The Canadian government likely owes Indigenous people almost $76 billion for currently filed land claims and lawsuits, recent official reporting says — a sum that’s nearly seven times greater today than when Justin Trudeau became prime minister.
In 2015, Ottawa counted $11 billion in “contingent liabilities,” which are potential legal obligations recorded only in cases where the probability of future payment is considered “likely,” according to the 2023 public accounts of Canada.
This year’s fall economic statement showed the vast majority of these liabilities — 95 per cent — stem from Indigenous claims against the Crown.
It’s a spike the non-partisan parliamentary budget officer, who provides lawmakers with spending analysis, calls disconcerting.
“It is very, very significant,” said Yves Giroux.
“It’s a bit surprising to see these being multiplied by seven.”
From the Liberal government’s perspective, the increase means progress, according to Crown-Indigenous Relations Minister Gary Anandasangaree.
“I’m not surprised by it,” he said.
“It is, I think, a part of the reconciliation process that we’ve undertaken. We have been consistent in ensuring that past harms are resolved.”
The NDP’s Indigenous Services critic disagrees.
“It means that Canada is still implementing its genocidal policies,” Nunavut MP Lori Idlout said.
“And it means that Indigenous Peoples are not putting up with it anymore.”
The scope of Canada’s legal struggles with Indigenous people is revealed further in the public accounts and government statistics provided to CBC Indigenous.
The data show the two Indigenous-governing ministries spent a combined $89.8 million on lawyers last fiscal year, and currently face 1,152 open lawsuits. There were 136 cases resolved between 2014 and now.
Government-wide liabilities now total more than $2 trillion, but this includes claims and debts where the possibility of future payment is unlikely or unknowable, the accounts say.
Looking at the numbers, Idlout points to the persistent poverty, overlapping social crises and acute infrastructure deficit Indigenous people continue to grapple with. She predicts the Liberals will find only more trouble unless they change paths — and fast.
“If they don’t, they’re going to continue to be sued,” Idlout said.
“That, to me, is abundantly clear.”
Budget officer concerned
Giroux flagged the growth in contingent liabilities to lawmakers last month in a November analytical report.
“It is a bit concerning that they have increased so much,” he told the Senate finance committee on Nov. 22.
“It raises the question as to how firmly in control is the government with respect to these claims.”
Contingent liabilities are recorded when lawyers assess a claim and conclude the Crown is at least 70 per cent likely to lose in court and it has a dollar value on it, Giroux told CBC Indigenous.
And so the $76 billion represents not what Indigenous people may be owed for all grievances, but Ottawa’s best guess at how much the Crown stands to lose through existing, credible specific claims, comprehensive land claims and lawsuits.
Parliamentary Budget Officer Yves Giroux tells the senate finance committee about money potentially owed to Indigenous people in Canada for currently filed land claims and lawsuits.
Giroux wonders if shifts in these legal assessments, an influx of new lawsuits or the possibility the bureaucracy has a poor grasp on existing ones explains the increase.
“You would think that, with successive governments having improved their relationship with Indigenous people, that the liabilities would have stopped growing at one point,” he said.
Fix the problem instead of fighting, says Blackstock
Anandasangaree said the government “absolutely” has a grip on the claims and is righting historic wrongs through negotiation and reform.
First Nations child advocate Cindy Blackstock said the government will continue stacking up legal bills and be held liable for ever-greater sums of cash if it chooses to deny, stall and fight.
“When a credible report comes forward and it shows that there’s an injustice, their first reaction should be to fix the problem, instead of fighting the victims,” said Blackstock, executive director of the First Nations Child and Family Caring Society.
That was her experience after she and the Assembly of First Nations filed a human rights complaint over the underfunding of on-reserve child and family services in 2007.
After years of court battles, they secured a multibillion-dollar compensation order in 2019, which was later upheld in court, and Canada eventually agreed to a landmark $23.4-billion class-action settlement approved this year.
Blackstock said the discriminatory underfunding was reported internally 23 years ago, when the cost of fixing the shortfall was estimated at hundreds of millions of dollars.
She said the Canadian government will cost itself more in the end if it handles other allegations of discrimination — amid more proposed class actions popping up — the same way.
“Had they done the right thing back in 2000, they wouldn’t have had to pay the $23.4 billion in compensation,” Blackstock said.
“And children wouldn’t have lost their childhoods.”