserve process.

Areas for improvements:

• The number of claims resolved (settled) through negotiations has not yet increased under the Action Plan. However, a number of the backlog claims are currently in the negotiation phase, which may contribute to this outcome in the near future.
• Though mediation services are available, access has been minimal under the current operational model and therefore, the fourth pillar of the Action Plan, better access to mediation, is not being achieved.

Risks identified:

• Significant numbers of specific claims have been concluded without finality and could proceed to the Tribunal, or be submitted as a new claim to the specific claims process.
• Potential risk that the Tribunal decisions on validity could impact the legal assessment of unresolved claims should they be resubmitted to the Specific Claims Branch.
• It is anticipated that more pressure may be placed on the Additions to Reserves process as the backlog claims currently in the negotiation phase are concluded.
• Current level of funding for settlement may be insufficient to address the expected volume of compensation that will be needed.
• Aboriginal organizations are not acknowledging improvements made to the specific claims process, which may affect confidence in the integrity and effectiveness of the new process to resolve specific claims.

Evaluation Recommendations

1. As part of the risk assessment framework that is to be undertaken by Treaties and Aboriginal Government Senior Assistance Deputy Minister (recommendation 2 of the Internal Audit Report of November 2012), include a risk strategy to manage the large number of claims that are considered "concluded" by AANDC but which have the potential to be submitted to the Tribunal or submitted as a new claim to the specific claims process. This risk strategy should be updated as decisions of the Tribunal are rendered.
2. Through discussions with First Nation leaders, develop and implement a strategy to allow for greater use of mediation services.
3. Put in place mechanisms that support the relationship between the Action Plan and the Additions to Reserves process.
4. Address current funding for settlement of specific claims as it may be insufficient to address the expected volume of compensation that will be required.

1. Management Response

The Specific Claims Action Plan was announced by the Prime Minister in June 2007. As confirmed by the Formative Evaluation, which was completed in April 2011, and by the Summative Evaluation, much progress has been made with the implementation of the Action Plan. The Summative Evaluation report also makes findings that were not anticipated by the Specific Claims Branch, specifically in respect to mediation services, and the Addition to Reserve Policy. The Specific Claims Branch will examine those findings more closely, and will address them taking into account the intention of the Action Plan, the confines of the Specific Claims Tribunal Act, and the government's commitment to the quick and fair resolution of specific claims.

Response to Recommendation 1: A recent Audit of the Specific Claims process was completed in the fall 2012. As part of the Management Response Action Plan, the Senior Assistant Deputy Minister, Treaties and Aboriginal Government (TAG) committed that a Specific Claims risk assessment framework will be undertaken and integrated into the corporate risk assessment framework. The Specific Claims risk assessment framework will address elements unique to the Specific Claims process, including the impact of the Specific Claims Tribunal. It is noted that it is entirely at the discretion of a First Nation to refer a claim to the Tribunal. In this regard, any estimate of the number of claims that might be referred to the Tribunal would be speculative. That being said, Specific Claims Branch will ensure that the volume of concluded claims with the potential to be submitted to the Tribunal, or the Specific Claims Branch, is considered in the risk assessment.

Response to Recommendation 2: The report does not distinguish between better access to mediation services, which was the Action Plan commitment, and use by negotiating parties of mediation services. Access to independent mediation services has been made easier with the creation of the Mediation Services Unit. AANDC does not administer the mediation process; the Mediation Services Unit facilitates access to independent mediation services by providing administrative support to negotiating parties to use standing offers.

The document also notes that the Assembly of First Nations (AFN) has called "for the establishment of an independent mediation centre that could support all stages of the specific claims process, not only at the negotiation stage." The government's commitment, through Justice at Last, was to facilitate access to independent mediation services to overcome impediments in negotiation processes. This commitment was met.

The report recommends that "Through discussion with First Nation leaders, develop and implement a strategy for greater use of mediation services. This will assist in achieving commitments made under the Action Plan and in addressing First Nations' concerns." TAG remains ready to meet with First Nation leaders to explain the access to the mediation process and to do the same with individual First Nations who are in negotiations. Sessions will be offered to TAG's negotiators to refresh their knowledge of the use of mediation and ensure that First Nations are made aware that such services exist.

In response to recommendation 3: The Additions to Reserves (ATR) Policy is currently being amended by the Lands and Economic Development Sector, in consultation with the AFN. Further, the Specific Claims Lands Implementation Committee has been established within AANDC with members from the Specific Claims Branch and the Lands and Economic Development Sector, with representatives of both Headquarters and regions. This new committee will be a forum to identify and address issues arising from ATR opportunities arising from specific claims.

