The Specific Claims Tribunal, or SCT, is for First Nations to seek dispute resolution related to the fulfilment of historic treaties outside the court system. In a letter to the Chairperson of the SCT, the Aboriginal Law Section of the Canadian Bar Association offers its recommendations on how to make it more efficient and flexible. Below are the most salient ones.
French-speaking judges at the SCT
The Tribunal is composed of judges appointed from provincial Superior Courts across the country. But as the Section notes, none of the current roster speaks French and this is a problem for access to justice for French-speaking First Nations. “We believe at least two French-speaking members are necessary to provide First Nation claimants with access to mediation,” it says, adding that it would write to the Minister of Crown-Indigenous Relations about this issue as well, since the SCT does not appoint its members.
Member from the Superior Court of Quebec
For the Tribunal to assess claims related to Quebec, at least one member should be from the Superior Court of Quebec and possess the requisite understanding of civil property law. “This is not a concern about regional parity, but rather about legal expertise and claimants’ confidence in the SCT’s competency,” the letter reads.
Cautiously integrating virtual hearings into the SCT’s tool bag
The pandemic has forced many proceedings online, and in many cases, this has positive impacts on access to justice. However, the CBA Section believes that reconciliation and respect for cultural diversity require in-community hearings. Those “are particularly important for community witnesses and giving oral history evidence,” the letter says, “but also to give community members access to the hearing of their claim.” Further, any proposal to include virtual hearings must maintain the right of claimants to choose in-community hearings instead.
Access to claim documents on the SCT website
SCT documents, including case management conference minutes, directives, and orders, used to be available on the website so the public and legal counsel could keep up to date with a claim’s status. These documents were recently removed due to official language requirements. The Section would like them returned to the website as soon as possible. “If not possible, an electronic docket like that of the Federal Courts can be an appropriate solution,” it adds.
Creative costs awards
A creative approach to costs, the Section says, can make the claims process more efficient. If cost awards send the signal that preliminary objections are not sanctioned, it can reduce the number of pre-hearing applications. This is especially important since First Nations typically do not have comparable resources to the government. “If the rules allowed costs paid in advance by the government to First Nations according to the test in BC. v. Okanagan Indian Band, it would not only supplement First Nation budgets to move claims along but also serve as a useful tool to focus both parties on what is necessary to get the job done fairly,” the letter reads.