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Turner Drake & Partners Ltd.
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# Thursday, 13 December 2018


Specific Claims are launched by a First Nation band against the Government of Canada for historic grievances, typically over issues like unfulfilled treaty obligations, loss of reserve lands and mishandled First Nation funds. The most common cases that cross our desk involve the sale of reserve lands by the government of the day without the Band’s consent, either because it was never surrendered by them or because it was invalidly surrendered.

The events are always historic and quite often pre-date Confederation – a time when settlers were actively seeking to establish themselves in the new world and the government of the day was eagerly trying to accommodate them through grants and leases of land.  And sometimes that happened to be unsurrendered reserve land.

Those readers with a penchant for all things historical will find interesting reading on the origins of these claims by researching King George III’s “Proclamation of 1763”, issued in those turbulent times of squabbling between the French and the British. It imposed a fiduciary duty of care on the Crown which endures to this day, and is enshrined in the Constitution Act of 1982.  Heady stuff.

Our involvement in these files begins when the historical research has been done and the claim has been accepted by the government for negotiation. The stage is then set for negotiations to begin over the amount of compensation that the FN should receive from the Government of Canada.

The structure within which these negotiations take place is laid out in federal government guidelines. The first, released in 1982, set out the policy on specific claims and established guidelines for the assessment of claims and negotiations. These were tweaked under successive governments but the fundamentals remain the same.  They can currently be found in the document entitled “Specific Claims Policy and Process Guide”, available online and currently (still) under review.

We have been actively engaged on claim files in the Maritime provinces since the company began over 40 years ago – impressive, but a mere blink of the eye within the context of the time periods actually covered by these types of claims. Our involvement occurs in one of two ways.

1.       As an independent Consultant, hired under a joint terms of reference to calculate the ingredients of the claim, which then forms the platform for negotiations between the parties.

2.       As a Technical Expert on behalf of the First Nation, advising their negotiation and legal team on the technical aspects of the claim, ensuring that the process follows the guidelines and that the FN receives the compensation it is due.

We have represented (or continue to represent in currently active claims) over half a dozen First Nations throughout NS and NB, usually in the role of Technical Expert.

The structure of a claim is set out in the guideline and usually there are two components, calculated separately but intrinsically linked through the historical record.

(1) Current Unimproved Market Value - Where a claimant band can establish that certain of its reserve lands were never lawfully surrendered, or otherwise taken under legal authority, the band shall be compensated either by the return of the lands or by the current unimproved value of the lands. A relatively straight forward process…..

(2) Historical Loss of Use - Compensation will include an amount based on the loss of use of the lands in question, where it can be established that the claimants did in fact suffer such a loss. This can include losses from timber, agriculture, minerals and aggregates, fishing rights, land rental losses and a myriad of other components.  A far from simple process, often involving experts from different fields … and forests. The claim clock begins when the lands where first taken – usually 100 years or more in the past.

The process is not a quick one. Reconstructing historical events – and placing a value on them - takes time and diligence.  This is no splash-and-dash appraisal job.  And rightly so because there is much at stake here. Claims typically run into the millions of dollars and the calculations behind them must withstand robust scrutiny by both sides.  The cost of righting past wrongs does not come cheaply – or quickly.


Lee Weatherby is the Vice President of our Counselling Division. If you'd like more information about our counselling services, feel free to contact Lee at (902) 429-1811 or lweatherby@turnerdrake.com
Thursday, 13 December 2018 10:43:20 (Atlantic Standard Time, UTC-04:00)  #    -
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