Evaluation of the Specific Claims Assessment and Settlement Process FY2013-14 to FY2019-20

Overview

The Evaluation Branch of the Audit and Evaluation Sector of Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) conducted an evaluation of the Specific Claims Assessment and Settlement Process (SCP). The evaluation was undertaken as outlined in CIRNAC’s Five-Year Evaluation Plan 2019-2020 to 2023-2024 and in compliance with the Treasury Board Policy on Results and Section 42.1 of the Financial Administration Act.

The evaluation focuses on relevance, design and delivery and effectiveness. The evaluation covered the period of April 1, 2013 to March 31, 2020.

The program is delivered by the Specific Claims Branch (SCB), Resolution and Partnership Sector, of Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC).

Specific claims are grievances that First Nations have against the Government of Canada for failing to discharge its lawful obligations with respect to historic pre-1975 treaties and the management of First Nation lands, monies and other assets. The resolution of specific claims advances reconciliation and supports nation building and self-governance, where settlement funds can be used by First Nations to advance their priorities and community development. Specific claims are separate and distinct from comprehensive land claims or modern treaties.

In 2016, the Office of the Auditor General conducted a performance audit, which reported on whether the department adequately managed the resolution of First Nations specific claims. The audit noted the lengthy assessment and negotiation processes are impediments to achieving restitution for past wrongs.

An Evaluation Working Group provided guidance on the evaluation process and to ensure diverse perspectives were reflected in the evaluation. This included representatives from the evaluation team, SCB program representatives, the Assembly of First Nations (AFN), and the Union of British Columbia Indian Chiefs and others.

The evaluation methods included a review of program documents, a review of performance and financial data from the specific claims database, 51 key Informant interviews (with federal government representatives, Indigenous governments, Indigenous Representative Organizations and Claims Research Units, and other Indigenous representatives); and eight case studies of specific claims in various stages of the process, which included a review of core claim documents and 20 key informant interviews as part of case studies.

The case studies considered the experiences of First Nations at various key stages in the process, examined the role of the SCB and identified key challenges at various stages of the process.

Recommendations to support improvements in CIRNAC’s approach to working with Indigenous partners and managing and implementing Treaties and Agreements follow.

Relevance

The evaluation found that the need to resolve specific claims is a priority for First Nations and necessary for Canada to honour its obligations to right these past wrongs. As the Government of Canada is accountable for fulfilling statutory and fiduciary obligations to First Nations as well as upholding the honour of the Crown^{Footnote 1}, it is expected that the need to resolve specific claims will continue on a long-term basis.

This continued need will drive the requirement for an impartial, fair, transparent and efficient policy and process for resolving specific claims through negotiated settlements and other alternatives to the courts.

In the absence of the specific claims policy and process, claims litigation would be the primary pathway to resolution, which is not the preferred approach as it is more costly and time consuming, eroding relationships with First Nations, and ultimately reconciliation between Canada and First Nations.

There are continued expectations that the specific claims policy and process will be consistent with, aligned to, and supportive of the priorities and plans of First Nations, Canada's obligations to right past wrongs, and the federal government's priorities for renewed, nation-to-nation, government-to-government relationships with First Nations, reconciliation, commitments to implement the TRC Calls to Action, and to be in compliance with United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Despite incremental federal reforms, FNs, their representatives, oversight bodies and other observers have made the same criticisms that the SCP is not meeting needs and expectations and that transformational change is required to address these longstanding issues.

Design and Delivery

In terms of impartiality and fairness, and accountability and transparency, respondents pointed to UNDRIP Article 27 calling for a "fair, independent, impartial, open and transparent process" to be implemented in conjunction with the concerned Indigenous people^{Footnote 2}. Introduction of the Tribunal and incremental federal reforms has improved impartiality and fairness of the existing process, however it remains out of compliance with Article 27.

The resourcing of the SCP appears to have hindered the ability of First Nations to develop and submit claims, and participate in negotiations, and the SCB’s ability to meet expectations, such as legislated timeline targets. For First Nations, adequacy of resourcing (including research funding outside the purview of the SCB) is the primary driver for prospective claims entering the claims resolution process.

An increase in the volume of claims combined with targets for initial review, and assessment and negotiation, have been beyond the current resources and staffing allocations, resulting in lengthy periods to resolve claims and failure to meet legislated timelines. For the SCB, according to interviews with program representatives, staff have been faced with excessive workloads, resulting in high rates of absenteeism and attrition.

Greater collaboration, communication and information sharing has led to improvements in accountability and transparency, though a continued focus on improving these areas is still needed.

Effectiveness

There are challenges with the program framework, including misalignment of indicators with outcomes and the reliance on contextual indicators. Both internal and external respondents recognized many of these and other issues (i.e., unrealistic targets) are deficiencies with the program performance framework. SCB officials indicated that some of these were already being addressed through an internal review process.

With respect to monitoring, the program uses a simple output volume calculation to monitor performance. This output volume approach looks at all claims in the SCB portfolio in a particular year, and describes how many are at various stages in their life cycle, regardless of when they were submitted to the Minister. Given that the federal government plans and budgets on a fiscal year basis, that claims are managed through different lifecycle stages (with important, including legislated, performance standards), and many of the program indicators are qualified "by year and trend," the evaluation team expected that the program would use cohort analysis to help provide insight into the performance of the claims process. Instead, the program relies on simple volume calculations, which does not fully account for the lifecycle of claim.

From a narrow operational sense (activities and immediate outcomes), program performance has been good, largely attributable to the expertise and deep dedication of staff. Performance on meeting the legislated three-year timeframe for determining whether claims will be accepted for negotiation fell slightly short of expectations. However, the last three years demonstrated a trending significant improvement and the target was met.

From a broader perspective (intermediate and ultimate outcomes), the program has not performed well. With respect to advancing reconciliation with First Nations, respondents generally agreed that the SCP has the potential to advance reconciliation however, its current design particularly as it relates to impartiality, fairness and transparency are major impediments.

Efficiency and Economy

The program has continually explored different ways to increase efficiencies (e.g., joint research, bundling claims, global settlements and scaling of these best practices) and strived to ensure a positive experience for First Nations during the claims process, and there have been pockets of success.

First Nation respondents agreed that negotiated resolutions are the most cost-effective as well as their preferred means to resolve specific claims within the Specific Claims Policy, and suggested that greater efficiencies could be realized through more collaboration (e.g., joint research) and consistency in the approach to different classes of claims.

Capacity and resource constraints have impacted the SCB's ability to meet expectations and First Nation calls for accelerated resolution, and hindered the ability of First Nations to participate in the specific claims process on an equal footing with Canada.

Recommendations

The findings and conclusions from this evaluation have led to the following recommendations:

It is recommended that CIRNAC:

1. Co-develop with First Nations partners a modern and transformative specific claims policy and process, that:
   • Better aligns to Government of Canada and Departmental mandates and priorities and reflects UNDRIP and the TRC Calls to Action, including principles of and upholding the honour of the Crown.
   • Establishes options for implementation, and a realistic and sufficiently resourced implementation plan, that can lead to more fairness, impartiality, transparency, independence and collaboration in the claims process.
   • Ensures that Indigenous customs, rules, and legal systems are systemically incorporated into the specific claims policy and process.
2. In cooperation with First Nations partners, continue its current improvement initiatives related to delivery, effectiveness and efficiency of the program, including:
   • Communications - improving the clarity and opportunities for transfer of communication from SCB to First Nations; and, within the department between the directorates with the SCB and other areas that interface with the SCB (Pre-research Negotiations support branch in Treaties and Aboriginal Government and regions (ISC)).
   • Performance Measurement – improving the data collection approach with more accurate and meaningful indicators and articulation of longer term outcomes, in consultation with First Nations.

Project Title: Evaluation of the Specific Claims Assessment and Settlement Process

1.1 Evaluation Purpose

In the Government of Canada, evaluation is the systematic and neutral collection and analysis of evidence to judge merit, worth or value. Evaluation informs decision making, improvements, innovation and accountability. Evaluations typically focus on programs, policies and generally employ social science research methods.