In response to recommendation 4: A $2.5 billion settlement fund was established as part of the Justice at Last initiative. The Specific Claims Settlement Fund is to pay for negotiated specific claim settlement agreements and for awards made by the Specific Claims Tribunal up to a value of $150 million per claim. The Specific Claims Settlement Fund is monitored closely by AANDC, and, pursuant to the Access Protocol, the Department of Finance and Treasury Board. The fund is set at $250 million per year over ten years (fiscal year 2018-2019) to ensure sufficient funding is available to allow Canada to meet its obligations stemming from negotiated settlements and awards of the Specific Claims Tribunal.

2. Action Plan

(Actions, Manager, Planned Start and Completion Dates to be completed by Specific Claims Branch)

I recommend this Management Response and Action Plan for approval by the Evaluation, Performance Measurement and Review Committee

Original signed on February 15, 2013, by:

Michel Burrowes
Director, Evaluation, Performance Measurement and Review Branch

I approve the above Management Response and Action Plan

Original signed on February 15, 2013, by:

Jean-Francois Tremblay
Senior Assistant Deputy Minister, Treaties and Aboriginal Government

The Management Response / Action Plan for the Summative Evaluation of the Specific Claims Action Plan were approved by the Evaluation, Performance Measurement and Review Committee on April 25, 2013.

1.1 Overview

The Evaluation, Performance Measurement and Review Branch (EPMRB) of Aboriginal Affairs and Northern Development Canada (AANDC) undertook a summative evaluation of the Specific Claims Action Plan (hereafter the Action Plan). The primary purpose of the evaluation is to obtain an independent and neutral perspective on how well the Action Plan is achieving its expected outcomes as well as to identify any unexpected impacts resulting from the Action Plan.

This report is divided into five sections. Section 1 provides an overview of the Action Plan; Section 2 describes the methodology associated with the evaluation; Sections 3 and 4 detail the evaluation findings that have emerged during the data collection process; and Section 5 provides conclusions and recommendations.

1.2 The Specific Claims Action Plan

2.1 Evaluation scope and timing

This summative evaluation of the Specific Claims Action Plan covers activities that occurred between the fiscal years 2008–2009 and part of 2012–2013. As the focus of the evaluation is on the Action Plan — not the entire specific claims process — the Specific Claims Tribunal and the Specific Claims Tribunal Registry were not included in the scope of the evaluation. While the Specific Claims Tribunal was formed as a result of the Action Plan, it is an independent adjudicative body and the activities of it and its Registry are beyond the direct influence of the Action Plan. However, the evaluation assessed how the Tribunal's operations have impacted the work of Department of Justice Canada, AANDC and First Nations. The evaluation also excludes any assessment of legal opinions provided by the Department of Justice in support of the specific claims process.

Terms of Reference for the evaluation were approved by AANDC's Evaluation Performance Measurement and Review Committee on April 23, 2012. Fieldwork was conducted between October and December 2012. EPMRB contracted the services of PRA Inc. to provide assistance during all stages of the evaluation process.

2.2 Evaluation issues and questions

The evaluation focussed on assessing the performance of the Action Plan, including the issue of effectiveness and the issue of efficiency and economy. An assessment of the relevance of the Action Plan is not included since it was covered in detail in the formative evaluation of the Action Plan completed in April 2011. Table 1 details the evaluation issues and questions covered by this evaluation.

Table 1: Evaluation Issues and Questions

2.3 Evaluation methods

The results of the evaluation are supported by findings that were collected using a number of research methods.

2.4 Quality Assurance

The evaluation was directed and managed by EPMRB in line with the EPMRB's Engagement Policy and Quality Control Process. Quality assurance has been provided through the activities of the working group and an advisory group comprising representatives from the Specific Claims Branch and the Department of Justice. Preliminary findings were presented to the working and advisory groups in December 2012.

2.5 Limitations

Due to the nature of specific claims, files often contain confidential and protected information. One challenge was to incorporate this information without compromising the confidentiality of claims. As a result, the evaluation is written in general terms without explicit reference to individual claims. Furthermore, legal opinions prepared by Department of Justice Canada were not reviewed as they are protected by solicitor-client privilege.

Because the Action Plan was launched only five years ago, long-term results cannot be fully assessed at this time. However, the evaluation was able to provide an assessment on the achievement of long-term results to date.

