Nov 16/98: Ottawa stalls native land promise



Globe and Mail
Monday, November 16, 1998
Erin Anderssen - Parliamentary Bureau

[S.I.S.I.S. note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only.]

Ottawa -- The federal government is balking on its long-standing promise to set up an independent land-claims tribunal because of fears that the new process could lead to skyrocketing damage awards for native bands.

After years of negotiations, the tribunal's future is stalled over money: Ottawa wants to cap the amount the quasi-judicial body could award in damages, a move opposed by native leaders.

Concerns about the tribunal -- and its ultimate cost to Ottawa -- became an issue after this summer's multibillion-dollar pay-equity decision by Canada's human-rights tribunal. Government officials started to worry that the Crown could end up paying exorbitant amounts if the land-claims tribunal were allowed to award unlimited damages in disputes.

It remains unclear how much Ottawa could face paying in such cases; the Department of Indian Affairs is scrambling to calculate a realistic prediction of financial liability. Officials at the Assembly of First Nations, the national native organization involved in negotiations to create the tribunal, estimate the cost of potential judgments at between $200-million and $300-million a year.

The tribunal was promised by the Liberals in their 1993 election platform, and is considered by many to be the best solution to the growing number of long, costly land claims.

Together with a new land-claims commission to help mediate disputes, the tribunal is intended to be a last resort to settle deadlocks. The current system, where failed talks eventually land in the courts, is frustratingly slow -- there are more than 400 cases outstanding -- and Ottawa is widely seen to be in a conflict of interest, handling claims against itself.

The tribunal, proponents say, could settle disputes faster, travelling to the communities involved and deciding cases with a balanced panel of native and non-native members. Its rulings would be binding on both sides.

The tribunal would deal only with specific land claims -- not comprehensive ones such as the newly negotiated Nisga'a treaty. Specific claims involve disputes where treaties already exist between the natives and the government. For example, bands often file specific claims if they feel the Crown has illegally appropriated land awarded in treaties that were signed generations earlier. In the past two decades, Ottawa has paid about $800-million to resolve 185 specific claims.

"How can you cap legal obligations?" said Rolland Pangowish, the AFN official co-chairing the task force charged with developing the tribunal. The task force is made up of native representatives and staff from the Justice and Indian Affairs departments.

"All we're seeking is a fair resolution," said Mr. Pangowish, who remains optimistic that the tribunal will go forward. "We're not seeking to exploit Canada's treasury."

But in a meeting with chiefs last month, Indian Affairs Minister Jane Stewart made it clear that a tribunal with no financial limits would be a hard sell to cabinet -- particularly given the current financial climate and recent pay-equity ruling. The Oct. 19 meeting is detailed in a background document written by Mr. Pangowish and Dan Kohoko, a land-claims director with Indian Affairs, who also co-chairs the task force. In the meeting, the document says, Ms. Stewart proposed a "staged approach" -- where the government might first create the new commission and then set up the tribunal later.

That suggestion did not go over well with native leaders, who believe the tribunal is a necessary incentive to advance negotiations and remove Ottawa's control over the process. In a letter to the minister two weeks ago, AFN National Chief Phil Fontaine expressed concern that Ottawa appeared to be "backing away from its commitment."

The task force, which has been meeting since March, 1997, has reached an agreement on many of the tribunal's elements, including its role and representation.

But, according to both native and government sources, the proposal was stopped by senior bureaucrats in the Finance Department and Treasury Board, who believed that a tribunal without financial constraints would cost Ottawa too much money and, in any event, would not pass cabinet.

Maneuvring the situation is politically tricky for both sides; while the government's liability concerns make it difficult for Ms. Stewart to successfully pitch a plan that she is largely said to favour to her cabinet colleagues, Mr. Fontaine would have an equally challenging task to maintain support from his chiefs if he agrees to some form of cap that excludes certain claims from the process. Even so, one observer close to government suggests that cabinet is unlikely to ever approve a claims tribunal without some sort of mechanism to anticipate -- and control -- the cost.

The task force is now investigating other options to appease financial worries, such as budget allocations or payment plans to minimize the burden of large settlements.

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