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Canada, Assembly of First Nations agree on $40B package for discrimination in child welfare

Federal and Indigenous leaders announced a $40 billion settlement to compensate First Nations children and families for discriminatory child welfare policies Jan. 4.
Indigenous Services Minister Marc Miller speaks to media at the Frobisher Inn in Iqaluit, Nunavut, on Friday, July 23, 2021. On Jan. 4, he said historical injustices warranted a historic settlement. THE CANADIAN PRESS/Emma Tranter photo

Federal and Indigenous leaders announced a $40 billion settlement to compensate First Nations children and families for discriminatory child welfare policies Jan. 4.

The settlement includes $20 billion in compensation for discriminatory funding practices of the federal First Nations Child and Family Services (FNCFS) program and its narrow implementation of Jordan’s Principle on equitable service access, as well as $19.807 billion to reform FNCFS over five years.

“This is the largest settlement in Canadian history, but no amount of money can reverse the harms experienced by First Nations children,” said Crown-Indigenous Relations Minister Marc Miller in a news conference in Ottawa. “Historic injustices require historic reparations.”

The package was part of two agreements-in-principle reached on Dec. 31, 2021 between the federal government and the Assembly of First Nations (AFN), following more than a year of negotiations.

The settlement is rooted in a complaint filed with the Canadian Human Rights Tribunal (CHRT) by the AFN and the First Nations Child and Family Caring Society in 2007, relating to the provision of on-reserve services.

In a decision issued in 2016, the tribunal found that First Nations children faced discrimination through welfare services, and ordered Ottawa to pay $40,000 to each child affected by the on-reserve welfare system. The federal government had appealed a court order on the compensation.

David Sterns, a lawyer with Sotos LLP, which handled a class action lawsuit by the AFN in 2020 alleging discrimination by the federal government, told media that the compensation will apply to three main groups: First Nations children living on-reserve and in the Yukon and who were taken from their homes and placed in state care from 1991 to the present; First Nations children living on or off-reserve who were deprived of essential services from 1991 to 2017 due to the government’s failure to respect Jordan’s Principle; and some caregivers of those children.

Affected children and families will also be entitled to $40,000 in compensation, an amount that Indigenous Services Minister Patty Hajdu said is the “floor” and some people could receive additional amounts.

“Indigenous families have been affected by a system that has been cruel and discriminatory,” she said. “$40,000 is not enough to make someone whole but it certainly is a step in the right direction of acknowledging the harm that’s been experienced by individuals.”

Hajdu added that she hopes the settlement is a lesson Canada will learn “once and for all” that racism isn’t just extremely painful to people and communities experiencing it but costly to the federal government.

Jane Weyallon Armstrong, MLA for Monfwi said the agreement is good and it shows the federal government recognizes the truth of its policies is coming out.

“They’re admitting that what they did was wrong,” she said.

Armstrong explained that she knows of some older people in the NWT whose grandchildren were taken away from them by child services and even some who died before they could see them again.

“They were talking about it forever when their grandkids were in care. But the system said ‘no’ to them. This (agreement) can right some of the wrongs that were done.”

Robert Kugler, also from Sotos LLP, said the settlement could affect as many as 215,000 people, with the sub-class of children removed from their homes coming to about 115,000 and another 100,000 included in the Jordan’s Principle sub-class.

AFN Manitoba Regional Chief Cindy Woodhouse, who also spoke at the conference, said the settlement is the result of years of advocacy by First Nations people.

“Since we launched the case before the CHRT over a decade ago, and prior, the AFN has pressed the federal government to provide redress for monumental wrongs against First Nations children, wrongs fuelled by an inherently biased system,” she said.

Woodhouse added that discriminatory funding and other decisions have led to a huge over-apprehension of First Nations children into the child welfare system across Canada.

“If there are problems or issues, you shouldn’t just rip our family apart. We need to work through those issues towards making sure that our families stay intact in our communities,” she said.

The compensation is also an acknowledgement that First Nations children were apprehended from their parents and communities and suffered abuse, loss of language and culture, and loss of connection to their families and homelands.

The CHRT still has to finalize the agreement, and details of the final settlement are expected to be ironed out in negotiations in the coming months, Hajdu said, though she added the process could take up to one year.

Justice Minister David Lametti said the federal government intends to drop its earlier appeal of the CHRT decision on compensation once a final agreement is reached.

Dene Nation Chief Gerald Antoine was travelling Dec. 4 and unavailable for comment, according to a spokesperson.

The Canadian flag flies at half mast over the Peace tower and parliament buildings Friday, Oct. 22, 2021. THE CANADIAN PRESS/Adrian Wyld photo
Manitoba regional chief for the Assembly of First Nations, Cindy Woodhouse, speaks during a national press conference announcing an agreement between the federal government and the AFN and other Indigenous entities in regard to child welfare discrimination and compensation Jan. 4. CPAC screengrab