An evaluation of the Specific Claims Assessment and Settlement Process was required in accordance with Section 42.1 of the Financial Administration Act which stipulates that departments conduct a review every five years of the relevance and effectiveness of each ongoing program for which they are responsible. The Treasury Board of Canada’s Policy on Results (2016) defines such a review as an evaluation, and requires each department to develop and publish an annual five-year departmental evaluation plan. The evaluation of the Specific Claims Assessment and Settlement Process (also referred to herein as "the program" or the SCP) was conducted as outlined in CIRNAC’s Five-Year Evaluation Plan 2019–2020 to 2023–2024.

An evaluation of the Specific Claims Process (SCP) was previously completed in 2013–2014 following an audit of department support to the SCP undertaken by the department’s Audit and Assurance Services Branch in 2012. In 2016, the Office of the Auditor General (OAG) conducted a performance audit, which reported on whether the department adequately managed the resolution of First Nations specific claims. The Office of the Auditor General Report, results of the evaluation (2014) and concerns of First Nations consistently noted that lengthy assessment and negotiation processes are impediments to achieving restitution for past wrongs^{Footnote 3}.

The Specific Claims Assessment and Settlement Process was evaluated in FY2020-21 to assess the relevance, design and delivery, performance and efficiency of the program for the period of April 1, 2013 to March 31, 2020. This program is delivered by the Specific Claims Branch (SCB), Resolution and Partnership Sector, of Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC). The evaluation was initiated and conducted by the Evaluation Branch of CIRNAC.

1.2 Program Context

Specific claims are grievances that First Nations have against the Government of Canada for failing to discharge its lawful obligations with respect to historic pre-1975 treaties and the management of First Nation lands, monies and other assets. For example, a specific claim could involve the failure to provide enough reserve land as promised in a treaty or the improper handling of First Nation money by the federal government in the past^{Footnote 4}.

Specific claims are separate and distinct from comprehensive land claims or modern treaties.

The Government of Canada works with First Nations to resolve outstanding specific claims through negotiated settlements. The specific claims process is voluntary for First Nations and provides a way to resolve disputes outside of the court system. The negotiated settlements honour treaty and other legal obligations^{Footnote 5}.

The resolution of specific claims advances reconciliation and supports nation building and self-governance, where settlement funds can be used by First Nations to advance their priorities and community development.

During the late 1800s and early 1900s, some First Nations sought redress from Canada; however, from 1927 to 1951, the Indian Act prohibited the use of band trust funds to sue the federal government. Claims that Canada had not fulfilled its lawful obligations to First Nations were largely ignored until 1946, when the United States established an Indian Specific Claims Commission, intensifying calls for a similar body in Canada. Over the next 15 years, parliamentary commissions examined First Nations grievances against Canada, and recommended the creation of an independent administrative tribunal to adjudicate First Nation claims, but successive government bills seeking to establish such a body were unsuccessful. In 1973, the Supreme Court of Canada issued its decision in Calder v. British Columbia (Attorney General) recognizing Aboriginal title to land as a legal right in Canada, putting pressure on the federal government to establish a process for resolving First Nation grievance related to the fulfillment of historic treaties and Canada’s management of First Nation lands, monies and other assets. Since 1973, the Specific Claims Policy has provided a voluntary alternative dispute resolution process allowing Canada to discharge its outstanding legal obligations through negotiated settlements rather than through the courts.

The Specific Claims Policy underwent its last major reform in 2007 (Justice at Last), with the addition of the Specific Claims Tribunal and legislative framework adding discipline and binding judicial decisions to the process, and remains the current model in place today. The Justice at Last: Specific Claims Action Plan, introduced in 2007, was intended by Canada to improve the existing specific claims process and to address the backlog of claims in the system. Justice at Last proposed reforms to the specific claims process that would follow four pillars of implementation: "ensure impartiality and fairness, greater transparency, faster processing and better access to mediation"^{Footnote 6}.

Released in November 2016, the OAG report 6—First Nations Specific Claims—Indigenous and Northern Affairs Canada, concluded that the Department did not adequately manage the resolution of First Nations specific claims and that funding cuts and lack of information sharing between the Department and First Nations posed barriers to First Nations’ access to the process for resolving specific claims. The OAG made ten recommendations for improving fairness and transparency and the Department agreed with all of them. In 2016, the legislated five-year review of the Specific Claims Tribunal Act, Re-Engaging: Five-Year Review of the Specific Claims Tribunal Act, also made a number of recommendations, including a renewed and more positive process involving conciliation and engagement between the Government of Canada and First Nation.

Sparked by the legislated five-year review of the Specific Claims Tribunal Act and the 2016 report of the OAG, Canada committed to work jointly with the Assembly of First Nations (AFN) and First Nations to substantively reform the SCP and policy. In 2017, in response to recommendations made by the OAG’s 2016 report, Canada and the AFN launched the Joint Technical Working Group (JTWG), "with a mandate to review the specific claims policy and process and to make recommendations for change"^{Footnote 7}.

Following the AFN’s adoption of Resolution 67-2017, "Rejection of the Recognition and Implementation of Indigenous Rights Framework and Associated Processes", the AFN convened the "Four Policies and Nation Building Policy Forum" to facilitate discussion and establish First Nations principles to form the basis of any approach with the federal government. Specific Claims was one of the four policies chosen for focus and reform.

In 2017, following two national discussions with First Nations, Chiefs-in-Assembly passed AFN Resolution 91-2017, "Support for a Fully Independent Specific Claims Process", calling on Canada to work in equal partnership with the AFN and First Nations to develop a 'fully’ independent process with "the goal of achieving the just resolution of Canada’s outstanding lawful obligations through good faith negotiations"^{Footnote 8}. Most recently, AFN Resolution 07-2020 "Jointly develop a fully independent specific claims process" demonstrates the continued First Nations’ support for a fully independent specific claims process. Additionally, this resolution lists the principles identified by First Nations during the 2019 AFN dialogue process that, according to the AFN, must underpin a new, fully independent process, which include: the honor of the Crown; independence of all aspects of claims resolution; recognition of Indigenous laws; and no arbitrary limits on financial compensation.

In Budget 2019, the Government of Canada re-emphasized its commitment and cited the settling of specific claims as a key step in the advancement of reconciliation and redressing past wrongs^{Footnote 9}. Moreover, CIRNAC’s 2019-2020 Departmental Plan emphasized that the government would "continue to work with First Nations, in collaboration with the JTWG, on process, policy and legislative reforms to the specific claims process. This work will include exploring options on enhancing the independence of the process^{Footnote 10}."

Canada’s Bill C-15^{Footnote 11} affirms the United Nations Declaration on the Rights of Indigenous Peoples provides a framework to advance the Government of Canada’s implementation of the Declaration. In a January 2020 paper, the Union of British Columbian Indian Chiefs called for an independent specific claims process that includes the recognition and integration of Indigenous laws, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)^{Footnote 12}.

Canada is working with the Assembly of First Nations, other First Nation organizations and First Nations in a spirit of co-operation and renewal to find fair and practical ways to improve the specific claims process. These discussions began in June 2016. This ongoing work is looking at recent court and tribunal decisions and previous reviews of the process.

The Assembly of First Nations led a policy reform engagement exercise with First Nations in Fall 2019, and shared the report of policy reform options with CIRNAC in fall 2020.

Reform measures are expected concerning the existing Specific Claims Policy, process and the Specific Claims Tribunal Act.

1.3 Program Profile

Canada is responsible for the administration and operation of the specific claims policies and process. CIRNAC supports the Government of Canada’s accountability for legally-binding treaties and agreements made with First Nations, and the government’s duty to honour these past commitments, through policy, processes, and guidelines for assessing and settling specific claims through negotiation^{Footnote 13}.

Key activities of the SCB, with support from the Department of Justice (DOJ), include the assessment of the historical and legal facts of a claim, the negotiation of settlement agreements, supporting the presentation of Canada’s interests before the Specific Claims Tribunal (also referred to as the "Tribunal"), and payment of monetary compensation to First Nations pursuant to the terms of a settlement agreement or an award from the Tribunal.

