Our Approach

Gordon S. Campbell, B.A., LL.B., B.C.L. leads the Firm’s Specific, Comprehensive and Special Claims legal practice. He has served as lead negotiator of Indigenous-Crown Specific and Comprehensive Claims throughout Canada, and contributed to the establishment of the Specific Claims Tribunal. He is assisted by other lawyers, paralegals and law clerks of the Firm.

The Firm has extensive experience successfully negotiating Specific, Comprehensive and Special Claims, especially in Manitoba, Northern and North-Western Ontario. The Firm understands the internal operations of Crown-Indigenous Relations and Northern Affairs Canada, as well as engagement with both the provincial and federal Crowns, which get negotiations’ results.

Top 5 Reasons Specific, Comprehensive & Special Negotiations Fail

1. Studying the Claim to Death - expert consultant studies are key to successfully negotiating the resolution of any claim, however endless commissioned new studies year after year after year, hoping that yet more studies will miraculously reveal the magic settlement number that everyone will agree upon is simply avoiding the hard reality that terminating negotations involving each side name hard numbers, rather than hoping third parties will solve their reticence in naming numbers.

2. Being Afraid to Name Numbers - every successful negotiation needs to first build relationships among negotiators prior to getting down to the hard bargaining, but sometimes the relationship-building stage of negotiations remains THE negotiation, with everyone being afraid to be the first to name a number, for fear of offending the other side, or revealing too much about their negotiation position. While “interest-based” as opposed to “position-based” negotiations tend to be promoted by the Crown, ultimately every First Nation will want to maximize their outcomes from every negotiation, with having their greatest number of interests met as possible, in the highest possible way.

3. Thinking There is No Deadline - Crown-Indigenous negotiations should never be rushed. They take time for the issues and solutions to be studied, time for the parties to understand the issues and solutions, and time for the parties to consult with their members or superiors to get final instructions on how to solve the issues through solutions agreed upon at the negotiations table. However, keeping everyone waiting for a human generation for negotiations to conclude is not good strategy, rather it’s torture. Torture of all those whose rights have been denied for so long, and who deserve in their lifetime a resolution to and compensation for those rights denials. Or at least finality that resolution isn’t possible.

4. Assuming That Those Around the Table Think the Same as Those Who Will Approve a Deal - It’s the role of negotiators at a negotiations table to get to the stage of a “handshake” deal, where they’ve agreed in principle on all the key terms of a deal, based upon their respective instructions, in the hopes that their members (for First Nations) or Ministers (for the Crown) will ratify the terms. Occasionally, they can be dead wrong. While there is no way to completely prevent ratification failure on either Crown or First Nation side, negotiators need to keep an eye on the opinions of those who will ultimately need to approve deal prior to finalizing any handshake to minimize risks of ratification failure.

5. Failing to Be Creative on Settlement Terms - while much of claim negotiations is about money as a “proxy” for what was lost, which can be hard to monetarily quantify at the best of times, regardless of the type of claim, other things beyond money can be negotiated which may have great symbolic value which could get the parties “unstuck” from digging in on too high versus too low of respective monetary settlement numbers.

Our Winning Approach to Specific, Comprehensive & Special Claims

Rather than being focused on the “interest-based” negotiations model pushed by the Crown, or more traditional positional negotiations that view everything as a fixed sum pie where negotiations are all about walking away with the largest slice of pie possible, we stress a “Results-Focused” Negotiations Approach (RFNA). RFNA focuses on actually getting deals for First Nations which maximize First Nation outcomes.

RFNA doesn’t study claims to death (though studies will usually be necessary), isn’t afraid to name numbers (though such numbers need to be well informed by data), does impose deadlines (aiming for years rather than decades to do a deal), does keep taking the pulse of the members who will be voting on any final settlement agreement (though only an actually ratification vote will prove where all the membership truly stands), and gets creative to get a deal to the finish line.

The First Nation Advocates’ Results-Focussed Negotiations Approach ensures that there will never be negotiations for the sake of negotiations, that Crown-First Nation meetings will be results-focussed, and that First Nations will receive negotiated settlements in years - not decades - whenever a deal that maximizes First Nation outcomes is available.

Occasionally, a dual litigate-negotiate track approach might be needed as part of the RFNA, where it is litigation that can best unstick very stuck negotiations. That is what happened in Soutwind v. Canada, 2021 SCC 28, where the First Nation spent decades in a research and negotiations Specific Claims process attempting to reach a negotiated settlement for a flooding claim, leading to only very modest settlement number offers, prior to switching to a litigation strategy where the Supreme Court of Canada overturned the damages calculation methodology of the trial judge as being inadequate but still itself refusing to name a number, sending the case back for yet more negotiations, which because of the SCC push finally yielded a far more satisfactory settlement number for the First Nation.