The federal government announced a $40 billion agreement to reform the Indigenous child welfare system and compensate victims last January, but now Canadian Human Rights Tribunal has ruled that the government’s offer of $20 billion to First Nations children and families did not go far enough, putting the agreement in jeopardy.
The original agreement was reached between the First Nations Child and Family Caring Society (FNCFCS), the Assembly of First Nations (AFN), lawyers for several class actions, and the federal government.
The agreement set aside up to $20 billion for First Nations children removed from their homes between 1991 and 2022, and for children who were excluded from receiving essential public services between 1991 and 2017 – each receiving $40,000. A further $20 billion was earmarked for reforming the on-reserve child welfare system.
The AFN estimated that more than 200,000 children and youth and their families could be eligible for compensation, which would represent an $80 billion payout if all claimants were accepted. The Canadian Human Rights Tribunal rejected the agreement because it would leave some children out and did not guarantee a $40,000 payment for everyone affected.
“The Tribunal never envisioned disentitling the victims who have already been recognized before the Tribunal through evidence-based findings in previous rulings,” according to the ruling made October 25.
Those left out included children removed from their homes but taken to non-federally funded placements, and the families of parents and caregivers who had passed away.
The tribunal also said that the time frame for victims to opt out, by February 23, 2023, was too short. Those who opt out would be able to sue the government independently. The tribunal had originally ruled in 2019 that the federal government was responsible for compensating children and families who did not receive properly funded child welfare services on-reserve.
“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,” AFN Manitoba Regional Chief Cindy Woodhouse said in a statement. “I don’t know when or if compensation will flow to these kids and families at this stage.”
This means that the government will return to court to continue the legal saga that began in 2007, when the FNCFCS and the AFN first filed a human rights complaint over discrimination in the Indigenous child welfare system.
FNCFCS Executive Director Cindy Blackstock pushed for the agreement to be renegotiated because it excluded many victims. As Blackstock told the CBC, “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 was not part of the negotiation agreement between the AFN and the federal government. The AFN sided with the federal government, arguing in the tribunal that only children placed in federally funded placements were eligible for compensation.
However, Blackstock said the recent ruling wouldn’t prevent Ottawa from providing the $20 billion to reform the child welfare system on-reserve.
Indigenous Services Indigenous Services Patty Hajdu said the ruling is disappointing for many First Nations waiting for a final resolution, and she didn’t rule out challenging the ruling in Federal Court.