Before a claim is filed, historical claims research is done by individual First Nations, some tribal councils or by Claims Research Units (CRUs). The first step in filing a claim is generally when a First Nation applies for funding^{Footnote 14} to do preliminary research, which is then followed by the claim development by the FNs legal counsel, and historical researcher. The historical research could be executed by a Claims Research Unit (UBCIC, for example), or by an independent contractor. First Nations undertake claims research and development independently^{Footnote 15}.

Consistent with the Specific Claims Tribunal Act (SCTA), which defines "specific claims", describes the mandate of the Specific Claims Tribunal, establishes timelines within which certain phases of the process need to be completed, and defines certain elements of the policy and process, the program relies on the following process for resolving specific claims (see Appendix B for a pictorial description of the process as described in the OAG report, 2016)^{Footnote 16}:

• Submission - The First Nation submits the claim to the Minister of Crown-Indigenous Relations.
• Initial review of claim - The government reviews the claim and after a period of up to six months^{Footnote 17} determines if the claim meets the minimum standard for claim submissions. If the claim meets the minimum standard, it is filed with the Minister and moves to the assessment phase. If the claim does not meet the minimum standard, the claim is returned to the First Nation who has the option to resubmit the claim with revisions, and restart the process.
• Assessment phase - SCB and DOJ assess the claim submission, within three years, to confirm the validity of the research and if the claim discloses a lawful obligation to the federal government, culminating in a decision whether to enter into negotiations. The First Nation is informed of the basis for the negotiation and is asked to indicate whether it is willing to engage in negotiations. Various steps occur within the 3 years: (1) Claims Research - The Research and Assessment Directorate performs additional research as needed to supplement evidence submitted by the First Nation; (2) DOJ Review and Assessment of Claim - DOJ Reviews and Assess Claim: DOJ assesses whether the claim discloses outstanding lawful obligation on the part of Canada based on a review of the First Nation submission and SCB documents; and (3) the Claims Advisory Committee stage: Research and Assessment Directorate reviews the legal opinion and prepares the Claims Advisory Committee recommendation document (which is a summary of the legal opinion) and letter to First Nations stating Canada’s position on the claim. The Claims Advisory Committee reviews the documents, a Claims Advisory Committee meeting is set up, the claim moves up for approval, and Canada’s position letter is sent to the First Nation. If the claim is not accepted for negotiation, the First Nation may choose to resubmit the claim with new evidence or to file the claim with the Specific Claims Tribunal. If the First Nation chooses to resubmit the claim with new evidence, the assessment of the claim resumes and further decisions are taken as to whether the claim can be negotiated
• If the assessment of a claim is not completed within the legislated three-year timeframe, or if it is not accepted for negotiation by the Minister, the First Nation can file the claim with the Specific Claims Tribunal; for adjudication. The Tribunal, made up of judges, can make binding decisions on validity and compensation. Under the SCTA, specific claims are not subject to limitations periods that could otherwise be used to defend against them given they often arose more than a century ago.
• Negotiation and Settlement - Successful negotiation of a claim results in an agreement between the First Nation and the federal government. The final agreement is ratified and signed, final releases and compensation are provided, and the claim is settled. If after three years, a negotiated settlement has not been reached or if the First Nation is not satisfied with the progress of negotiations, they have the right, under the SCTA, to refer the claim to the Specific Claims Tribunal. However, negotiations may continue beyond three years if the First Nation chooses. If a settlement is reached, it moves forward to implementation^{Footnote 18}.

The cohort methodology used in this evaluation for analytical purposes in order to demonstrate how claims have moved through their life cycle stages does not give a full picture of the SCP’s output. To give the reader a better sense of volume, the following table includes what the program considers to be key outputs for the evaluation period.

Specific claims may be filed with the Specific Claims Tribunal if they have been previously filed with the Minister and any of the following four conditions have been met: (1) the Minister has not accepted the claim for negotiation (in whole or in part); (2) three years have elapsed since the claim was filed and the First Nation has not been notified of Canada’s position on the claim; (3) during the first three years of negotiations, if the Minister gives written consent to the filing of the claim with the Tribunal; and (4) three years have elapsed since the claim was accepted by Canada for negotiation (in whole or in part) and Canada and the First Nation have not reached a negotiated settlement agreement. The criteria for filing a claim with the Tribunal are set out in the Specific Claims Tribunal Act.

The federal government’s approval process for financial mandates varies depending on the size of the mandate and whether it relates to land. For example, the Minister of Crown-Indigenous Relations and Northern Affairs can approve financial mandates and finalize settlement agreements valued at up to $50 million; and Negotiated specific claim settlements valued at between $50 million and $150 million must be approved by the Treasury Board of Canada before they can be signed by the Minister of Crown-Indigenous Relations and Northern Affairs. Specific claim financial mandates of more than $150 million must go through the Cabinet approval process. Once a settlement is reached based on such a mandate, Treasury Board approval is required as part of the federal government process to ratify the settlement and obtain authority to issue settlement funds to the First Nation.

All specific claim settlements involving the regularization of interests in land, regardless of size, (usually this arises in claims where a historic surrender needs to be reconfirmed under the Indian Act in order to resolve the claim with certainty for third parties) must be approved by the Governor-in-Council before they can be finalized. This includes seeking an Order-in-Council. After all the approvals have been obtained, the minister signs the settlement on behalf of the Government of Canada. Following this, there is a 45 day requirement for Canada to pay the compensation monies to the First Nation.

Program delivery and governance of the SCP is the primary responsibility of the Specific Claims Branch, through the Negotiations and Operations Directorate, the Research and Assessment Directorate and the Policy and Litigation Management Directorate. There is also a BC Specific Claims Resolution Directorate.

The Negotiations Support Directorate, outside of the SCB and situated in the Treaties and Aboriginal Government Sector is responsible for the administration of contribution and loan funding requests to support First Nations’ participation in the specific claims process (research and development of claims, Tribunal litigation and negotiations).

The Claims Advisory Committee (with CIRNAC, ISC and DOJ membership and other departments participation as required) reviews recommendation packages prepared by SCB (with DOJ support), and makes a recommendation to the Minister of CIRNAC on whether to negotiate a claim or not. This depends on whether the SCB and DOJ assessment results in a view that there is a breach of a lawful obligation. The Claims Advisory Committee also makes recommendations to the Minister on proposed financial mandates to seek to settle a claim.

ISC regions are responsible for implementation of settlement provisions if there is a land component (i.e., additions to reserves).

The Joint Technical Working Group (JTWG), which plays an advisory role only, rather than having any governance or decision-making role, was established to examine the specific claims process and to develop recommendations for improvements.

Key beneficiaries^{Footnote 19} from the resolution of specific claims include:

• First Nations – greater certainty over lands; cash/land settlement that can support community development; resolution of historical grievances; and, contributions to reconciliation;
• The Government of Canada – resolution of outstanding lawful obligations and historical grievances of First Nations, certainty over lands, settlements to First Nations to support community development, contributions to reconciliation;
• Provincial and territorial governments – greater certainty over lands; contributions to reconciliation;
• Local governments adjoining First Nation communities – improved relationships and enhanced ability to make plans respecting land management, natural resources and provisions of services; and
• Private Sector – improved confidence in their business and investment decisions respecting First Nation interests in lands and opportunities to partner with First Nations.

1.4 Program Narrative

The Specific Claims Branch, within Resolution and Partnerships Sector at CIRNAC, is responsible for the assessment and settlement of Specific Claims.

The Specific Claims Branch is organized in four Directorates:

• Research and Assessment Directorate;
• Negotiations and Operations Directorate;
• British Columbia Specific Claims Resolution Directorate; and^{Footnote 20}
• Policy and Litigation Management Directorate.

