Children, families harmed by on-reserve child welfare system can now apply for compensation

First Nations people harmed by Canada's underfunding of on-reserve child welfare services can now apply for compensation, as the claims process officially opens in a $23.4-billion class-action settlement.

Starting Monday, people removed from their homes on reserve or in the Yukon and placed in care funded by Indigenous Services Canada between April 1, 1991, and March 31, 2022, are eligible to make claims, and so are their caregiving parents and grandparents.

An estimated 140,000 people are already eligible, even though the claims process is only partially open, said class counsel David Sterns, a partner at Sotos LLP and member of the settlement implementation committee. The figure highlights both the system's widespread impact and the enormous administrative task that lies ahead.

"There's been a lot of anticipation around the the distribution, so we expect that there will be a surge," Sterns said.

"We're hopeful that there will be enough resources and enough claims helpers."

Claimants have three years to apply once they reach the age of majority, and because some class members could be as young as three years old right now, Sterns expects the claims process will go on for about another 18 years. 

The case has already been a long journey for Karen Osachoff Brown and Melissa Walterson, two of the lead plaintiffs. They're sisters, but they grew up unaware of each other's existence. Their family bond was severed by the child welfare system, and they only began the reconnecting process in adulthood — after the class action was filed in 2019. 

"If it wasn't for the system that Canada put in place, we would have grown up as sisters together, and not be meeting each other four years ago," said Walterson, representative plaintiff for the removed child family class.

"It's terrible what Canada did to our people."

The case has been difficult and retraumatizing already, they said, but it also brought a measure of healing and justice. For them, the opening of the claims process brings optimism and hope as well as concern for others' well-being.

"What I want to tell the other claimants is it's going to be hard and difficult to go through," said Osachoff Brown, representative plaintiff for the removed child class.

"You may or may not relive your trauma, and if you do, please reach out for help. You're not alone, and we're all in this together."

The settlement traces back to a human rights complaint filed by the Assembly of First Nations and the First Nations Child and Family Caring Society in 2007, alleging the chronic underfunding of child and family services amounted to systemic racial discrimination.

The Canadian Human Rights Tribunal upheld the complaint in 2016, finding that federal funding practices created a perverse financial incentive for child welfare agencies to separate Indigenous kids from their families. This modern system took more kids into state custody than the residential school system did at its apex.

In an interview on Friday, AFN National Chief Cindy Woodhouse Nepinak called the settlement an important acknowledgement of the harm First Nations suffered at the hands of a racist system.

"I'm sorry for what you went through," said Woodhouse Nepinak when asked for her message to claimants. She noted the harm includes trauma, disconnection and cultural loss.

"My heart is with them and this country owes them an apology."

Prime Minister Justin Trudeau last year outlined a plan to apologize for Canada's discriminatory conduct, and following his resignation Woodhouse Nepinak still expects a successor to deliver on that commitment.

Class 'vulnerability' recognized

Meanwhile, both she and Sterns repeatedly stressed the need to avoid retraumatizing people as much as possible during the claims process.

"Everyone realizes the vulnerability of the class. Everyone wants to make sure that this is a success and this helps people move on," said Sterns.

The 2006 residential schools settlement attracted criticism for allowing unscrupulous lawyers to exploit survivors, prompting an Ontario judge in 2016 to recognize that some lawyers "disgraced themselves and the legal profession by further victimizing their Aboriginal clients in a variety of ways."

The day schools settlement also had its problems. Some survivors reported filing for the lowest available amount of compensation, only to learn later that they may have qualified for considerably more money. The courts dismissed their bid to reopen claims.

Sterns said preventing confusion, fraud and exploitation is top of mind. He said the current claims process is straightforward and user friendly, with no need for outside lawyers since the settlement includes claims helpers.

Under strict court-imposed rules, outside lawyers will have to advise potential clients that resources are already available for free, and if counsel is still retained, the court must approve any fees as reasonable in light of the little work expected to be involved.

Claims can be submitted through the settlement website or contact the claims administrator Deloitte at 1-833-852-0755.