Tom Flanagan is a senior fellow of the Fraser Institute and a professor emeritus of political science at the University of Calgary. The Fraser Institute has recently published his report, Specific Claims and the Well-Being of First Nations.
In the jargon of Indigenous affairs, “specific claims” made by First Nations allege that the federal government has violated a treaty or the Indian Act, most often in the allocation or management of reserve lands. Typical claims are that the reserve was too small in the first place, or that land was cut off from the reserve without proper compensation.
Canada has been accepting specific claims since 1974. The process has been repeatedly rejigged to make it more favourable to First Nations, most recently by the late Jim Prentice when he was the responsible minister. The 2008 Prentice reforms included creation of a special court, the Specific Claims Tribunal, and a promise (largely kept) to set aside $250-million a year for 10 years to compensate specific claims. The Liberals campaigned in 2015 on a promise to review the process yet again in conjunction with the Assembly of First Nations (AFN).
At the end of 2017, 450 specific claims had been settled with a total federal payout of $5.7-billion (2017 dollars). That figure does not include the value of provincial contributions or of public lands transferred to reserve status. Despite these efforts to settle, the backlog of unsatisfied claims keeps growing. About 400 claims are still being investigated or negotiated, while 130 others are in some stage of litigation.
Specific claims were originally thought to be a stock of historical grievances that could be settled once and for all, but the stock has turned into a never-ending flow. Newly emergent judicial doctrines such as the honour of the Crown and fiduciary responsibility are being applied retroactively to factual situations that arose a century or more ago, when these doctrines did not exist. In effect, the specific claims process has become a perpetual motion machine.
Ironically, there is little or no evidence that these payments are making First Nations better off. The average 2011 Community Well-Being Index of those who have settled claims is exactly the same as those who have not – 59.2. More sophisticated statistical tests also show little evidence that settling specific claims leads to improvements in First Nations’ income, education, housing and employment. Nor can the settlement of specific claims claim a social-justice mandate, because the money is not going to claimants who are worse off. The First Nations who get the money are simply those who can find a set of historical facts that fits conveniently into current legal doctrines.
Canada’s specific claims process was inspired by the United States Congress, which in 1946 created the Indian Claims Commission. An essential feature of the legislation was a five-year limit for filing claims. Maybe that limit was too short; some of those claims were rushed and poorly prepared, resulting in a longer period for negotiation and litigation. But the existence of a time limit for filing reinforced the understanding that claims were a stock, not a flow. Thus the Indian Claims Commission finished its business and went out of existence in 1978.
It is time for Canada to start winding down the perpetual motion machine of specific claims. Forty-four years has been time enough for First Nations to review what happened one or two centuries ago. Parliament should amend the Specific Claims Tribunal Act to include a deadline for filing. Five years would be adequate, but maybe 10 would be more politically acceptable. The Assembly of First Nations won’t like it, but it would be a reasonable concession in light of the other promises that this government has made to Indigenous peoples. In any case, there needs to be a deadline to finally bring this process to a close.