The following activities are undertaken to support resolution of specific claims^{Footnote 21} :

• an assessment of the historical and legal facts of the claim;
• the negotiation of a settlement agreement, if it has been determined that there is an outstanding lawful obligation;
• management of litigation that relates to specific claims, which includes participating in proceedings before the Specific Claims Tribunal, as well as managing civil litigation files from across Canada;
• payment of monetary compensation to First Nations, pursuant to the terms of a settlement agreement or award of the Specific Claim Tribunal;
• consideration of trends and relevant legal and policy developments and their impacts on specific claims, and identification of opportunities for claims resolution through bundling of claims or mandates;
• administration of the database on specific claims; and
• engaging with First Nations to gather feedback on how to improve the specific claims policy and process;
  • policy and process administration;
  • policy application, development and reform.

As indicated by the 2018 Performance Information Profile^{Footnote 22}, the SCP logic model (Appendix A), as carried out by the Specific Claims Branch, identifies that the program’s activities and outputs are expected to contribute to three immediate outcomes:

• Claims that meet the minimum standard are filed with the Minister;
• Canada’s outstanding lawful obligations are identified; and
• Claims are resolved through negotiation or Tribunal decisions.

The immediate outcomes contribute to the attainment of the program’s long-term outcomes:

• Justice for Claimants: The timely processing of claims identifying Canada’s outstanding lawful obligation and resolution of claims through negotiation or a binding Tribunal decision all contribute toward justice for claimants, which is the key long-term outcome. Through these transparent mechanisms, First Nations have an opportunity to pursue their claims against Canada and obtain resolution.
• Certainty for Government, Industry and all Canadians: Timely processing of claims contributes to certainty by ensuring that First Nations have mechanisms through which to pursue their claims. Identification of Canada’s outstanding lawful obligation contributes to certainty by providing knowledge of these obligations. Finally, resolution of claims through negotiation or binding Tribunal decisions contributes to certainty by determining and respecting, with finality, the rights of First Nations.

Together, these two long-term outcomes are expected to contribute to the SCP’s ultimate outcome that "Canada fulfills its long-standing obligations to First Nations arising out of treaties, and the administration of lands, band funds and other assets".

This in turn contributes to the Departmental Result and Core Responsibility, "Rights and Self-Determination", in which "past injustices are recognized and resolved"^{Footnote 23}.

1.5 Program Alignment and Resources

The program consists of two streams :

1. Grants to First Nations to settle specific claims negotiated by Canada and/or awarded by the Specific Claims Tribunal, and
2. Contributions for the negotiation and implementation of treaties, claims and self-government agreements or initiatives

Table 2 provides actual spending for fiscal years 2013–14 through 2019–20 for the Specific Claims Process.

It should be noted that additional funding, is available to support First Nations in participating in the various stages of the broader specific claims resolution process. This funding is administered by the Negotiation Support Directorate in the Treaties and Aboriginal Government Sector, and consists of the following funding amounts and mechanisms:

• $12.1 million per year in contribution funding to support First Nations in developing their claims ($8 million of this amount was provided through Budget 2019 for a five-year period ending in 2023-24);
• $2 million per year in contribution funding to support First Nations in litigating their claims before the Specific Claims Tribunal; and
• Loan funding to support First Nations in negotiating the resolution of their claims. Up to $25.9 million in loan authority is available for these loans each year. (Note: Settlements managed by SCB include an additional amount to cover the cost of such loans taken out by First Nations during the course of negotiations (i.e., loans are not a deduction from settlements; rather they are paid from an addition to settlements)).

These grants and contributions funding programs are governed by Treasury Board terms and conditions and loan funding by Order in Council, as well as the Financial Administration Act. The Negotiation Support Directorate administers the Negotiation loans in accordance with published Negotiation Loan Funding Guidelines as well as the Research funding which is administered through a call for proposals process. Tribunal support funding is administered through an application process also managed by Negotiation Support Directorate.

SCB administers the program through "Grants to settle specific claims", which is the authority for the payment of specific claims settlements up to $150 million in value and for compensation awards by the Specific Claims Tribunal. The payment of specific claims settlements above $150 million requires Cabinet approval and a separate source of funds from the fiscal framework.

2.1 Limitations and Mitigation Strategies

Most evaluations face constraints that may affect the reliability of findings.

Table 3 outlines the limitations encountered during this evaluation as well as the mitigation strategies put in place to increase the reliability of the evaluation findings.

3.1 Relevance: Alignment with Federal Priorities

The SCP aligns strongly with federal priorities, particularly reconciliation and supporting nation-to-nation relationships. Settling claims improves the lives of First Nations and contributes to the advancement of reconciliation. Often, where specific claims have been settled, it has resulted in an improvement in the lives of First Nations people, and has also strengthened relations between Canada and First Nations, and between First Nations and the communities that surround them.

The government is committed to renewing its relationship with Indigenous peoples based on recognition of rights, respect, co-operation and partnership^{Footnote 32}. Treaties between First Nations and the Crown are of the utmost value in ensuring a strong and collaborative relationship between the federal government and First Nations^{Footnote 33}. Budget 2019 drew a connection that settling specific claims is one means to advance reconciliation^{Footnote 34}. The SCP is viewed as a mechanism to help right past wrongs and address longstanding grievances of First Nations through a voluntary process to seek resolution of claims through negotiations, rather than through the court system. This is intended to renew relationships and advance reconciliation in a way that respects the rights of First Nations and all Canadians^{Footnote 35}. Most First Nations agree with this perspective^{Footnote 36}.

Many of those interviewed from different interview categories, were of the view, that in the negotiation process, there are attempts made by Canada to minimize liability and mitigate risk and that this is inconsistent with the pursuit of reconciliation^{Footnote 37}. As noted above, to improve specific claims, and so advance reconciliation, the federal government is working with the AFN (supporting a nation-to-nation relationship) and other parties in a spirit of co-operation and renewal to find fair and practical ways to improve the specific claims policy and process through the AFN-led engagement sessions and the JTWG on Specific Claims^{Footnote 38}.

3.2 Relevance: Alignment with Federal Roles and Responsibilities

Specific claims arise from Canada’s failure to discharge lawful obligations with respect to pre-1975 treaties and the management of First Nation lands, monies and other assets. The federal government has legal obligations to First Nations in accordance with the Royal Proclamation and the Indian Act and other legal instruments^{Footnote 39}, is accountable for legally-binding treaties and agreements made with First Nations, has a duty to honour these past commitments and has a treaty obligation to resolve and settle these claims in a timely manner^{Footnote 40}.

The honour of the Crown requires the Crown and its departments, agencies and officials to act with honour, integrity and fairness in all its dealing with Indigenous peoples. While the objectives of the SCP strongly align with federal roles and responsibilities, the manner in which the program has been implemented, including its very design, is widely regarded as lacking transparency, fairness and independence, as reported by interviewees and documents reviewed. Additionally, respondents reported that the existing SCP is slow, inflexible, and burdened by authority limits on financial mandates. However, First Nation respondents reported an increased willingness to engage in the claims resolution process with Canada, particularly since 2015. The main reasons given were Canada’s adoption of a more collaborative, flexible and creative approach.

3.3 Relevance: Alignment with CIRNAC Mandate and Priorities

Consistent with its overall mandate^{Footnote 41}, CIRNAC has taken a more interest-based, collaborative and participatory approach to SCP, by working with First Nations to promote shared interests. According to interviews with the program, this includes providing forums for the parties to amicably, constructively and creatively work together to resolve old disputes and find common interests moving forward and where parties cannot agree, having impartial, credible and efficient forums for dispute resolution.

For example, CIRNAC has prioritized modernizing institutional structures and governance to support the SCP^{Footnote 42}. As a member of the JTWG on Specific Claims, CIRNAC has been exploring innovative methods and negotiation processes to settle land claims, specifically to address priorities of funding to support the research and development of claims, an improved process to resolve claims with a value greater than $150 million, the use of mediation in negotiation processes, improving the clarity of public reporting, and enhancing the independence of the process^{Footnote 43}.

