The federal Specific Claims Tribunal is on the chopping block and October 16 is the execution date. This sudden and radical policy change has many First Nations worried. About 65 current land claims negotiations with First Nations will be immediately affected. Negotiators are saying that government representatives are telling them they will be offered a “take it or leave choice.” After October 16, all offers will be taken off the table.
As lawyer and land-claims negotiator Alan Pratt noted, “Meetings are being cancelled, and the negotiators are telling the First Nations and their advisors that they will be preparing – the federal side will be preparing a ‘take or leave it’ offer.” Pratt said his colleagues and their First Nation clients see this change in direction as a betrayal.
The government didn’t consult any other parties to the negotiations, which many say reveals a lack of good faith. “The government must continue to negotiate in good faith, in adherence with its own established policies on specific claims,” said the Liberal critic for Aboriginal Affairs and Northern Development, Carolyn Bennett.
Indeed, the concept of good faith is something that has always been part of speeches by all parties. In this case, the legal definition of good faith means an honest intent to act without taking an unfair advantage over another person or to fulfil a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions.
It is something that is important not only within a nation but is recognized worldwide. “Good faith is a fundamental principle of international law, without which all international law would collapse,” said Judge Mohammed Bedjaoui, former President of the International Court of Justice. In addition the Vienna Convention on the Law of Treaties provides: “Pacta sunt servanda: Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
First Nations groups say the move is an ultimatum that betrays the spirit of the Specific Claims Tribunal Act. “A decision to terminate negotiations ought to be based on the principles of good faith, respect and mutuality, rather than arbitrariness and unilateralism,” the AFN chiefs said in a resolution passed at the AFN Annual General Assembly in Moncton, New Brunswick.
First Nations chiefs have a right to be concerned. The Specific Claims Tribunal is only authorized to give out $250 million in settlements per year, for 10 years, and no settlement can be bigger than $150 million. These amounts at times don’t even come close to being reasonable.
Good faith is an important component in this issue. What the Conservatives have done will come back to haunt Canadians.
NDP MP Romeo Saganash said the decision is unconstitutional because the federal government must respect its fiduciary duties and obligations. An unfair hardship will be placed on First Nations that is cumbersome and high in proportion to any benefits they may eventually receive. In simple and legal terms, the Canadian government is intentionally failing to discharge its obligations toward First Nations with this decision. A Conservative lack of faith will cost more money in the long run and 65 First Nations have to suffer without a resolution in sight unless they agree to a one-sided deal.