3.1 Achievement of medium-term results

AANDC set out to achieve medium-term results in the first three to five years of operations^{Footnote 5}. Table 2 provides a summary of the degree to which these expected results were achieved.

The following provides details of the evaluation findings related to each of the medium-term results.

3.1.2 Establishment and operations of mediation services

3.1.3 Completing research phase for all backlog claims

The Specific Claims Branch has eliminated the backlog of claims that were in the research and assessment stage at the time that the Specific Claims Tribunal Act came into effect in October 2008. Under the new model introduced with the Specific Claims Tribunal Act, a First Nations claimant can turn to the Tribunal if the Specific Claims Branch has not completed the research and assessment stage three years after a claim has been filed with the Minister of Aboriginal Affairs and Northern Development (met the minimum standard). In October 2008, a total of 541 files were in research and assessment. Three years later, in October 2011, all these files had been assessed and all of the associated First Nation claimants had been informed about the outcome of that assessment.

With the backlog cleared, the Specific Claims Branch does not anticipate difficulties in completing the research and assessment process for new claims submitted by First Nations. As illustrated in Figure 1, the number of new claims submitted to the Specific Claims Branch per year has varied between 22 and 52 during the four years that followed the launch of the Action Plan. As of November 2012, 99 files were under research and assessment.^{Footnote 12}

Text description of Figure 1

This figure reflects the number of new claims submitted to the SCB for each fiscal year between 2008-2009 and 2011-2012. The number of claims is indicated on the "Y" axis, and the respective fiscal years is indicated in the "X" axis. In 2008-2009 there were 22 new claims submitted to the SCB. In 2009-2010, the number of new claims submitted to the SCB peaked sharply to 52, nearly doubling the number submitted the previous year. The following two fiscal years showed a slow decrease in the number of new claims, first to 49 in 2010-2011 and a further decrease to 35 in 2011-2012.

3.1.4 Increase in the number of claims in negotiation

The total number of claims in negotiation has increased significantly under the Action Plan. As illustrated in Figure 2, there were 126 claims in negotiation as of March 31, 2008. Four years later, that number had more than doubled to 280. The most significant increase occurred during the fiscal year 2011–2012.^{Footnote 13} The increased number of claims in negotiations is directly linked to the success in clearing up the backlog in assessment.

Text description of Figure 2

This figure depicts the number of claims in negotiations during the post Action Plan period between March 2008 to March 2012. The number of claims negotiated is indicated on the "Y" axis and the "X" axis indicates the point in time used to measure in March of each year between 2009 and 2012. In 2008, there were 126 claims in the negotiation process, 142 in 2009, 161 in 2010, 162 in 2011, and 280 as of March 2012.

3.1.5 Increase in the number of specific claims resolved through negotiations

The number of claims resolved (settled) through negotiations has not yet increased under the Action Plan.^{Footnote 14} However, a number of the backlog claims are currently in the negotiation phase, as stated in Section 3.1.4, which may contribute to this outcome in the near future.

As illustrated in Figure 3, there have been a fairly consistent number of claims reaching a settlement through negotiation pre-and post-Action Plan over a 20 year period.

• The number of claims settled through negotiation between 2008–2009 and 2012–2013 stood at 75, for an average of 15 claims settled per year.
• The number of claims settled through negotiation between 1992-1993 and 2007-2008 stood at 237, for the average number of 14.8 claims settled per year.

Value of Settled Claims

Under the Action Plan, the total compensation for settled claims has increased significantly. As shown in Figure 4, the total value of claims settled in the five years leading up to the Action Plan was $393 million. Since the Action Plan came into effect, the total value of settled claims has been $1,687 million.

Text description of Figure 4

This figure illustrates in a pie-chart format the value of settled claims pre and post Action Plan in millions of dollars. As demarcated in the red portion of the pie chart, the total value of claims settled in the five years (2003-04 to 2007-08) leading up to the Action Plan was $393 million. The blue portion of the pie chart indicates that since the Action Plan came into effect (2008-09 to 2012-13) the total value of settled claims has been $1,687 million.

 

Concluded Claims

AANDC reports that the overall federal inventory is decreasing and the number of concluded claims is increasing.^{Footnote 15} The results were tracked at key points from March 31, 2007 to end of November 2012.^{Footnote 16} As illustrated in Figure 5, the inventory of claims stood at 772 at the end of the fiscal year 2006-2007. By the end of November 2012, this number was reduced to 345. Concluded files stood at 502 at the end of the fiscal year 2006-2007 and by the end of November 2012, it had increased to 1,103.

