After calling it historic, Canada’s multi-billion dollar child welfare deal reached with the Assembly of First Nations [AFN] is on hold after the Canadian Human Rights Tribunal [CHRT] refused to approve it.
According to tribunal chair Sophie Marchildon and panel member Edward Lustig, the AFN and Canada requested the tribunal “amend its compensation orders,” to fit the terms of the final settlement agreement or FSA that was reached between the two sides.
In its summary ruling released Tuesday, the tribunal said the CHRT can’t amend its compensation order.
“The Panel does not believe it has a legal basis for granting the amendments requested by the AFN and Canada or for finding that the FSA fully satisfies the Tribunal’s compensation orders,” said the tribunal in a release Tuesday.
“Granting the requested orders would disentitle certain victims/survivors from compensation under the Tribunal’s orders.
The tribunal said a final ruling would be issued at a later date.
On December 31, 2021, the federal government announced it reached a $40-billion settlement with the AFN in two separate class action lawsuits against Canada dealing with child welfare.
The deal came in two parts – $20 billion for compensation and the other $20 billion going to long-term reforms of the system. The CHRT’s ruling only deals with the compensation part of the deal.
It was anticipated the deal would satisfy the tribunal’s 2016 ruling that found Canada guilty of “willfully and recklessly” discriminating against First Nations children involved in the child welfare system on reserve.
In 2019, the tribunal ordered Canada to pay victims, and some extended family members, $40,000 each in compensation.
But while the deal the AFN and Canada reached would, in some cases, increase compensation to some victims, it may leave others out.
“Denying entitlements once recognized in orders is an unfair and unjust outcome that the Tribunal cannot endorse,” said Marchildon and Lustig in the ruling.
“The Tribunal decisions provide compensation for children removed from their homes, families and communities as a result of the FNCFS (First Nations Child and Family Services) Program’s discrimination. The FSA narrows it into removed children who were also placed in ISC (Indigenous Services Canada) funded care.”
Watch Cindy Blackstock’s reaction:
According to Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, one of the original complainants in the discrimination case against Canada, the fixed amount of $20 billion may not be enough to compensate everyone who is entitled to the money.
She said the FSA exempts children who weren’t in federally funded child welfare placements.
“The Caring Society recognizes that the FSA is an important agreement that provides additional compensation to some victims,” said Blackstock in a statement on Tuesday. “We fully support this very important goal.
“We call on Canada to adopt the Tribunal’s ruling and take up its clear suggestions to fix the FSA to ensure all victims get the human rights compensation and supports they are legally entitled to as soon as possible.”
Families waiting for compensation
The AFN and Canada are, not surprisingly, disappointed with the ruling from the tribunal. The AFN was one of the original parties that filed a discrimination complaint against the federal government alongside Blackstock in 2007. It took another nine years of hearings and delays by the government to get a ruling and longer to get the compensation order.
Now, the AFN said, victims of the system will have to wait longer.
“The final settlement agreement was approved internally through the delegated authority of the AFN Executive Committee as upheld by the Charter,” said Cindy Woodhouse, AFN regional chief for Manitoba, in a statement. “More than 300,000 children and families have been waiting for this settlement agreement to be approved by the Canadian Human Rights Tribunal. It’s a sad day for the many First Nations families learning today that their long wait for compensation and acknowledgment continues.
“For now, we only have the decision from the Tribunal – we are awaiting the full reasoning from the Panel to determine our next steps.”
Final settlement agreement reached in $20B First Nations child welfare class action
Patty Hajdu, minister of Indigenous Services met with media late Tuesday afternoon, alongside Marc Miller, minister of Crown-Indigenous Relations and Justice Minister David Lametti.
“The CHRT summary decision recognizes the historic nature of the $40-billion agreement and that’s a good place to start, however, I think, disappointing to many First Nations people that a First Nations-led, Indigenous-designed approach hasn’t been accepted as complete by the CHRT,” said Hajdu. “There are a number of folks, I’m sure, around the country—First Nations individuals—that are, you know, wondering and worrying about when compensation might be due.
“And certainly, from our perspective, obviously, we’re going to continue to work with First Nations partners and review the detailed findings of the CHRT and move forward.
Justice Minister David Lametti said the government will continue working with the AFN, FNCFCS and Nishnawbe Aski Nation in Ontario, which had intervenor status, and wait until the final decision from the CHRT is released before deciding on whether to challenge the ruling in federal court.
“We have to go back with our partners and see what the final decision is, and see where we can move from there, but certainly there’s no decision on anything today,” said Lametti.
But according to the FNCFCS, the deal Canada and the AFN struck eliminates a number of children and families from the tribunal’s compensation order.
“The Compensation FSA excludes First Nations children who were removed from their homes, families, and communities, but placed into non-federally funded placements,” said a statement posted on the organization’s website on Sept. 14. “Regardless of the placement, the removal of a child from their family and home is inherently harmful and could in many cases have been avoided through least disruptive measures (prevention services).
“The discrimination in question stems from the fact that children were removed from their homes because Canada underfunded prevention services. Whether a child was in a federally funded placement or not does not determine whether or not he or she was harmed by Canada’s discrimination.”
According to the tribunal, while the current deal, signed July 4, 2022, would “expedite” compensation to victims who are listed in the FSA, future court actions would delay the money being distributed, “therefore, there is a risk of providing a false hope to those entitled to compensation under the FSA about the timeframe in which they would receive compensation.”
The federal government is still compelled to compensate victims of the First Nations child welfare system, and some extended family $40,000 each.
Editor’s Note: This story originally said the tribunal turned down the $40 billion deal. In fact, it’s the compensation part – $20 billion – that was turned down. We apologize for the error. This story was updated on Oct. 26.