While respondents agreed that the SCP supports First Nations to "build capacity and support their vision of self-determination" through claim settlements of financial compensation and/or land, the transactional, lengthy and litigious nature of the specific claims process was widely regarded as not advancing "a nation-to-nation and government-to-government relationship between Canada and First Nations". Even in those cases where the Principles Respecting the Government of Canada's Relationship with Indigenous Peoples were employed, such as in the Kitigan Zibi Anishinabeg Global Settlement Project and Beecher Bay First Nation Rocky Point Village Site Claim, opinions about the impact on the relationship between Canada and First Nations differed sharply, with federal officials viewing the relationship to be more positive than First Nation respondents.

Settling claims acknowledges historical wrongs, such as a failure to acknowledge treaty rights and promised lands and the process of settling claims intends to improve the lives of First Nations. The resolution of these longstanding injustices can restore some of the economic and social strength of communities and promote their self-sufficiency. This includes improving the quality of life for members of First Nation communities, promoting their economic prosperity and those of neighbouring communities, and enhancing the ability of the next generation of First Nations citizens to contribute to both their own communities and to Canada as a whole. The intent of the SCP aligns well to CIRNAC’s strategic outcome to support good governance, rights and interests of First Nations. However, in practice, opinions vary about the extent of the alignment due to factors in the process for bringing claims forward and the time periods to settle claims (to be discussed in later sections).

The mandate letters of the Minister of Indigenous and Northern Affairs Canada (INAC) (2015)^{Footnote 44} and Minister of Crown-Indigenous Relations (2017)^{Footnote 45} do not directly refer to the SCP, although there is reference to clarifying obligations and ensuring the implementation of pre-Confederation, historic, and modern treaties and agreements. The mandate letter of the Minister of Crown-Indigenous Relations (2019) states "Continue ongoing work with First Nations to redesign federal policies on additions to reserves, and on the Specific Claims process^{Footnote 46}".

The SCP is consistent with the Minister’s mandate letters. For example, the AFN–Canada JTWG is a collaborative mechanism to improve the SCP. This is an example of current collaborative mechanisms that are in place, which respond to efforts being made to improve the program as per the Mandate letter and thus demonstrates alignment.

3.4 Relevance: Alignment with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Truth and Reconciliation (TRC) Calls to Action

As noted above, in 2015, the Government of Canada committed to achieve reconciliation with Indigenous peoples and to implement the Truth and Reconciliation of Canada Calls to Action. In 2016, the government endorsed the UNDRIP without qualification and committed to its full and effective implementation^{Footnote 47}, and in December 2020, Bill C-15: The United Nations Declaration on the Rights of Indigenous Peoples Act, was introduced, described as a key step in renewing the government’s relationship with Indigenous peoples^{Footnote 48}.

Redress for past wrongs, such as dispossession of lands, territories and resources, is viewed as a fundamental human right by UNDRIP, and Call to Action 45 (iii) of the TRC, and in this, the overall objective of the SCP is aligned.

Interviewees were asked for their views on how well the assessment and settlement of Specific Claims complies with the UNDRIP and the TRC Calls to Action. While the Specific Claims process exists as a mechanism to address issues outside of the courts, and to do so in ways that are advantageous to First Nations parties, First Nations respondents were in broad agreement that the specific claims policy and process, did not fully adhere to, and meet the minimum standards (as prescribed by law), of the UNDRIP articles 8(2b), 27, 31 and 40^{Footnote 49}, or the TRC Calls to Action 45(iii) and 45(iv)^{Footnote 50}.

Specifically, these articles which related specifically to foundational issues around the transparency, fairness, independence, and integration of Indigenous laws and legal traditions in the Specific Claims Process have been raised repeatedly since concerted federal efforts to address specific claims began in 1974 with the establishment of the Office of Native Claims.

The government has made incremental efforts to address these through, for example, Outstanding Business: A Native Claims Policy (1982) and Justice at Last (2007), which established an independent Tribunal with the power to make binding decisions. For decades, First Nations have also been involved in policy reform.

Most recently, for example, the AFN–Canada JTWG was launched in 2017 to improve the specific claims policy and process.

3.5 Design and Delivery: Impartiality and Fairness

Justice at Last introduced an independent Tribunal to make binding decisions where claims are rejected for negotiation or when negotiations fail^{Footnote 51}. This was one of the main recommendations in the report of the Standing Senate Committee on Aboriginal Peoples, and intended to address the widespread concern with "the apparent conflict of interest wherein the Government of Canada is both the causer and the 'resolver’" and "wherein a department that is the object of the complaint is also the one that has to resolve it^{Footnote 52}."

Respondents external to the federal government stated that, despite the introduction of the Tribunal, the SCP is not impartial or fair, and Canada remains in a conflict of interest position (acting, in what some respondents perceive as being "judge, jury and banker"^{Footnote 53}). Further, their experience is that approaches among the SCB negotiators are inconsistent, with some considered to use less collaborative approaches than others, thereby, negatively influencing the resolution of claims, the trusting relationships between the government and First Nations, and reconciliation.

With few exceptions, respondents felt that the DOJ focused narrowly on minimizing Canada’s legal liabilities at the cost of fairly resolving claims. While the Tribunal was regarded as contributing to impartiality and fairness, it was not viewed as sufficient to similarly influence the mainstream SCP. As noted in Section 3.5: Alignment with UNDRIP and the TRC Calls to Action, external respondents supported an independent process largely consistent with AFN Resolution 91/2017 Support for a Fully Independent Specific Claims Process.

A few external respondents positively cited recent cases involving more collaborative approaches, contributing to impartiality and fairness (e.g., discussions that helped clarify the claim and led to the submission of a Supplementary Legal Opinion for the Mississaugas on the Credit First Nation Treaty 23 and Treaty 23 Reserve Claim; and dialogue to ensure a complete submission for the Smiths Landing First Nation Annuity Claim, prior to preliminary review). As well, some noted previous successful use of collaborative approaches (e.g., work described by one respondent on the settlement of 14 claims in 5 years, starting in 1997, for the Michipicoten First Nation, in which case the parties were described as working through the claims in a collaborative fashion—with the researchers and lawyers working together).

The government’s view, as noted by the Standing Senate Committee on Aboriginal Peoples, is that "The Government surrenders its fiduciary duty to First Nations once they have obtained separate legal counsel."^{Footnote 54} Further, program officials cite the fact that an independent Tribunal, not the Government of Canada, makes determinations of validity of a claim and on compensation where the parties do not see a path to resolution through negotiation. In addition, respondents internal to the federal government did not raise any conflict of interest issues, stating that impartiality and fairness had improved over the evaluation period. As evidence, improvements to the SCP were cited, such as "objective research and assessment", changing case law, adoption of a more flexible risk-based^{Footnote 55} claims assessment approach, the increasingly more common reassessment of previously submitted claims, funding to support First Nations’ participation in the SCP, greater collaboration between the SCB and First Nations at early stages of the SCP, and engagement with communities focussing on building trusting relationships and reconciliation. Several respondents noted that the program had successfully experimented with collaborative approaches since the 1980s (e.g., joint research to agree on the facts of a claim), but this approach had been abandoned in the past due to cost and time concerns. Some program officials suggest that this approach is starting to be utilized again.

As noted in the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, the Government of Canada’s commitment to reconciliation and to work more collaboratively, have positively influenced the resolution of some claims (e.g., Beecher Bay First Nation Rocky Point Village Site Claim, Kitigan Zibi Anishinabeg Global Settlement Project), introducing greater flexibility, collaboration, and innovation, to fairly resolve claims. These cases, like the successful experimentation with collaboration early in the claims process, do offer proven ways to tangibly increase transparency and improve fairness.

3.6 Design and Delivery: Accountability and Transparency

To address concerns among First Nations about "the lack of transparency in public reporting to judge the validity of their criticisms or gauge just how well the government is handling specific claims", Justice at Last introduced more visible and substantial funding (i.e., for settlements through the Specific Claims Settlement Fund) to better meet the needs of the SCP, widely available information about spending on specific claims, and explicit targets for resolving outstanding claims to hold the government to account^{Footnote 56}.