Text description of Figure 5

This figure illustrates the trends in the total number of claims in inventory and the total number of files concluded. The number of claims settled is indicated on the "Y" axis, and key points from 31 March, 2007 to 30 November, 2012 are indicated in the "X" axis. This graph indicates that the overall federal inventory is decreasing and that the number of concluded claims is increasing. The inventory of claims stood at 772 at the end of the fiscal year 2006-2007. By the end of November 2012, this number was reduced to 345. Concluded files stood at 502 at the end of the fiscal year 2006-2007 and by the end of November 2012, it had increased to 1,103.

 

Concluded files include those that were: settled through negotiation; resolved through an administrative remedy; where no lawful obligation was found; and, where the file was closed. For the purpose of this evaluation, a distinction is being made between claims that are concluded with finality (complete and final redress of the claim) and claims that may continue to evolve, either by being submitted by First Nations to the Specific Claims Tribunal, or by being submitted to the specific claims process as a new claim. Table 3 presents the breakdown of concluded files.

Table 3: Concluded files: 1973 to end of November 2012

Settled through negotiation	366	399 claims concluded with finality	36%
Resolved through an administrative remedy	33
No lawful obligation found	396	704 claims concluded without finality	64%
File closed	308
Total	1,103	1,103	100%
Source: AANDC National Summary on Specific Claims

The first two categories (settled through negotiation or resolved through an administrative remedy) represent claims that are concluded with finality. As of the end of November 2012, there were 399 claims representing 36 percent of all concluded claims. In the case of the other two categories (no lawful obligation found and file closed), during this same time period, there were over 704 claims not concluded with finality representing 64 percent of all concluded files.

As every stage of the specific claims process is voluntary, it is important to note that the specific claim process does not force a claim to be addressed with finality. A First Nation chooses to submit a claim, to negotiate it with Canada, and to decide whether or not to accept a settlement agreement. Furthermore, it is only a First Nation that can make the decision to submit a claim to the Tribunal. Likewise, Canada assesses whether the claim has validity and determines whether or not to enter into negotiations and what would be considered fair compensation.

Therefore, the specific claims process is designed to achieve finality but it does not guarantee that finality will happen in all cases. This is particularly evident by the claims that Canada determined did not disclose an outstanding lawful obligation and the claims falling under the file closure category, which includes, amongst others, claims where a First Nations decide not to accept the settlement offer.^{Footnote 17} AANDC considers these claims to be concluded but First Nations have not provided Canada with a release and an indemnity with respect to these claims. Therefore, there is a risk that a number of these claims can be submitted to the Specific Claims Tribunal or submitted as a new claim to the specific claims process at any point in the future.^{Footnote 18}

Claims that did not disclose an outstanding lawful obligation

The number of claims where Canada has concluded that they did not disclose an outstanding lawful obligation has increased under the Action Plan. On October 2008, the number of claims did not disclose an outstanding lawful obligation stood at 104. However, since the Action Plan was implemented (up to end of November 2012), Canada concluded that 292 claims did not disclose an outstanding lawful obligation.

This trend is further reflected in the Historical Acceptance Rate (HAR). The HAR is the proportion of all claims researched and assessed since 1973 where Canada concluded that a claim disclosed an outstanding lawful obligation. Figure 6 illustrates the trend in the HAR for the five-year period pre-Action Plan, as well as the five-year period post-Action Plan. It shows that the HAR has been steadily declining from around 70 percent prior to the Action Plan to around 60 percent in 2012–2013 (2012-13 was not a complete year at the time of the evaluation).

No single factor can be used to explain HAR trends, and the evidence gathered as part of this evaluation does not allow for this report to make conclusions on this matter. Nonetheless, it is important to note the trend since it has a direct impact on the number of claims that may end up before the Specific Claims Tribunal, or that may be submitted to the specific claims process at a later point in time. A decline in the HAR directly correlates to an increase in the number of claims where Canada has concluded that no outstanding lawful obligation was disclosed.

Text description of Figure 6

This figure illustrates the trend in the Historical Acceptance Rate (HAR), in percentage, which is indicated on the "Y" axis, over a ten year period, as indicated on the "X" axis. A vertical line is drawn to indicate the point in time when the Action Plan was introduced. The graph demonstrates the HAR over the five-year period pre-Action Plan, as well as the five-year period post-Action Plan. It shows that the HAR has been steadily declining from around 70 percent prior to the Action Plan to around 60 percent in 2012–2013.

 

Figure 7 illustrates an increase in the number of post-Action Plan claims under the "no lawful obligation" category, while claims settled through negotiations has remained largely consistent and the number of claims captured in the "file closure"^{Footnote 19} category has decreased.

