Stop the specific claims perpetual motion machine

“Specific claims” by First Nations allege that Canada has violated treaties or the Indian Act. Most such claims relate to the administration of reserve lands. Following the earlier example of the United States, Canada started accepting specific claims in 1974. By the end of 2017, Canada had settled 450 specific claims for a total of $4.7 billion (2017 dollars). The chronological pattern is shown in the figure below.

The original assumption was there was a finite number of historical grievances that could be settled, and then we could move on; but specific claims have proven to be more a flow than a stock. 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. First Nations’ lawyers are using newly emergent legal doctrines, such as the honour of the Crown and fiduciary responsibility, to re-examine decisions made one or even two centuries ago, when no one had thought of such doctrines. Specific claims have become a perpetual motion machine.

This might be acceptable if the expenditure of money was helping to bring the well-being of First Nations up to Canadian norms. Yet the statistical evidence says otherwise. The average 2011 Community Well-Being Index of First Nations that have received a settlement was exactly the same as those that have not—59.2. More sophisticated statistical tests also show little or no evidence of positive impact.

Large amounts of money are being spent with no discernable benefit. That should not be surprising, because the specific claims process is retrospective. Economic and social progress comes from seizing future opportunities, not from preoccupation with past grievances.

The original American legislation contained a five-year deadline for filing claims, and as a result the Americans finished with their Indian Claims Commission long ago. It is time for Canadian legislation to move in a similar direction. First Nations have had more than enough time—44 years—to examine the past in a search for mal-administration of reserve lands. Parliament should set a deadline of, say, five or even ten years for filing new claims, and then move on to confront the difficult issues of the future.