Ottawa to begin 'intense' talks to rewrite First Nations child welfare compensation deal

Ottawa will attempt to renegotiate its $20-billion compensation package for people affected by the First Nations child welfare system, court records say.

Federal officials are expected to begin “intense confidential discussions” on Feb. 7 and 8 to re-work the $20-billion compensation agreement that was rejected last fall by the Canadian Human Rights Tribunal, according to a letter filed in Federal Court.

The Trudeau government is trying to save the multi-billion dollar agreement it struck with the Assembly of First Nations last year. The deal was supposed to compensate First Nations children and their families for chronic underfunding of the on-reserve child welfare system and other family services.

“I’m hopeful, but I’m also mindful that the prime minister originally said he would compensate these children back in 2019,” said Cindy Blackstock, the First Nations children’s advocate who initiated the case 16 years ago.

“Yet not one penny of compensation has gone out the door. So a promise to pay is not a payment.”

Blackstock, executive director of the First Nations Child and Family Caring Society, will be part of the negotiations with the government. She’ll be joined by AFN representatives and class action lawyers who attempted to resolve two lawsuits with the $20-billion offer.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, will be at the negotiating table with the federal government in February. (Justin Tang/The Canadian Press)

The agreement included two parts: $20 billion in compensation and another $20 billion for long-term reform of the on-reserve child welfare system.

The compensation portion required the agreement of the Canadian Human Rights Tribunal (CHRT) before it could be sent to Federal Court for final approval.

In 2016, the CHRT ruled Ottawa’s on-reserve child-welfare system and its health care delivery discriminated against First Nations children. In 2019, it ordered Canada to pay the maximum penalty under the Canadian Human Rights Act: $40,000 in compensation for every affected child and caregiver.

Under the $20-billion agreement, 300,000 First Nations people were eligible for compensation.

The CHRT rejected the deal last fall, saying it shortchanged some victims and excluded others who are entitled to compensation. It also accused the government and the AFN of misleading the public by not disclosing the fact that their $20-billion child welfare compensation deal left out some victims and reduced payments for others.

Can the deal be salvaged?

The offices of Indigenous Services Minister Patty Hajdu and Crown-Indigenous Relations Minister Marc Miller told CBC News in a joint statement that the government vows to follow through on compensation.

“This is a historic, First Nations-led $20-billion agreement, and we’ll continue to work together with the parties to deliver compensation to those who are entitled to it,” the statement said.

So far, the government hasn’t committed to putting more money on the table and is focused on distributing the $20 billion.

In its reasons for rejecting the agreement, the CHRT advised the government to put its $20 billion into an interest-earning trust for victims. Blackstock said that’s the proper approach.

“We’re going to build on the good parts of that final settlement agreement, but make it better by making sure that no one sees their compensation go away or be reduced,” she said.

“They can put more money on the table.”

indigenous child government 20220104 — AFN Regional Chief Cindy Woodhouse, left, and Indigenous Services Minister Patty Hajdu, centre, listen to Crown-Indigenous Relations Minister Marc Miller during a January 2022 news conference in Ottawa, where the federal government shared early details of its $40 billion agreement for First Nations child welfare. (Adrian Wyld/The Canadian Press)

Blackstock told CBC News she wants Ottawa to provide more comprehensive support for First Nations children, which could include help with housing, food, mental health and employment.

She’s also urging the government to hire a team of archivists and genealogists, with proper cultural support, to help children and families locate their personal records.

The parties are supposed to report back to Federal Court on the status of talks by Feb. 10.

In the meantime, the federal government is still seeking a judicial review of the CHRT’s decision rejecting the initial $20-billion deal and its 2019 compensation order.

The AFN is also appealing the CHRT’s fall 2022 decision since it questioned the organization’s authority, but has put its judicial review on hold while talks resume.