Text description of Figure 7

This figure illustrates a breakdown of closed claims per fiscal year by the number of claims that were either settled, where no lawful obligation was found, or where the file was closed. The number of claims closed is indicated on the "Y" axis, and the fiscal years 2008-09 to 2011-12 are indicated on the "X" axis. The graph depicts an increase in the number of post-Action Plan claims under the "no lawful obligation" category, while claims settled through negotiations has remained largely consistent and the number of claims captured in the "file closure" category has decreased, with the trend showing only a very slight increase in 2010-2011 to 2011-2012.

 

3.2.1 Justice

The preconditions for justice for First Nations claimants and Canadians are in place within the specific claims process. This is the result of having a process in place to resolve claims in a timely manner and the existence of an independent Tribunal to assess legal obligations and determine remedies.

Achieving justice in the context of specific claims requires that both parties can fairly and comprehensively address any alleged breach of a lawful obligation. In this context, ensuring a fair and definitive assessment of whether a claim is disclosing an outstanding lawful obligation is a sine qua non condition to its genuine resolution. To this effect, the Action Plan has made significant contributions to the goal of justice, including the establishment of the Specific Claims Tribunal. The Tribunal provides an avenue for both parties to obtain a final decision on the validity of a claim. This is particularly commendable, since the Tribunal is allowed to do so regardless of any technical defences such as limitation periods, strict rules of evidence, or the doctrine of laches, something that could not be guaranteed in proceedings before the courts.^{Footnote 21}

In cases where the Tribunal confirms that a claim has disclosed an outstanding lawful obligation, hearings will be held on compensation, unless both parties opt for a negotiated settlement. In cases where the Tribunal concludes that a claim has not disclosed an outstanding lawful obligation, the file is permanently closed. As such, justice does not reside in the nature of a particular decision from the Tribunal (and favour or not of the claimant), but rather, in its legitimacy.

At the time of the evaluation, 65 claims had been settled through negotiation under the Action Plan.^{Footnote 22} Moreover, one decision had been rendered by the Tribunal, confirming that the associated claim disclosed an outstanding lawful obligation. For both parties and all stakeholders involved in, or related to, these claims, the Action Plan has allowed their claims to be resolved in a timely manner and with finality.

Although other claims have evolved during the same time period, they have not been resolved with the same level of finality. Canada has concluded that 292 claims submitted by First Nations under the Action Plan have not disclosed an outstanding lawful obligation.^{Footnote 23} These First Nations can accept Canada's assessment, they can resubmit the claim with new evidence, or they take the claim to the Specific Claims Tribunal or to the courts. There is also an undetermined portion of the 308 claims falling under the file closure that can also be submitted to the Tribunal or be submitted to the specific claims process as a new claim. As it is impossible to predict what each First Nation involved in these claims will do, it is appropriate to conclude that a fair amount of uncertainty remains. This is not so much a matter of implementation or procedures, but rather it is a direct consequence of the legislative framework in which the Action Plan operates. The Specific Claims Tribunal Act does not include any time frame or options that could force a claim to reach a final stage.

First Nations have expressed concerns that justice, as initially articulated in the Action Plan, is not being achieved. In submissions to Canada for the five year review of the Action Plan, First Nation organizations were highly critical of how the Action Plan has been implemented and particularity with Canada's current interpretation of the commitments made in Justice at Last. As stated in one of these submissions:

The claimant community is profoundly disappointed and frustrated by Canada's conduct. It does not believe that Canada is honouring its promises in Justice at Last. It has, in a manner that has never been announced or acknowledged, turned the federal processing stage into an arena where Canada appears to be no longer acting in good faith as a fiduciary, but instead is taking every opportunity to merely minimize its liabilities. This approach is inconsistent with the principle of reconciliation that was explicitly embedded into the Specific Claims Tribunal Act.^{Footnote 24}

3.2.2 Certainty

The preconditions to achieve certainty are in place within the Specific Claims process. There is little doubt that the concept of certainty is directly linked to that of justice. For this reason, evaluation findings indicate that the Action Plan has contributed to a greater level of certainty by providing an avenue to resolve a claim with finality, in a timely manner. However, five years into the post-Action Plan period, it has become evident that a significant number of specific claims have been concluded without finality, and may remain in that state for an undetermined period of time.