SCB respondents generally felt that the program was transparent, indicating that the policy, timelines and process are all accessible to the general public and citing the publicly available "Reporting Centre for Specific Claims" website and mentioned that First Nations can request a status update on their claims at any time. Program officials have stated that First Nations have access to full historical records through Library Archives Canada, departmental records and private archives and there are no restrictions for First Nation researchers. Program officials also stated that SCB shares with First Nations historical documents and annex of documents that have been uncovered during the assessment. The program also noted however that legislation – and not the SCB staff - govern the rules around disclosure of some information.

Transparency has, however, remained a concern of First Nations, central agencies and other external respondents interviewed. First Nations urged greater collaboration and communication (e.g., about changes – even changes to processes, and timelines), and information sharing (e.g., access to full historical records^{Footnote 57}, disclosure of research, method to determine final settlement offers, settlement agreements for other claims) from Canada from the very onset of a claim (at the early research stage) for the process to be more transparent (and efficient). They stressed the importance of understanding the status of a claim at any given time and in detail, and in cases where claims are rejected, detailed information as to the reasons why, so that deficiencies can be addressed.

In terms of the public reporting, some external respondents offered the view that performance indicators were sometimes misleading (e.g., "false representations of success") and the performance story was not being comprehensively communicated (e.g., the "Reporting Centre for Specific Claims" website is an "information system" focused on transactional outputs rather than bigger picture statements about performance and outcomes, and exceptions are not explained). The misalignment of outcomes and indicators was noted by the evaluation team and program officials stated that weaknesses in the program performance framework were being addressed through a review of outcomes and performance indicators and that new indicators would be introduced. Justice at Last noted that public reporting failed to shed light on the program’s human and financial resources, an issue that remains.

In terms of reporting, central agencies agreed that accountability had improved internally through the Claims Advisory Committee, more thorough information being provided to central agencies and a more central role for CIRNAC’s Chief Financial Officer. However central agencies have expressed the view that program reporting needs improvement. For instance, the program’s reporting approach describes how many claims are at various stages at their lifecycle regardless of when they were submitted to the Minister.

Central agencies have also expressed that forecasting needs to be improved. In particular, the reporting/forecasting process of the Specific Claims Settlement Fund. The latter is of particular concern given increasing pressure on the Specific Claims Settlement Fund and concerns about its sustainability. In 2009, the Specific Claims Settlement Fund was resourced at $250 million annually for 10 years to pay out settlement agreements and awards of the Tribunal, and has been replenished on four occasions since then with a current funding profile up to 2025/26. In conjunction with these replenishments, SCB has worked collaboratively with central agencies to improve the forecasting and reporting processes, which has included changes to the reporting content and more frequent communications, including the creation of the Specific Claims Interdepartmental Steering Committee.

As noted in Section 3.5: Impartiality and Fairness, collaboration between the program and First Nations and engagement with communities were identified as important factors contributing to fairness. External respondents agreed that these factors also advanced transparency, with the free flow of information between the program and First Nations an important aspect. While First Nations stated that there was room for improvement, they did recognize that, over the evaluation period, federal officials are increasingly reaching out to clarify issues during the assessment phase (rather than simply rejecting claims outright), collaborating during the research and negotiation stages, and communicating information about funding availability and allocation methods, and generally maintaining open lines of communication. As one example, the SCB launched its first e-bulletin (Fall 2020), providing First Nations with an update on the progress on claims, information in response to impacts on regular business due to the COVID-19 pandemic, and key program contacts.

3.7 Design and Delivery: Rapid Processing

At the time of Justice at Last, the average time to process a claim was 13 years, leading to "repeated calls from all quarters for more resources to speed up the process"^{Footnote 58}. To address this issue, improvements were made to internal government procedures including establishing hard timeline targets to initially review, and then also to assess and negotiate claims.

Based on the data made available for the evaluation, and because the data and indicators make it difficult to assess, it is unclear if the average time to process claims received by CIRNAC and filed with the Minister over the evaluation period show improvement compared to the 13 year average reported in Justice at Last. Of the 505 claims subject to negotiation during the evaluation period (including those accepted prior to the evaluation period), 43% had been resolved through negotiations by 2021-22 (Table 8). The data also shows that the legislated three-year time frame to determine if the claim will be accepted for negotiation was only met for 46% of claims filed with the Minister over the evaluation period (Table 14). Establishing the Tribunal, also reportedly, by some interviewees, facing resource issues, does not appear to have improved overall processing time—of the 87 claims filed with the Tribunal over the evaluation period, 84% remain to be heard (Table 4).

Recent communications about the pace of settlement and assessment of claims provided by the program to supplement the data analysis undertaken for the evaluation indicate that the pace of settlement has been increasing. The Fact Sheet July 2021 highlights that "a total of 117 claims were resolved over the past three fiscal years (2018-19 to 2020-21), the highest number of claims settled over any consecutive three year period since the beginning of the program" and indicates that "for the previous three year period between 2015-16 to 2017-18, a total of 59 claims were settled". While the data in the Fact Sheet July 2021 is not presented in a way that accounts for the tracking of any particular claim through a 3-year period, it shows that the pace of settlement and assessment of claims is trending as increasing overall.

To increase efficiencies and in order to address the diversity and complexity of specific claims, a streamlined approach to claims processing was implemented by the SCB, (e.g., bundling of similar claims at the research and assessment stages and negotiation stages expedited legal review of small claims, separate arrangements outside the SCP to handle larger claims valued at $150 million or more). In the case of bundling at the negotiations stage, multiple similar claims were grouped into larger projects as a means to avoid duplication of effort and a broader use of studies and expertise amongst tables resulted in leveraging accomplishments in several negotiations.

SCB respondents expressed frustration that the introduction of the Justice at Last timeline targets was not accompanied by a corresponding increase in human and financial resources. According to program sources, the SCB has not had an increase in FTE’s since 2007, although the volume of claims has increased. Following Justice at Last, there was a focus on reducing the backlog of claims, which, given the limited resources, occurred at the expense of thorough consideration of claims in the inventory. This reportedly led to some claims being rejected as not having merit, then being submitted by the claimants to the Tribunal, and then being brought back into the SCP for negotiation. So, while there was an initial reduction in the backlog, many of the rejected claims were reportedly returned to the SCP. Respondents reported that the persistent resource limitations continued to impact all aspects of the SCB’s ability to administer the SCP (e.g., communications with First Nations, collaborative approaches, maintaining a consistent complement of negotiators) and ultimately processing times.

ISC regions are responsible for the implementation of settlement provisions if there is a land (Additions to Reserve) component. This can also be a complex and lengthy process, requiring, in one case, 15 years from settlement. The division of INAC into 2 separate departments - CIRNAC and ISC has added a further complexity and pressure to this part of the process, as the former INAC regional offices are now part of ISC.

Internal respondents reported that the SCB has been actively exploring different ways to increase efficiencies and improve processing times. These include collaborating on early research and claims assessment (e.g., to agree on the facts of claims which yield downstream efficiencies during the negotiation and settlement stages), bundling of claims, global settlements, and delegation of decision-making and authorities. The Kitigan Zibi Anishinabeg Global Settlement Project successfully employed several of these efficiencies to the satisfaction of the First Nation and Canada. Nevertheless, respondents stressed that some claims are more complex than others, or more challenging than anticipated, and simply require more time and effort.

First Nations respondents universally expressed frustration with the program’s inability to meet timelines. There was a general consensus among respondents, that meeting the timeline targets should not occur at the cost of fairness, justice and transparency, or ensuring a positive experience for First Nations during the claims process so as to not detrimentally impact the relationship and trust built with Canada. Respondents did not suggest dispensing entirely with timeframe targets, but rather to ensure they are reasonable while respecting reconciliation.

