Courtesy First Nations Child and Family Caring Society
The Canadian Human Rights Tribunal (CHRT) has put the brakes on a landmark $20-billion settlement agreement to compensate Indigenous victims of the child welfare system, ruling it does not pass muster with the requirements the tribunal laid out.
The Final Settlement Agreement (FSA) reached by the federal government, the Assembly of First Nations (AFN), and Moushoom Class Action was meant to close the book on multiple class-action lawsuits while at once satisfying the CHRT’s compensation order.
The CHRT ruling has no direct bearing on a separate settlement agreement, also for $20 billion and announced the same day, which promises a multitude of funding streams over five years to strengthen child and family services for First Nations. Some of this money is already flowing in Kahnawake.
The October 24 ruling that some victims were cast aside in the agreement sends the government back to the negotiating table on the compensation portion, however, precipitating delays in the arrival of this money.
“It’s disappointing,” said Marc Miller, minister of crown-Indigenous relations. “I think it’s disappointing first and foremost for a group of children that absolutely do deserve to be compensated. We have had some disagreements with the Canadian Human Rights Tribunal.”
The tribunal had previously determined in the case led by the First Nations Child and Family Caring Society (FNCFCS) that the government racially-discriminated against First Nations children by underfunding First Nations Child and Family Services (FNCFS) on reserve.
The tribunal found this failure incentivized the removal of Indigenous children from their homes as a “first resort rather than as a last resort.” In tearing apart families and severing children from their communities, the practice echoes a long history of colonial violence in this country.
The CHRT ruled in 2019 that each victim is entitled to $40,000 in compensation, the maximum the tribunal can order. While the FSA, announced December 31, 2021, pledged money in excess of this amount to some victims, the tribunal said others were shortchanged or left out, even as it acknowledged the agreement sought to enlarge the total number of victims covered.
Despite the ruling, the CHRT noted in a letter outlining the decision that the FSA represents “important steps forward” and describes the agreement as First Nations-led.
“What I do think is disappointing is this is something that has frankly taken a lot of time to put together that does reflect the spirit in which we are asked to work with Indigenous communities, which is a nation-to-nation basis, directly with rights holders,” Miller said.
While the government needs time to study the ruling, according to Miller, he suggested Canada’s next steps will be determined in collaboration with settlement partners.
Miller said the government will not waver in its commitment to compensate victims and overhaul the child welfare system.
“No one’s quitting here and no one’s giving up on Indigenous children,” he said.
Miller could not say whether the Canadian government is prepared to pay compensation in excess of $20 billion, which he noted would have been the largest class-action settlement in Canadian history and one of the largest in the world.
“That’s a question that, given the numbers and given the number of people involved, there’s a little uncertainty in and around,” he said.
The Indigenous advocacy groups driving the push for systemic change and compensation weighed in quickly on the decision.
“AFN legal counsel must now consider whether there is a path towards amending or adapting the FSA in a manner that is satisfactory of the CHRT’s orders or seek an alternative legal recourse,” said a press release from the AFN.
The organization pledged to work with the government’s lawyers on this point.
“The AFN will keep fighting to ensure First Nations children and families receive compensation and is cognizant of impacts of the delays on the First Nations victims of Canada’s discrimination who now must wait longer for compensation for the discrimination they experienced.”
Cindy Blackstock, executive director of the FNCFCS, had called on the CHRT to require that the compensation agreement be renegotiated.
“The Caring Society stands with those left behind, no matter how unpopular that makes us, because it is our privilege and our duty to do so,” Blackstock said in a statement last month.
The FNCFCS has released a statement acknowledging the significance of the FSA but outlining its support of the CHRT’s decision to reject it pending changes.
“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,” it reads. “We are ready to assist Canada and the class action parties in doing so.”
Miller could not guarantee funding for the other $20 billion settlement would not be indirectly impacted by the tribunal’s ruling.
“That’s work as a government that we’ll have to continue working on. I wouldn’t say it’s entirely unaffected by this judgment, but we hope that to the best of our ability it remains unaffected,” he said.