At its most fundamental level, any specific claims is about uncertainty. By submitting a claim, a First Nation indicates that, in its opinion, an outstanding legal claim exists, such as a breach of a historical treaty or a failure by Canada to uphold an aspect of its fiduciary responsibilities. As a result, the parties must satisfactorily address the claim and, in the meantime, uncertainty remains. Depending on the nature of a claim, a number of stakeholders will be required to manage that uncertainty and await its resolution.

Consequently, when a claim is resolved with finality, certainty is achieved:

• When a settlement is reached through negotiation, certainty is achieved through the release that accompanies the settlement.
• When a First Nation claimant turns to the Tribunal, certainty is achieved through a final and conclusive decision regarding validity and compensation that includes a release of all parties from the claims.^{Footnote 25}

As discussed above, where these two conditions are not met, it is expected that, over time, a greater level of certainty will also be achieved through the body of law that emerges from the work of the Tribunal. Through its assessment of individual claims, the Tribunal will enunciate principles that will guide its decisions, both on validity and (when applicable) on compensation. As with jurisprudence, these principles will become part of the knowledge applied by all stakeholders involved in a claim and, as such, will provide important guidance. The need to further elaborate on this body of law will remain, and the Tribunal will be required to consider different facts and circumstances. While acknowledging this reality, the emerging body of law from the Tribunal is expected to contribute to a greater level of certainty.

3.2.3 Sustainable use of land and resources

Specific claim settlements with a land component give First Nations opportunities to acquire land either by using some or all of their settlement funds to purchase land on the open market or through the transfer of provincial or territorial Crown land. Land-related settlement enables First Nations to apply to have the purchased lands, or provincial or territorial Crown land, given reserve status, either by adding to an existing reserve base or by creating a new one. Regardless of having a land component within the settlement agreement, a First Nation may also purchase land with their compensation and submit an addition to reserve proposal to convert that land to reserve status.

The evaluation found clear examples where the settlement of specific claims has triggered addition to reserve processes. A First Nation may choose to convert private lands purchased with their compensation or federal and provincial Crown lands awarded under the settlement agreement to reserve status. Since the Action Plan came into force, 14 settlement agreements included a land component totalling approximately 200,000 hectares of potential additions to reserves.^{Footnote 26}

While the specific claims process and the additions to reserve process remain distinct from an operational point of view, there is a clear relationship between the two processes. Under the AANDC Policy on Reserve Creation, the conversion of purchased land to reserve status that has resulted from Specific Claims settlements can occur under two categories. First, settlement agreements that contemplate reserve creation are eligible under the legal obligation category. First Nations can use this category to convert purchased land to reserve status only if their settlement agreement identifies an addition to reserve. Otherwise, they can choose to submit a reserve creation proposal under the community additions category. There is no requirement for the settlement agreement to contain a reference to an addition to reserve for First Nations to use this category. However, additional justifications^{Footnote 27} are required because additions to reserves under this category are not legal obligations. In addition to these agreements, as noted above, First Nations may choose to use their compensation to purchase private lands and own them in fee simple or convert them to reserve status under a community addition.

The acquisition of land remains a priority for many First Nations. First Nations have noted that from an economic point of view, access to land and natural resources represent one of the most critical issues facing them today .^{Footnote 28} This was recognized in the political agreement between the Minister of Aboriginal Affairs and Northern Development and the National Chief of the Assembly of First Nations signed in parallel to the launching of the Action Plan. The Political was signed in anticipation of a growing number of additions to reserves requests through the impending establishment of the Specific Claims Tribunal.^{Footnote 29}

While the Tribunal will, under the proposed Bill, only have jurisdiction to award monetary damages, the parties recognize the particular cultural, spiritual, social and economic significance to First Nations of the lands that have been lost. In situations where a First Nation seeks to re-acquire or replace lands that were the subject of a Specific Claim, the Minister will review with First Nations, policies and practices respecting additions to reserves with a view to ensuring that these policies and practices take into account the situation of bands to which the release provisions of the proposed Specific Claims Tribunal legislation apply. In particular, the Minister will provide priority to additions to reserve of lands affected by the consequences of the release provisions in the legislation or to lands required to replace them.^{Footnote 30}

Efforts to reform the Additions to Reserves policy and process are underway and include creating a new Additions to Reserves category entitled "Tribunal Decisions" for land proposal resulting from positive decisions of the Tribunal. As for settlements under the Action Plan, it is still to be determined how these efforts to improve the Additions to Reserves policy and process will affect specific claim settlements and in particular the long-term result of sustainable use of lands and resources. Moreover, it is anticipated that more pressure may be placed on the Additions to Reserves process as the backlog claims currently in the negotiation phase are concluded.