3.8 Design and Delivery: Access to Mediation

Justice at Last recognized that, before First Nations decide to file a claim with the Tribunal, access to an alternative dispute resolution mechanism was important to help settle disputes that may have stalled negotiations^{Footnote 59}. Canada recognized that mediation should be used more often to resolve these impasses, and committed to increasing its use in the future by providing access to a neutral third party. The Justice at Last included a commitment to support mediation services. In 2011, the Mediation Services Unit under Treaties and Aboriginal Government sector was created to administer the services, supported by 5 FTE's and a Request for Proposals to establish a roster of mediators was launched.

According to program information, in recent years, CIRNAC and First Nations claimants underwent, and are undergoing, successful mediation sessions from which best practices will inform a strategy. For example, the 2018 Big Grassy First Nation Highway specific claims mediation enabled collaboration between the First Nation, the Specific Claims Tribunal, and specific claims negotiators: an agreement-in-principle between the parties was reached within two days, and a financial mandate was approved for the agreed-upon amount.

Additionally, Canada and Kinistin First Nation recently agreed to use mediation concerning their agricultural benefits specific claim due to an impasse with respect to compensation. Terms of Reference and information-sharing agreements have been put in place for the benefit of other First Nations bringing forward agricultural benefits claims. First Nations' views on the successes of mediation processes will inform future opportunities with First Nations for mediation, refine processes and a mediation strategy.

According to evaluation interviewees, and some program information, the use of mediation services has reportedly been very limited – reported as being used only 1 time between 2013-14 and 2019-20. And in the case(s) where it has been used, the process is reportedly very lengthy. Most respondents external to the federal government were unaware that mediation services were even available outside the Tribunal process^{Footnote 60}. The OAG found that there is a continued need for the federal government to embrace mediation (or other dispute resolution mechanisms), this was the experience of some First Nations respondents who had proposed using mediation services to resolve impasses during negotiations, but were rebuffed by Canada (both parties have to agree to submit a dispute to mediation)^{Footnote 61}. Other external respondents expressed reluctance to engage in mediation because the available mediators were retained by Canada and therefore the respondents felt that they may not be neutral.

Both internal and external respondents also expressed concern that mediation is not a worthwhile exercise because it is a non-binding process, meaning the parties can withdraw from mediation at any time, and a decision cannot be imposed on the parties by the mediator.

3.9 Design and Delivery: Program Delivery and Governance

There is a mixed sense amongst interviewees as to whether there is a clear understanding of the roles and responsibilities of the parties involved in the SCP. External interviewees, on the one hand, expressed that there is confusion over the roles and responsibilities of federal parties in the SCP, particularly the degree of influence over decisions (i.e., CIRNAC and the DOJ in acceptances of claims for negotiation). Internal respondents, however, responded that they were confident that all involved parties, including First Nations, have a clear understanding.

Respondents offered the following observations regarding SCP governance and its supporting advisory bodies (JTWG and Claims Advisory Committee), and their influence on program delivery:

• The JTWG and Claims Advisory Committee advisory bodies are regarded as effective and helpful. Respondents view the JTWG as open and collaborative, and the Claims Advisory Committee as ensuring consistency in the acceptance of claims, providing a repository for best practices, and a platform for the SCB to experiment with innovative approaches to claims resolution.
• Lack of coordination between claim negotiations and settlements involving land has reportedly caused delays beyond the immediate SCP and into the sphere of implementation of settlement provisions. Poor communications between the separate functions of those responsible for negotiations and settlement (Specific Claims (SCB)) and those responsible for implementation (ISC regions, responsible for Additions to Reserve), are factors offered by respondents. These issues have been compounded by the division of INAC into 2 separate departments which has added further complexity and pressure to this part of the process, as the former INAC regional offices are now part of ISC and hence the end-to-end SCP (i.e., including implementation aspects) are across two Departments (CIRNAC subject to different mandates and priorities).
• Although the DOJ has continued to play an important role at the assessment and negotiation stages (e.g., providing legal opinions, risk assessments, acting as general counsel), its influence on the assessment and negotiation stages has evolved over the evaluation period as the SCB has exercised more discretion, pragmatism and flexibility (e.g., considering other factors, such as reputational risk, when assessing risk^{Footnote 62}) in consideration of supporting favourable outcomes for First Nations.
• The SCB has increasingly been maintaining more open lines of communication with First Nations, and has been more willing to listen and collaborate with them and the broader claims community.
• The Negotiations Support Directorate, which is not part of the SCB, but plays an important downstream role, has proven more responsive to feedback from the National Claims Research Directors, a national body of specialized technicians representing 18 Claims Research Units across Canada.
• There were dissenting opinions about the Tribunal. External respondents interviewed as part of case studies viewed the Tribunal as an important alternative to the mainstream specific claims process (although in the Lake Babine Nation Tachek I.R. 25 (Topley Landing) Claim, it was felt the Tribunal did not consider oral and written evidence equally). Some respondents, however, tended to view the Tribunal as biased and adversarial, overstepping its mandate (i.e., into negotiation, establishing unrealistic timelines), unfamiliar with government policies and process, and rendering decisions that have greatly increased Canada’s contingent liability (the Tribunal rejection of the 80/20 compensation method in the 2016 Huu-ay-aht First Nation Claim). Other SCB respondents observed that the Tribunal is a very effective part of the program and functions well, and the new jurisprudence it has issued has been a positive factor by providing the opportunity for more claims to be submitted (including previously rejected claims).

Overall, while external respondents expressed some confusion over the roles and responsibilities of federal parties in the SCP, particularly the degree of influence over decisions (i.e., CIRNAC and DOJ in acceptances of claims for negotiation), internal respondents were confident that all involved parties, including First Nations, have a clear understanding.

3.10 Design and Delivery: Capacity and Resources

Capacity and resource constraints have been persistent issues facing the SCP. Justice at Last observed that the lengthy period required to resolve the average claim had led to "repeated calls from all quarters for more resources to speed up the process"^{Footnote 63}. Respondents internal and external to the federal government were in broad agreement with this statement. Further, it was noted by both internal and external respondents that broader use of more collaborative approaches discussed earlier, are important contributors to relationship building in support of reconciliation. There is also a requirement for more resources than are currently available.

There is inconsistent awareness among First Nations respondents about the resources available to assist with the development of claims and participation in the negotiations process, and the administrative procedures to access funding. The process to obtain funding is regarded to be administratively onerous (i.e., three funding mechanisms, three proposals, multiple budgets, and multiple reports required for the same claim as it moves through the process), consuming scarce administrative resources. Many respondents were unaware about the increase from $4M to $12M and availability of multi-year funding for research, and the increase in the maximum allowable amount and increased flexibility for negotiations support. As noted earlier, First Nations bear a substantial cost to research and negotiate claims, well beyond that provided through the SCP’s grants and contributions (in spite of the increase in research funding), a serious constraint to their participation in the specific claims process.

For example, the Mississaugas of the Credit First Nation reportedly invested approximately $150,000 to research and submit their Treaty 22 and Treaty 23 claim, well beyond the $25,000 available through the SCP. Respondents reported that scarce resources are often diverted from other important community priorities (e.g., those contributing to wellbeing) to do so, or distributing claims efforts over multiple years to align with funding ceilings. The latter can delay claim resolution and return on the investment of settlement compensation. Respondents also reported that those First Nations that already have healthy and substantial own-source revenue are in a much better position to consider and to prepare claims, to invest in them through the SCP life cycle and to manage the risk that their claims may not be resolved in their favour.

First Nation respondents were particularly sensitive to the power imbalance with Canada, due to constrained funding and limited human resource capacity, during the negotiations process. Loan funding for negotiations is a substantial issue for First Nations, with some feeling this mechanism "holds power over them, and they’ll have to say yes to a settlement because they have loan funding outstanding", an issue that has caused the disruption of some claims.

According to internal respondents, an increase in the volume of claims combined with targets for initial review, and assessment and negotiation, have been beyond the SCB’s current resources and staffing allocations (and those of First Nations), resulting in lengthy periods to resolve claims and failure to meet legislated timelines (as described in Section 3.7: Rapid Processing). Similarly, DOJ capacity issues (e.g., staffing levels) have slowed delivery of legal opinions. Central agencies expressed concern about the growing contingent liability and pressure on the Specific Claims Settlement Fund.

