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Canada to seek judicial review of tribunal ruling on child welfare deal

November 23, 2022

APTN News: Indigenous Services Canada: The minister of Indigenous Services Canada (ISC)says Canada will seek a judicial review of a ruling from the Canadian Human Rights Tribunal (CHRT) that refused to endorse a $20-billion deal that was reached with the Assembly of First Nations (AFN).

The money in the Final Settlement Agreement, or FSA, was to compensate thousands of children and their families caught up in the child welfare system that the CHRT said was “reckless and wilful” discrimination against them.

Calling the deal “historic,” ISC Minister Patty Hajdu said the request for judicial review won’t stop the work from continuing.

“We’ll be continuing to work with the parties to compensate children that were removed and harmed, but also today filed a judicial review to have the court look at some of the aspects of the settlement agreement that were not accepted by, by the CHRT,” she said.

“The clarity that the review will provide will give us an indication on how to move forward in those areas.”

In 2016, the CHRT ruled that Canada discriminated against First Nations children and their families. Three years later, it issued a compensation ruling that ordered Canada to pay $40,000 to each child and family for the discrimination.

On Dec. 31, 2021, the federal government announced it reached a $40-billion settlement with the AFN in two separate class action lawsuits against Canada dealing with child welfare.

The deal came in two parts – $20 billion for compensation and the other $20 billion going to long-term reforms of the system.

But the CHRT had to approve the agreement – and on Oct. 25 CHRT chair Sophie Marchildon and tribunal member Edward Lustig ruled that no, the deal can’t go ahead as written.

They ruled that the AFN and Canada requested the tribunal “amend its compensation orders,” to fit the terms of the final settlement agreement.

The summary ruling said the CHRT can’t amend its compensation order and that “granting the requested orders would disentitle certain victims/survivors from compensation under the Tribunal’s orders.”

The CHRT’s ruling only deals with the compensation part of the deal.

According to Cindy Woodhouse, regional chief of the Assembly of First Nations who was involved in brokering the deal, said that

“One thing that is really clear, is that I think everybody knows that these kids and their families and their parents, the children affected by Jordan’s Principle and their families, all these people, 300,000 people that are waiting for compensation, we need to get that money out to them as quickly as possible because they’ve been waiting for far too long,” she said.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society led the complaint at the tribunal against the government more than a dozen years ago.

She was not involved in the negotiations between the federal government and AFN. When the deal was brought in front of the tribunal – she argued against it saying it doesn’t comply with the CHRT’s 2019 orders.

“I’m disappointed,” she said. “Canada now has three legal orders to pay these children and adult victims the compensation and they’re choosing to litigate.”

Sad to see the litigation continuing – Canada should pay victims the compensation they have already won and ensure there are supports- particularly for children

— Cindy Blackstock (@cblackst) November 24, 2022

According to Blackstock, the fixed amount of $20 billion may not be enough to compensate everyone who is entitled to the money.

For instance, she said the FSA exempts children who weren’t in federally funded child welfare placements.

“The Caring Society recognizes that the FSA is an important agreement that provides additional compensation to some victims,” said Blackstock said in October after the CHRT’s ruling. “We fully support this very important goal.

“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.”