Ottawa says its latest move doesn’t mean compensation will be blocked from flowing to children and families harmed by Canada’s discriminatory on-reserve child welfare system.

Toronto Star: OTTAWA—For Cindy Blackstock, the federal government’s move to seek a judicial review of a Canadian Human Rights Tribunal ruling that rejected part of a First Nations child welfare agreement is yet another roadblock to achieving reconciliation.

“It’s to me contrary to reconciliation to, on the one hand, make representations that you are going to do something and you’ve learned from the past and you’re not going to perpetrate injustice, and then … in your court violence, do something that’s in direct opposition to that,” Blackstock, the executive director of the First Nations Child and Family Caring Society, told the Star.

Blackstock has been working to secure justice for those harmed by Canada’s on-reserve child welfare system since 2007, when the Caring Society and the Assembly of First Nations (AFN) first filed a complaint to the Canadian Human Rights Commission alleging systemic discrimination against Indigenous children and their families.

In 2016, the tribunal ruled that Ottawa had discriminated against First Nations kids on reserves by failing to provide the chronically underfunded system with the same resources as welfare services elsewhere in Canada. In 2019, the rights tribunal ordered the federal government to pay $40,000 to thousands of affected children and their families. 

Last year, the Federal Court rejected Ottawa’s appeals of that ruling, in which the federal government argued the tribunal had overreached in issuing its order.

But in January, details were announced for a plan to end the lengthy legal battle in the form of a “historic” $40-billion funding package. Half of that amount would go toward compensating children and their caregivers, with the other $20 billion going toward longer-term improvements to child and family services on First Nations. 

There was a cautious sense of optimism at the time that the move signalled the government’s intent to shift away from litigation. That has fizzled, Blackstock said, now that Ottawa has sought a review of the tribunal’s decision that the settlement agreement isn’t completely satisfactory.

“I was disappointed. I mean, this is the government that said that they did not want to litigate against First Nations children anymore,” she said.

The judicial review stems from an October ruling from the tribunal, which found that the $20-billion compensation package didn’t include First Nations children taken from their homes and placed with other community members. Also excluded are the estates of deceased caregivers in cases where the caregiver was unable to submit a compensation application before passing away. 

The tribunal also said some caregiving parents and grandparents would receive less compensation than they are owed, along with some children and their families who didn’t receive essential services because different levels of government could not agree on who should pay for those services.

The tribunal found that while the deal — known as the final settlement agreement (FSA) — “substantially” met its previous orders, it could not fully satisfy them due to the omissions. It concluded it did not have the “legal basis” to grant amendments or changes requested by Ottawa and the AFN, because that would “disentitle certain victims/survivors from compensation under the tribunal’s orders.”

But does this mean efforts to compensate all victims are now at a standstill? 

Not entirely, Ottawa says. “Some of the money can still flow. We’re working right now with the parties to plan how to flow that money, the compensation for the agreed-upon classes that we all agreed needed to flow as soon as possible. That work will continue,” Indigenous Services Minister Patty Hajdu told the Star. 

However, Hajdu said there was no “precise” timeline for when that would occur, in part because the FSA still needs to go before the Federal Court.

Hajdu and the government have argued the tribunal’s October ruling, which was released without its full reasons, requires more clarity.

In its filing seeking a review, the government said, among other reasons, that it wants to see the court set aside the tribunal’s determination “that it could not amend its previous orders in light of the agreement.”

“This is really about trying to understand in more detail what happens when a negotiated settlement of such a historic proportion, led by First Nations people, is rejected by the tribunal,” said Hajdu, who one day earlier told reporters that “money” was not the reason behind the appeal.

If it’s not about the money, “then pay it,” Blackstock said. “If you look at their notice of application … nowhere in here does it say ‘more clarity.’”

Ottawa is not the only party to seek a judicial review; on Wednesday, the AFN indicated it also plans to seek a review. 

“We believe that the judicial review will overturn the October CHRT (Canadian Human Rights Tribunal) decision and enable the $20 billion in compensation that we negotiated to flow more quickly to more people. We will also continue to press Canada to examine all options to get compensation flowing to children and families regardless of what is happening through these legal processes,” AFN Regional Chief Cindy Woodhouse said to the Star. 

Woodhouse, the AFN’s lead negotiator with the government, said the organization is now reviewing Ottawa’s appeal and the CHRT’s ruling, with the goal of discussing the matter at a Special Chiefs Assembly next month.