As noted in this report, the program has made considerable efforts to improve the experience of First Nations during the SCP (within the confines of the Specific Claims Policy and resource availability), however, efforts have been impacted by not meeting performance targets. According to interviewees, SCB staff have also been reportedly under serious pressure, with excessive workloads resulting in reported high rates of absenteeism and attrition (e.g., due to stress).

3.11 Design and Delivery: Audit and Evaluation Recommendations

In 2016, the OAG reported on whether the department adequately managed the resolution of First Nations specific claims^{Footnote 64}.

In its 2016 audit, the OAG was critical of the department’s management of the resolution of First Nations specific claims^{Footnote 65}. The OAG made ten recommendations. As of March 31, 2021, CIRNAC reports that all of the recommendations have been implemented.

3.12 Design and Delivery: Gender-based Analysis Plus

GBA Plus considerations have not been reflected in the design and delivery of the SCP. Most respondents did not view GBA Plus as relevant to the SCP, since the process is gender neutral and solely designed to address historic grievances. Furthermore, the program is not in the position to follow up with First Nation’s on how compensation has impacted them.

Other respondents stressed the need to consider GBA Plus, noting that women have disproportionately experienced losses in instances in which the Crown has not fulfilled its treaty obligations or has mismanaged First Nation funds or other assets, and have been overlooked in the redress process.

One First Nations respondent observed that the Specific Claims Policy discourages claims which address the specific and unique ways women have been negatively impacted by breaches of Crown obligations (e.g., impacts on traditional land use activities, transmission of language and culture, how children were raised). This respondent stressed the need for multidisciplinary studies to establish the contribution of Crown breaches on broader socio-economic and environmental losses suffered by First Nations, and to find other ways to compensate for these losses beyond financial and land settlements.

3.13 Design and Delivery: Performance Measurement

The evaluation team was unable to comprehensively assess performance against expectations because targets were not set for four of the nine indicators identified in the 2018 Performance Information Profile, as listed below :^{Footnote 65}

• number and percentage of submissions filed with the Minister, by year and trend;
• number and percentage of claims for which CIRNAC assessment is overturned by Tribunal;
• number and percentage of claims accepted for negotiation; and
• number and percentage of claims resolved through the Tribunal.

The Specific Claims Program distinguishes those indicators that provide contextual information from those that provide performance information. Contextual indicators, like those above, provide information about external conditions relevant to the performance of the program, they do not provide any information related to the evaluation issue of SCP "effectiveness". As such, contextual indicators are outside the control of the SCP and so a target is not applicable.

There are also opportunities to improve the alignment between some outcomes and indicators. For example, the ultimate outcome "Canada fulfills its long-standing obligations to First Nations arising out of treaties, and the administration of lands, band funds and other assets" is measured by the indicator "number and percentage of claims assessed within the legislated three-year time frame, by year and trend".

Both internal and external respondents recognized many of these and other (i.e., unrealistic targets) are deficiencies with the program performance framework. SCB officials indicated that some of these were already being addressed through an internal review process.

The method the program uses to calculate several indicators warrants comment. Nearly all of the program indicators are based on different stages in the lifecycle of a claim, for example, number and percentage of submissions filed with the Minister—by year and trend, number and percentage of claims accepted for negotiation—by year and trend, and number and percentage of accepted claims resolved through negotiation—by year and trend. Given that the federal government plans and budgets on a fiscal year basis, that claims are managed through different lifecycle stages (with important, including legislated, performance standards), and many of the program indicators are qualified "by year and trend," the evaluation team expected that the program would use cohort analysis to help provide insight into the performance of the claims process. Instead, the program relies on simple volume calculations, which obscures important information about the lifecycle of a claim, where efficiency improvements could be warranted, and the impact of efficiency improvements. An example of the different approaches follows:

• Cohort approach: During FY2015-16, 66 claims were filed with the Minister, 46 in 2014-15 and 20 in 2015-16. Of these, 1 was accepted for negotiation in 2015-16, 2 in 2017-18, 17 in 2018-19, 21 in 2019-20, 3 in 2020-21 and 1 in 2021-22—for a total of 45 of this cohort of claims accepted for negotiation.
• Volume approach: During FY2015-16, the program reported that 13 claims were accepted for negotiation. These were not claims filed with the Minister during FY2015-16, but claims that were prior to 2013-14, in 2013-14 and 2015-16.

Both methods of analysis have merit, conveying important information to monitor the program and improve performance; excluding one or the other does not provide the full picture of performance as noted in Section 3.6: Accountability and Transparency. In the following section, where possible, results of the cohort and volume methods of analysis are provided.

3.14 Performance: Achievement of Outcomes

For the following sections, a review of program data including financial, performance, monitoring and other data collated in the Specific Claims Database and held by CIRNAC on specific claims was conducted to help address the questions of performance and efficiency/economy. The evaluation used data and data sources identified in the program’s Performance Information Profile, including the program’s Specific Claims Database and the Aboriginal Treaty Rights Information System.

4.1 Program Budget and Expenditures

Statement of key finding.

As shown in Table 2 (page 9) Actual program expenditures by fiscal year, over the 7-year period covered by the evaluation, SCP expenditures increased and have been increasing year over year (noting, exceptionally, FY13-14 and FY17-18 Vote 10 spending was far greater than in other years).

4.2 Efficiency of Management and Delivery

Many of the same issues raised earlier in this report were also noted by respondents in context of this section—these are detailed in sections 3.5: Impartiality and Fairness, 3.6: Accountability and Transparency, 3.7: Rapid Processing, and 3.10: Capacity and Resources.

SCB respondents generally agreed that the SCP is well-managed, carried out efficiently and economically, with ongoing efforts to identify program improvements. As noted in Section 3.10: Capacity and Resources, there was widespread recognition that the program has been operating under chronic resource constraints, yet much has been achieved, and more could be accomplished if adequately resourced. ISC regional respondents, pointing to the inadequacy of resourcing for policy, research, and appraisal and indicated that there is room for improvements to be made concerning some areas of the program.

Respondents external to the federal government identified many of the same issues detailed earlier in this report, highlighting the short-sighted focus on the program’s operations and management budget at the expense of the resources realistically required to fairly resolve the portfolio of outstanding claims (including compensation). Respondents felt that there has not been an equitable distribution of resources to support the SCP, and the impact of under-resourcing, including activities that interface with the SCB (Negotiation Support Funding) ,were felt strongly. First Nation respondents agreed that negotiated resolutions are the most cost-effective as well as their preferred means to resolve specific claims within the Specific Claims Policy, and suggested that greater efficiencies could be realized through more collaboration (e.g., joint research) and consistency in the approach to different classes of claims.

4.3 Internal and External Factors

5.1 Conclusions

5.2 Recommendations

The findings and conclusions from this evaluation have led to the following recommendations:

It is recommended that CIRNAC:

1. Co-develop with First Nations partners a modern and transformative specific claims policy and process, that:
   • Better aligns to Government of Canada and Departmental mandates and priorities and reflects UNDRIP and the TRC Calls to Action, including principles of and upholding the honour of the Crown.
   • Establishes options for implementation, and a realistic and sufficiently resourced implementation plan, that can lead to more fairness, impartiality, transparency, independence and collaboration in the claims process.
   • Ensures that Indigenous customs, rules, and legal systems are systemically incorporated into the specific claims policy and process.
2. In cooperation with First Nations partners, continue its current improvement initiatives related to delivery, effectiveness and efficiency of the program, including:
   • Communications - improving the clarity and opportunities for transfer of communication from SCB to First Nations; and, within the department between the directorates with the SCB and other areas that interface with the SCB (Pre-research Negotiations support branch in Treaties and Aboriginal Government and regions (ISC)).
   • Performance Measurement – improving the data collection approach with more accurate and meaningful indicators and articulation of longer term outcomes, in consultation with First Nations.