First Nations child-welfare talks yield 'substantial progress' toward amended settlement

The Canadian government and the Assembly of First Nations are reporting "substantial progress" toward revising a proposed $20-billion settlement package for victims of the chronically underfunded on-reserve child-welfare system, court records say.

All parties in the ongoing class-action lawsuit "have agreed on a path to an amended FSA [final settlement agreement]" following two days of confidential talks in Ottawa last week, says a letter filed Friday in Federal Court.

The amended deal remains subject to conditions and must still be drafted, wrote David Sterns, a lawyer with the class-action division of Sotos LLP, who requested more time to iron out the details.

"We will endeavour to address the conditions and finalize drafting over the next few weeks," wrote Sterns.

When contacted Monday, he said confidentiality prevented him from offering more details. 

A spokesperson for Indigenous Services Minister Patty Hajdu similarly wouldn't expand on the contents of the amended deal but reiterated a pledge to compensate those who were harmed.

"We are committed to seeing this through," wrote communications director Andrew MacKendrick. 

First announced early last year, the deal became mired in uncertainty when the Canadian Human Rights Tribunal proceeded to reject it.

The lawsuit was filed in 2019 by Xavier Moushoom, an Anishinaabe man from Lac-Simon, Que., but it covers nearly identical ground as a long-standing human rights complaint against Canada before the tribunal.

Deadline to opt out pushed back

The AFN and Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, filed the complaint in 2007. The AFN joined the Moushoom class action in 2020.

Blackstock, who was at the table last week, has pressed for an extension of the class action's "opt-out deadline," which is when potential claimants can decide not to be included in the settlement. The parties agreed to push that back from Feb. 19 to August, says Sterns's letter.

"The extension of the opt out is important as children and families who are eligible for compensation need to see what they are entitled to under any revised FSA," Blackstock said by text Monday. 

"It is impossible to make that decision as the FSA is still in progress."

Manitoba Regional Chief Cindy Woodhouse was not available for comment Monday on behalf of the AFN.

The human rights tribunal, a quasi-judicial body created by federal human rights law, sided with Blackstock and the AFN in 2016. It found Canada's underfunding of child and family services on reserves and in the Yukon constituted illegal racial discrimination.

In 2019, the tribunal found the discrimination was "wilful and reckless" and awarded the statutory maximum of $40,000 to each victim and some family members. But Canada refuses to pay that order, which was upheld in Federal Court, a decision Ottawa appealed.

The federal Liberals promised instead to usher in an umbrella settlement through the class action, but the tribunal said that agreement excluded and short-changed some children eligible for compensation under the 2019 order.

In December written reasons, the tribunal ruled Hajdu and the AFN misled the public by not disclosing this. The AFN and Hajdu both filed court challenges against the tribunal decision, but those cases have not been litigated.

Meanwhile, also in December, the AFN brought the issue to its chiefs assembly in Ottawa for debate. There, the chiefs adopted a unified front and instructed the AFN to demand Ottawa immediately pay a "minimum of $20 billion" and ensure no one is left out.

The parties are asking the court for permission to report back on their progress by March 1.