Cindy Blackstock asks Human Rights Tribunal to renegotiate $20B child welfare compensation deal

An Indigenous children's rights advocate — whose 15-year battle with Ottawa led to a historic $40 billion settlement agreement over discrimination in the First Nations foster care system — is asking the Canadian Human Rights Tribunal to send the compensation deal back to the drawing board.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, said the agreement negotiated between the federal government and the Assembly of First Nations fails to meet the reparation standard laid out by the tribunal ruling upon which the deal is based.

"It denies or provides a lesser value of compensation to some victims who have experienced the worst-case scenario of discrimination and creates significant uncertainty for other victims," Blackstock wrote in an affidavit filed to the tribunal on Aug. 30.

The settlement sets aside $20 billion for reparations and $20 billion for long-term reform.

The tribunal is holding two days of virtual hearings on Thursday and Friday to decide whether the $20 billion package satisfies its order for Canada to compensate First Nations children and their families for discrimination before the matter heads to the Federal Court for final approval.

Blackstock told CBC News the Caring Society, which was not part of the AFN and Ottawa's compensation negotiations, acknowledges $20 billion is a lot of money.

But since the sum is fixed, it's not assured that every complainant will receive a minimum of $40,000, as ordered by the tribunal.

This, Blackstock said, undermines the human rights order.

"My concern is that the prime minister said no one who is entitled to [$40,000] would get less and that's not the case," she told CBC News.

"It makes me feel disappointed."

Estates of deceased parents left out

In a joint statement, the offices of Indigenous Services Minister Patty Hajdu and Crown-Indigenous Relations Minister Marc Miller said every First Nations child who was forcibly removed from their homes and put into the on-reserve child welfare system will get a minimum of $40,000 — or more, depending on the severity of harms they experienced. 

But the details of the agreement are still being worked out, the statement said. 

"While no amount of compensation can make up for the grief and trauma that the actions of the Government of Canada caused to First Nations children and families, this final settlement agreement is an important step forward to acknowledging the harm done and an important step forward in healing," the statement said.

The settlement leaves out the estate of Jordan River Anderson's mother, Virginia Ballantyne, whose son died in 2005 at the age of five during a bureaucratic battle between Manitoba and Ottawa over who should pay for his care.

That's because it cuts out the estates of parents who died before submitting a compensation claim.

"That is heartbreaking, really, because that family has been so generous and Jordan's mom only passed away about six months after Jordan did," Blackstock said.

"It's sad to see her being left out and people like her … That seems to me to be a graphic injustice."

The estate of the late Maurina Beadle — a mother from Pictou Landing First Nation in Nova Scotia who won a court case against Ottawa to have her son Jeremy Meawasige receive treatment under Jordan's Principle — wouldn't receive any money either.

The estates of Meawasige and Anderson, however, would be compensated.

$40K not guaranteed for each claimant

In 2007, the House of Commons adopted a policy bearing Anderson's name — Jordan's Principle — to guarantee that First Nations children receive essential services, such as health care, before jurisdictional disputes over payments are sorted out.

The tribunal ordered Canada to pay $40,000 to each First Nations child — along with their parents or grandparents — who were forced to leave their homes to access services or were denied services under Jordan's Principle. 

But since it's not clear how many Jordan's Principle claimants will come forward, the settlement can't guarantee $40,000 to everyone under this class, according to an analysis included as an exhibit with Blackstock's affidavit. 

The deal makes a compromise for parents of removed children. In situations where more than one child was removed, they would receive a maximum of $60,000 — not $40,000 per child, as ordered by the tribunal.

It also excludes a category of removed children from compensation — those who were placed with family arrangements — Blackstock said.

Under the agreement, claimants have until Feb. 2023 to opt out of compensation and litigate on their own. If they don't, they won't be able to take their own legal action.

Timmins–James Bay NDP MP Charlie Angus is calling on the government to renegotiate the deal so that everyone receives the full amount of compensation ordered by the tribunal.

"They are not respecting the ruling of the human rights tribunal," Angus said. "You can't just ignore laws and legal decisions that go against you."

In a statement to CBC News, the AFN defended the agreement.

"The AFN is working hard to ensure that the process is in place for all eligible victims to be compensated as quickly as possible," said Manitoba Regional Chief Cindy Woodhouse.

"We will walk hand in hand with First Nations throughout this process."

Ottawa to drop appeal — if settlement is approved

In January 2022, the AFN and the federal government announced a $40 billion settlement agreement to cover the cost of settling a Canadian Human Rights Tribunal order, two class action lawsuits and long-term reform of the Indigenous child welfare system over a five-year period.

The deal came after an intense legal battle that started in 2007 when Blackstock filed a human rights complaint with the Assembly of First Nations against Canada.

In 2016, the tribunal found Ottawa discriminated against First Nations children and said Canada's actions led to "trauma and harm to the highest degree, causing pain and suffering."

In 2019, it ordered the federal government to pay $40,000 — the maximum allowed under the Canadian Human Rights Act — to each child affected by the on-reserve child welfare system, along with their primary guardians, as long as the children weren't taken into foster care because of abuse.

It also directed the government to pay the same amount for breaches to Jordan's Principle.

Ottawa appealed the Federal Court decision that upheld that order.

Now, the offices of Hajdu and Miller say the government will drop its appeal — if the settlement is approved.

"Canada will not continue to pursue the appeal (of the Federal Court's decision on the Canadian Human Rights Tribunal's compensation decision) once the CHRT declares that its order on compensation has been satisfied, and the Federal Court approves the final settlement agreement," the statement said.