4.1 Appropriateness and efficiency of process

Practices and procedures are in place to cover all aspects of the claim process and funding is currently in place to ensure its sustainability. To facilitate the implementation of the Action Plan, AANDC has adopted a number of practices and procedures that cover both the specific claims process and hearings before the Tribunal. Every step of the specific claims process is now supported through practices and procedures that cover the early review (to determine whether the minimal standard has been met), the research and assessment stage, legal opinions, negotiation, and settlement. These findings are supported by the recent internal audit, which concluded that AANDC has implemented key governance and operational processes to support the efficient and effective delivery of required services and support to the Specific Claims Process.^{Footnote 31}

These efficiencies have contributed to an increase in the number of negotiations taking place, to the settlement of 65 claims during the post-Action Plan period, and to the fact First Nations have received more than $1 billion in compensation. These achievements are evidence of success. The Action Plan has addressed two of the most fundamental concerns voiced by First Nations over the years concerning the specific claims process. First, it established the Tribunal, an independent adjudicative body that can assess the validity of a claim as well as determine the compensation to be provided when applicable. Second, it addressed concerns regarding the timeliness of the process by accelerating the assessment and negotiation of claims.

However, it is still too early to determine if the efficiency of the process is appropriate to allow for the Action Plan's objective (resolving claims with finality) and long-term results (justice, certainty, and sustainable use of lands and resources) to be achieved.

4.2 Policy or process obstacles

There are a number of factors within the specific claims process that are beyond the control of AANDC and the Department of Justice that can impact the ability to meet the three-year timeframe for negotiations. To address these issues, AANDC has created very clear and efficient processes to facilitate the participation of other parties. These processes have largely been successful at meeting timelines as demonstrated by the progress in addressing the backlog, the increase in negotiation tables and the number of claims resolved. Nonetheless, these factors do create pressure on the process and have the potential to delay negotiations. These include:

• For settlements higher than $7 million, financial mandates must be approved through a Treasury Board Submission. While coordinating efforts are undertaken within AANDC and between AANDC and central agencies, there may be delays in getting such a submission approved.
• The same issue applies to settlements beyond $150 million, which require Cabinet approved financial mandates and final Cabinet approval (in addition to AANDC's internal approvals).
• Depending on the nature of the claim, provincial governments may be involved in the negotiation and settlement of a claim. These provincial authorities do not necessarily operate at a pace equivalent to that of the specific claims process and they are not subject to the framework established by the Specific Claims Tribunal Act. Furthermore, delays can be caused by approval processes within provincial governments.
• The three-year time frame for negotiations start on the date the Minister notifies the First Nation in writing that the claim has been accepted for negotiation. Negotiations will not start however until the Minister has received evidence, such as a Band Council Resolution, stating that the First Nation is prepared to enter into negotiations on the basis set out in the notification of acceptance.

4.3 Operational and policy challenges linked to the Tribunal

AANDC and the Department of Justice are implementing procedures to address demands related to the Tribunal work. The Tribunal officially became operational in June 2011. At the time of the evaluation, it had been operating for a little more than one year. As indicated by stakeholders consulted as part of this evaluation, the learning and adaptation process continues and is expected to evolve for the foreseeable future. In this context, evaluation findings indicate that both AANDC and Department of Justice have adopted strategies to address the demands associated with the work of the Tribunal. The management of files in both departments has been assigned and the resources are in place to proceed with these hearings.

As the Tribunal renders new decisions on the validity of claims and the compensation to be provided (when applicable), the two departments will need to further explore the possible impact that these decisions may have on their current approach to determining whether a claim discloses an outstanding lawful obligation or the appropriate principles to be applied for determining compensation within the specific claims negotiation process. With only one decision rendered on validity at the time of the evaluation, it is too early to assess the practical impact of the Tribunal's decisions.

4.4 Sustainability of process

According to interviewees, at the time of the evaluation, the Specific Claims Branch had sufficient resources to complete the research and assessment phase of new claims. No backlog is expected at this point in time, however with the sharp increase in the number of claims in negotiation, pressures are mounting on the current negotiating teams. Nevertheless, evaluation findings do not indicate that negotiation requirements have surpassed the capacity of these teams.

What remains unclear at the time of the evaluation is the full impact that proceedings before the Tribunal will have on both AANDC and the Department of Justice.

