A tribunal set up to resolve First Nations claims without a lengthy court battle is on the verge of failure, its very independence at risk, warns the judge in charge.
The Specific Claims Tribunal was announced in 2008, a joint initiative of the federal government and the Assembly of First Nations to address hundreds of unsettled claims against the Crown related to reserve lands and treaty obligations.
But the agency is understaffed and, seemingly, overlooked, Justice Harry Slade, the tribunal chairman, said in his annual report to the minister.
"The Tribunal has neither a sufficient number of members to address its present and future case load in a timely manner, if at all," Justice Slade wrote Sept. 30.
"Nor is it … assured of its ability to continue to function with adequate protection of its independence."
Justice Slade, a B.C. Supreme Court judge, said concerns have been raised with the ministers of justice and aboriginal affairs, to no avail.
Under the legislation that created the tribunal, there can be up to six full-time members to deal with the claims that are not accepted for a negotiated settlement by the government's Specific Claims branch, but Justice Slade is the only full-time member. There are also two part-time judges – one from Ontario and another from Quebec.
Justice Slade's term expires in December, 2015.
"Without the appointment of one or more full-time members in the interim there will be no ability to implement a succession plan or service the case load," he wrote. "The Tribunal will fail."
Since officially opening its doors in 2011, the tribunal has conducted nine full hearings, and issued decisions in seven cases. Two hearings took place in September, the decisions reserved.
The agency has 61 active claims – 21 in B.C., 10 in Alberta, 11 in Saskatchewan, five in Manitoba, two in Ontario, 11 in Quebec and one in New Brunswick.
The number of claims is expected to increase after a high-profile Federal Court decision last June to dismiss the federal government's judicial appeal of a tribunal decision in a claim brought by the Kitselas First Nation.
The tribunal ruled in that case that the Crown was wrong to withhold a four-hectare riverfront plot on the Skeena River, near Terrace, when it decided the boundaries of the Kitselas reserve in 1891.
The most recent claim filed in British Columbia was brought by the We Wai Kai Nation, or Cape Mudge Indian Band, in June, claiming that the Crown illegally granted part of its original reserve on Quadra Island, near Campbell River, to a private landowner in 1888.
Allan Donovan, who represents the We Wai Kai and whose firm has handled more than 40 claims both before and after the creation of the tribunal, said the situation is serious.
"There was an enormous amount of political effort in establishing the Specific Claims Tribunal," Mr. Donovan said.
It was a meaningful change from the previous system, in which the federal government itself was judge and jury of all claims, he said. It could take a decade for the old process to unfold, he said.
"But you can take what was really a meaningful reform with a lot of First Nations support and destroy it if you don't provide the proper staffing," Mr. Donovan said. "It just seems like a situation of neglect."
The tribunal declined an interview request, saying the report speaks for itself.
In it, Judge Slade also warned that a federal government decision to merge administration with 10 other federal agencies this year to save money will compromise the judicial independence of the tribunal.
Under the legislation, Aboriginal Affairs Minister Bernard Valcourt was to begin a mandatory review of tribunal operations by Oct. 16, at the latest. So far, a tribunal spokesperson said the tribunal has not been contacted about such a review.
Mr. Valcourt declined a request for an interview.
In an e-mailed statement, his office said the federal government remains committed to the fair and timely resolution of claims.
More than 115 have reached negotiated settlement since 2007, it said.
And the mandatory review is about to get under way in the coming weeks, it added.
"It would be premature to speculate about outcomes at this time," Mr. Valcourt's office said.