ICC's Inquiry Process

As directed by Order in Council P.C. 2007-1789, the Commission is no longer accepting new claims for inquiry and has ceased all its activities on inquiries not yet at the community session stage. Work has ceased on inquiries which had not reached the community session stage on November 27, 2007, when Bill C-30, the Specific Claims Tribunal Act, was tabled. First Nations have been notified of the cessation of the ISCC’s inquiry.

Stage 1: Initial Request for Inquiry

Upon receiving a request for inquiry and accompanying documents, the Commission will consider the request, and, upon acceptance, strike a panel of Commissioners to hear the inquiry, and notify the government of Canada and the First Nation of the inquiry. Both parties will be asked to provide copies of the documents relevant to the claim. All relevant documents are organized in chronological order, compiled digitally in CD-ROM format and distributed to the parties. Commission research staff assist in identifying any gaps in the historical documents which may require supplementary research.

Stage 2: Preparation for Inquiry

The inquiry process is planned jointly. Briefing material prepared by the Commission is sent to the parties in advance to facilitate discussion. Counsel for the parties are asked to state issues to be addressed by the inquiry, from which Commission staff will attempt, in consultation with counsel for the parties, to generate a single list of issues. A planning conference, at which the parties will meet, will be arranged and chaired by Commission Counsel. Some objectives of the conference are to identify the relevant historical and legal issues; openly discuss the positions of the parties on the issues; and attempt to obtain a single set of issues to be addressed in the inquiry, failing which issues will be referred to the panel for resolution. This may be done in writing, or the panel may ask for oral submissions, to be made at the outset of a further planning conference. Except for this, the panel will not attend a planning conference. Other objectives of the planning conference are to discuss historical documents the parties intend to rely on, determine whether parties intend to call elders, community members or experts as witnesses; and set time frames for outstanding commitments and the remaining stages of the inquiry. In cases where further research is required, the Commission encourages jointly-mandated research. Unless there is a reasonable prospect of resolving the dispute at this stage of the process, the Commission's liaison staff sets dates for a staff visit to the community to inform the First Nation's membership of the process, meet with elders to obtain summaries of their evidence and make arrangements for the community session (see Stage 3).

Stage 3: Staff Visit and Community Session(s)

This is a unique and important aspect of the Commission's inquiry process. At this stage, Commissioners and staff attend a session in the First Nation's community to hear directly from elders and other members of the First Nation. The community session encourages a much greater level of participation on the part of the First Nation and is carried out in a manner that is respectful of the First Nation's language, culture and traditions. The testimony and oral tradition of the elders is recorded and transcribed. These transcripts are an important source of information used to supplement the historical documents and promote a broader understanding of the claim from the First Nation's perspective. Questions are posed by the Commissioners or their legal counsel only and no cross-examination of elders is permitted. However, counsel for the Commission consults with both parties before and during the session to identify relevant questions and lines of inquiry. In some cases, expert witnesses may present evidence in a separate session, provided they have furnished a written report in advance and the Commissioners have requested their attendance in person. Experts may be subject to cross-examination.

Stage 4: Written and Oral Submissions

With the benefit of a wealth of information from elders, community members and historical documents, legal counsel for the parties are asked to provide written and oral submissions to the Commissioners on the facts and law to assist them in determining whether the Crown owes an outstanding "lawful obligation" to the First Nation. Again, the oral submissions are recorded and transcribed to assist in the Commissioners' decision-making process.

Stage 5: Commissioners’ Final Report

Upon careful review of all the evidence – from documentary sources, oral tradition and oral history – and upon consideration of all legal arguments, the Commission panel deliberates and reports on its findings and conclusions. Ultimately, these findings and conclusions will inform the Commission's recommendation regarding the Crown's outstanding lawful obligation. The Commissioners' final report is released to the parties involved in the claim and to the public. The Commissioners' recommendations are not binding on either the First Nation or Canada, but the report is intended to assist in resolving the dispute. After releasing the final report, the Commission's inquiry comes to an end.