Ottawa in talks to settle First Nations child welfare class action lawsuit

Ottawa says it has started talks to settle a $6 billion proposed class action lawsuit filed earlier this year on behalf of First Nations children affected by the on-reserve child welfare system.

The proposed class action was filed in March with the Federal Court on behalf of First Nations children affected by on-reserve child welfare services between April 1, 1991, and March 1, 2019.

The lawsuit is separate from the Canadian Human Rights Tribunal Ruling that ordered Ottawa to compensate First Nations children affected by the on-reserve child welfare system since Jan. 1, 2006.

Indigenous Services Canada (ISC) said in a statement Friday that settlement talks were in the preliminary stages.

"We are at the early stages of the certification process and we are involved in exploratory discussions with the parties, which are confidential," said the statement from ISC, which is the lead department on the file.

David Sterns, a partner with Toronto-based Sotos LLP, one of three law firms bringing forward the lawsuit, confirmed talks have started.

"We are having exploratory settlement discussions," he said. "We are in the very early stage."

Sterns also said that Ottawa has indicated it plans to fight certification of the lawsuit. Sterns said he is now waiting for the federal government to file its legal paperwork outlining its opposition, which is expected in the coming month.

"We are in full litigation mode and we are ready to do battle with the government," said Sterns.

Contacted by CBC News, ISC did not say whether it plans to contest the certification.

A certification hearing is still months away, he said.

The statement of claim alleges that Ottawa knew for years about "severe inadequacies" in its on-reserve First Nations child welfare funding formulas, policies and practices, but did nothing.

The proposed class action lawsuit was amended recently to increase the compensation sought to $6 billion from $3 billion.

Jordan's Principle plaintiff

The proposed class action is also seeking compensation for First Nations children who "suffered or died" while waiting for help from services Ottawa was legally required to provide that would be covered by the policy known as Jordan's Principle.

According to Jordan's Principle, the needs of a First Nations child should always be placed ahead of jurisdictional disputes over funding for health care and other public services.

The amended statement of claim also added a new plaintiff: Jeremy Meawasige from Pictou Landing First Nation in Nova Scotia, as a representative of the Jordan's Principle class.

Meawasige was born in 1994 with cerebral palsy, spinal curvature and autism. 

His mother, Maurina Beadle, was his primary caregiver until she suffered a stroke in 2010. The Pictou Landing band council stepped in to provide assistance but the funding from Ottawa was not adequate.

The band council then applied for more funding, citing Jordan's Principle, but Ottawa refused. The council and Beadle went to the Federal Court, which ruled in 2013 that the federal government would have to pay for Meawasige's services in accordance with Jordan's Principle. 

"While Mr. Meawasige received funding for certain services after the Federal Court's 2013 decision, he has not received some other essential public services and products to this date," said the amended statement of claim.

The original plaintiff, Xavier Moushoom, is an Algonquin man from the Lac Simon Anishnabe Nation, Que. He was shuffled through 14 foster homes between the ages of nine and 18.

Minister's conversation recorded

Sterns said the tribunal compensation order and the class action lawsuit are two separate issues. 

He said receiving compensation from the tribunal order — which is governed by the Human Rights Act — would not prevent anyone from also getting compensation through a settlement of the class action.

The federal government applied for a judicial review in October with the Federal Court to quash the tribunal's order, arguing that the human rights body overreached in its compensation decision. Ottawa says in court filings the tribunal's compensation order could cost the government up to $8 billion.

While the federal government is fighting to quash the tribunal compensation order, it has signalled it wants a class action-type settlement process to offer compensation to those affected by the on-reserve child welfare system.

During the election campaign, Prime Minister Justin Trudeau said he was in favour of child welfare compensation.

Crown-Indigenous Relations Minister Carolyn Bennett said in an Oct. 11 recorded conversation with Nipissing First Nation Chief Scott McLeod that Ottawa wants to compensate First Nations children affected by the child welfare system  from 1991 to today — which is essentially the time frame outlined by the proposed class action.

"We want to be at the table as soon as possible and get this thing sorted," said Bennett, according to a transcript of the conversation filed in Federal Court as part of the separate litigation around the human rights tribunal ruling.

The transcript was attached to an affidavit filed by Cindy Blackstock, who heads the First Nations Child and Family Caring Society. The society and the Assembly of First Nations filed a human rights complaint against Ottawa in 2007.

Bennett also echoed an argument advanced by federal lawyers in court filings that the tribunal compensation order — which said each apprehended child should receive $40,000 — was unfair.

"They can only just give $40,000 to everybody, but that meant if somebody had been in care for a week, or somebody had been in 10 homes, abused all that time, that person ends up feeling that isn't fair and continues to be harmed in terms of re-traumatized," said Bennett, according to the transcript.

During the recorded conversation, Bennett also referred to the Sixties Scoop and Indian Day School class action settlements finalized in the Liberal government's previous term.