January 14, 2019
On December 14, 2018, Maurice Law’s Carly Fox presented on “The Role of Indigenous Laws in Specific Claims” at the Pacific Business and Law Institute Specific Claims Conference in Vancouver, BC.
The presentation was based on the published work of Maurice Law Associate Alisa Lombard, former counsel at the Specific Claims Tribunal, entitled “Specific Claims Adjudication Processes and Cultural Diversity: Reconciling Societal Traditions,” Canadian Journal of Administrative Law & Practice; Scarborough Vol. 29, Iss. 2, (Jun 2016): 187-207.
The following is a summary of Alisa Lombard’s paper:
I. Reconciliation is a legal imperative
The basic premise of the proposition that reconciliation is a legal imperative is that reconciliation is a shared journey towards the desired outcome of the resolution of issues arising in relation between the State and Indigenous Peoples.
In aspiration of this, the Specific Claims Tribunal may take cultural diversity into account in the development and applications of its rules of practice and procedure.
For example, the Specific Claims Tribunal Act, SC 2008, c 22 empowers the Tribunal to consider:
Further, the Specific Claims Tribunal itself, being born out of a historic effort between the Assembly of First Nations and Government of Canada, may be seen as a practical and principled example of a means to advance reconciliation by resolution of challenges that have arisen in the Indigenous-State relationship.
The Supreme Court of Canada (SCC) provides guidance on what is meant by this. In R v. Sparrow,  SCR 1075, the SCC endorsed the view that historical wrongs must be recognized (para 49). and iIn Tsilhqot’in Nation v. British Columbia, 2014 SCC 4, the Chief Justice established that “The governing ethos is not one of competing interests but of reconciliation..” Consequently, establishing that reconciliation involves addressing both historical wrongs and contemporary obligations (para 17)..4
The Tribunal’s mandate therefore includes the shared goal of reconciliation by acting as a mechanism of reconciliation tasked with engaging novel legal issues – which rests on constitutional underpinnings, including but not limited to section 35 of the Constitution Act, 1982.
Section 35 of the Constitution Act, acts to protect Aboriginal rights against provincial and federal legislative power and provides a framework to facilitate negotiations and reconciliation of Aboriginal interests with those of the broader public (Tsilhqot’in at para 125).. In Canada v. Kitselas First Nation, 2014 FCA 150, the Federal Court of Appeals recognized that these underpinnings apply to the Tribunals work (para 34) and in Little Salmon/Carmacks First Nation v. Yukon, 2010 SCC 53, the SCC acknowledged its reconciliatory nature (para 10)..7
Therefore, grounded in statutory powers, regulatory frameworks and the SCC, the Tribunal is mandated to facilitate reconciliation as a legal imperative that is cognizant of historic wrongs and contemporary obligations. As such, it must recognize that such a process involves the plurality of legal perspectives and orders. This gives rise to more refined legal imperative that the societal traditions of Indigenous peoples must be given space in the processes that affect Indigenous interests. Failure to do so would result in an incomplete evidence and affect outcomes.
One example of this is oral history evidence. Challenges to the admission and consideration of oral history evidence are evident, but it is necessary to resolve this tension inherent in the reconciliation of legal traditions. On one hand colonial traditions emphasize written documentation and on the other Indigenous legal traditions are based in oral sources of knowledge keeping. The SCC decision in Tsilhqoti’in demonstrates the dilemma that this presents (paras 17 and 82).. In the absence or inclusion of oral history evidence the thrust of an evidentiary record in adjudicative proceedings can be radically altered.
Therefore, the establishment of procedures allowing for the inclusion of accurate and complete reception of oral history evidence into adjudicative proceedings are critical. A process capable of receiving a complete evidentiary base contributes to a just resolution of claims and a just resolution of claims, both historical and contemporary, enables reconciliation.
II. Culturally Diverse Adjudicative Proceedings in Practice
The Tribunal has developed practical experience dealing with evidence, Indigenous legal traditions and customary law. This is demonstratable in two areas:
Case Management Conferences (CMC)
All claims before the Tribunal go through CMCs and Rule 49(1) sets out the matters to be discussed (Specific Claims Tribunal Rules of Practice and Procedure, SOR.2011-119, r. 49(1))..9 Notably, it states that every CMC must address,
As such, CMCs provide a space to:
Therefore, CMCs provide a built-in mechanism to ensure that adjudicators, their staff and all those involved in the process are better prepared by taking an active role in the case management process.
Tribunal hearings are public (subject to confidentiality orders).
Further, the Tribunal is mandated to conduct hearings in any manner it considers fit. As such, ways in which cultural diversity have been included, are:
On Site Pre-hearing Discussions
Ceremonies, Expressions of Culture, Spirituality and Societal Traditions
Oral History, Elder and Lay Witness Testimony
Afterhours in Shared/Close Accommodations
III. The Future
With the dawn of recent SCC decisions, the reconciliation imperative and a general appetite for much needed change, the creation of more specialized and appropriate processes to adjudicate matters relation to reconciliation of Indigenous-State relations must be created.
As such, it is incumbent upon existing and future adjudicative process to actively consider how meaningful effect is given to the Residential School apology, offered on June 11, 2008 in Parliament, which said in part:
“There is no place in Canada for the attitudes that inspired the Indian Residential Schools system to ever prevail again. You have been working on recovering from this experience for a long time and in a very real sense, we are now joining you on this journey.”