Tribunal says Ottawa’s deal leaves some children out, short-changes others

CBC: A key part of a $40 billion dollar First Nations child welfare agreement described as “historic” by the federal government could unravel following a ruling Tuesday by the Canadian Human Rights Tribunal.

The tribunal rejected Ottawa’s $20 billion offer to compensate First Nations children and families harmed by the discriminatory on-reserve child welfare system.

It said the deal did not meet its criteria because it left some children out and did not guarantee the $40,000 in compensation for each child and caregiver ordered by the human rights body in a landmark ruling.

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“The Tribunal never envisioned disentitling the victims who have already been recognized before the Tribunal through evidence-based findings in previous rulings,” the decision said.

• The tribunal said the federal government’s cap of $20 billion for compensation would leave out some victims covered by the ruling. 
• The tribunal said First Nations children removed from their homes and placed in non-federally funded placements are excluded from the final settlement agreement, along with the estates of deceased caregiving parents and grandparents. 
• It also said that some parents and grandparents would get less than the $40,000 it ordered, along with some children and caregivers denied essential services under a policy known as Jordan’s Principle.

‘Untenable situation’

The tribunal also took issue with the short time frame for victims to opt out of the final settlement agreement. 

Under the agreement, claimants have until February 2023 to opt out of compensation and litigate on their own. If they don’t, they won’t be able to take their own legal action.

“Such an opt-out scheme would place victims who are receiving less than their CHRT (Canadian Human Rights Tribunal) entitlement of $40,000 in an untenable situation whereby they either accept reduced entitlements under the FSA [final settlement agreement] or opt-out of the FSA to be left to litigate against Canada from scratch,” the decision said.

For Ashley Bach, who was apprehended shortly after birth, the decision left her grappling with worry.

“I’m quite worried about all the youth who were expecting to receive compensation,” said Bach, who is a representative plaintiff for the removed child class in the Assembly of First Nations’ (AFN) lawsuit against Ottawa

“It is a lot emotionally.”

The federal government announced in January it had reached a $40 billion agreement with the AFN to settle two class action lawsuits. The government said it met the terms of the human rights tribunal’s ruling.

The agreement set aside $20 billion for individual compensation and $20 billion for long-term reform of the on-reserve child welfare system.

Now, the federal government’s plan to finalize the $40 billion deal by the end of the year could be derailed unless it can address the tribunal’s concerns.

Indigenous Services minister says ruling ‘disappointing’

At a press conference in Winnipeg on Thursday, the AFN’s lead negotiator said she was “deeply frustrated.”

“It’s a sad day for the many First Nations families learning today that their long wait for compensation and acknowledgement is going to continue,” said AFN Manitoba Regional Chief Cindy Woodhouse. “I don’t know when or if compensation will flow to these kids and families at this stage.”

Indigenous Services Minister Patty Hajdu said the government wants to make the $40 billion agreement work. “It is, 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,” Hajdu said.

“There’s a continued commitment to First Nations to make sure that we satisfy both aspects of these historic agreements.”

NDP MP Charlie Angus said the federal government must comply with the tribunal’s orders. “This government must respect their obligation to pay compensation to the children who have been put at risk through the wilful and deliberate negligence of this government,” Angus said.

The agreement needed the approval of the Canadian Human Rights Tribunal, which ruled Ottawa’s on-reserve child-welfare system and its health care delivery discriminated against First Nations children. The tribunal ordered $40,000 in compensation to affected children and caregivers.

The federal government lost a challenge of the tribunal’s order before the Federal Court and paused a subsequent appeal pending the approval of a settlement agreement.

With the tribunal’s rejection, it appears Ottawa is headed back to court, continuing a legal battle it has waged since the First Nations Family and Caring Society — with the support of the AFN — filed its human rights complaint in 2007.

The First Nations child welfare settlement agreement between Ottawa and AFN is the largest in Canadian history.

It covers children and families on-reserve or in the Yukon who were discriminated against from 1991 on — a period 15 years longer than the one covered by the tribunal’s orders.

Under the agreement, every First Nations child who was forcibly removed from their home and put into the on-reserve child welfare system would get a minimum of $40,000 — or more, depending on the severity of harms they experienced.

Blackstock argued federal deal excluded children

Cindy Blackstock, executive director of the Caring Society, asked the tribunal to send the deal back to the negotiating table because it short-changed compensation for some and gave nothing at all to others covered by the tribunal’s ruling.

She told CBC News that nothing in the tribunal’s ruling stops the government from continuing its $20 billion overhaul of the on-reserve child welfare system.  “We support the final settlement agreement, but we don’t want any kid or any family member who was hurt so badly by Canada left behind,” Blackstock said.

“It might cost Canada more … But what Canadians need to know [is] that’s only there because Canada hurt so many children.”

Blackstock, who was not part of the compensation negotiations between the AFN and Ottawa, said the agreement leaves out children who were not in federally-funded child welfare placements.

But the federal government and the AFN disagreed and argued that only children placed in federally-funded placements are eligible for compensation under the tribunal’s orders.

“Any compromises that were made by the AFN were carefully considered, negotiated and discussed,” wrote AFN general counsel Stuart Wuttke in an Oct. 21 letter sent to the tribunal. “To subject these victims to ongoing delays, and the outright risk to the payment of compensation more generally due to appellate intervention, would be an injustice.”

In 2016, the tribunal found Ottawa discriminated against First Nations children and said Canada’s actions led to “trauma and harm to the highest.”

In 2019, the tribunal ordered Canada to pay the maximum penalty under the Canadian Human Rights Act — $40,000 to each First Nations child and caregiver affected by the on-reserve foster care system and their parents or grandparents, as long as the children weren’t taken into care because of abuse.

It also ordered Canada to pay $40,000 to each child and caregiver denied essential services under a policy known as Jordan’s Principle.

Instead of paying compensation in the way the orders are worded, the government negotiated a deal with the Assembly of First Nations, which was suing Ottawa for $10 billion to compensate a group of children and families not covered by the tribunal’s orders.

In January 2022, the AFN and the federal government announced a $40 billion settlement agreement to cover the cost of settling a Canadian Human Rights Tribunal order, two class action lawsuits and long-term reform of the Indigenous child welfare system over a five-year period.