4.5 Adequacy of funding

The $2.5 billion provided for compensation as part of the Action Plan has provided significant resources to support the implementation of settlement agreements to date. During the five years following the adoption of the Action Plan, $1.3 billion was paid in compensation.^{Notes en bas de page 32} Figure 8 provides a twenty year overview of the compensation paid out for settlement claims.

Despite the significant investment to date, the current level of funding for settlement will be insufficient to address the expected volume of compensation. In its 2012 Summary Report and Consolidated Financial Statements, the Receiver General for Canada indicated that "there are currently 439 (487 in 2011) specific claims under negotiation, accepted for negotiation or under review. A liability of $4.483 billion ($4.781 billion in 2011) is estimated for claims that have progressed to a point where quantification is possible."^{Footnote 33} With a contingent liability that stands at approximately $4.5 billion, the evaluation concludes that the initial $2.5 billion will likely not be sufficient to address all potential liability associated with specific claims.

4.6 Risks identified

• Significant numbers of specific claims have been concluded without finality: There are hundreds of claims that could be proceeding to the Tribunal, or resubmitted as a new claim to the specific claims process.^{Footnote 34}
• Potential impact of the Tribunal decisions on validity: If, for example, the Tribunal expands the application of the Crown's fiduciary obligations to circumstances where the Department of Justice has opined no fiduciary duty exists, this could impact the legal assessment of unresolved claims should they be resubmitted to the Specific Claims Branch.
• Despite the significant investment to date, the current level of funding for settlement will be insufficient to address the expected volume of compensation.
• Some Aboriginal organizations are not acknowledging improvements made to the new specific claims process, which may affect confidence in the integrity and effectiveness of the new process to resolve specific claims. As stated in one submission to Canada for the five-year review of the Specific Claims Action Plan:

Canada's approach over the past five years signals a significant departure from Justice at Last promises of the fair and timely resolution of specific claims through negotiation to Canada systematically walking away from its lawful and fiduciary obligations.

We have no confidence in the Specific Claims Action Plan Justice at Last as it is being implemented by Canada. When we submit claims, we expect rejection. Even under the incredibly flawed old process, we had more hope of claims resolution than we do now.^{Footnote 35}

5.1 Conclusions

AANDC has put in place practices and procedures to cover all aspects of the claim process. The Department has created clear and efficient processes to facilitate the participation of other parties, whose actions are beyond the control of AANDC and the Department of Justice, but that can impact the ability to meet the three-year timeframe for negotiations.

There have been many achievements under the Action Plan, including the establishment of the Specific Claims Tribunal and the Registry; the backlog of claims in assessment at the time the Specific Claims Tribunal Act came into effect has been cleared; and the total number of claims in negotiation has increased significantly under the Action Plan.

Moreover, the preconditions for justice and certainty are in place within the specific claims process and the claims that have been settled through negotiations are largely achieving these outcomes. Over time, negotiated settlements, decisions from the Tribunal and the body of law that will emerge from the Tribunal are expected to contribute to a greater level of justice and certainty. Specific Claim settlements are also contributing to the sustainable use of lands and resources, most notably through the Additions to Reserves process.

A number of areas for improvement and risks were identified.

• Significant numbers of specific claims have been concluded without finality and could proceed to the Tribunal, or be submitted as a new claim to the specific claims process.
• Potential risk that the Tribunal decisions on validity could impact the legal assessment of unresolved claims should they be resubmitted to the Specific Claims Branch.
• Though mediation services are available, access has been minimal under the current operational model and therefore, the fourth pillar of the Action Plan, better access to mediation, is not being achieved.
• Aboriginal organizations are not acknowledging improvements made to the specific claims process, which may affect confidence in the integrity and effectiveness of the new process to resolve specific claims.
• More pressure may be placed on the Additions to Reserves process as the backlog claims currently in the negotiation phase are concluded.
• Current level of funding for settlement may be insufficient to address the expected volume of compensation that will be needed.

5.2 Recommendations

1. As part of the risk assessment framework that is to be undertaken by the Treaties and Aboriginal Government Sector, Senior Assistant Deputy Minister (recommendation 2 of the Internal Audit Report of November 2012), include a risk strategy to manage the large number of claims that are considered "concluded" by AANDC but which have the potential to be submitted to the Tribunal or submitted as a new claim to the specific claims process. This risk strategy should be updated as decisions of the Tribunal are rendered.
2. Through discussions with First Nation leaders, develop and implement a strategy to allow for greater use of mediation services.
3. Put in place mechanisms that support the relationship between the Action Plan and the Additions to Reserves process.
4. Address current funding for settlement of specific claims as it may be insufficient to address the expected volume of compensation that will be required.