New York Times
January 4, 2022
By Catherine Porter and Vjosa Isai
[Photo above: Cindy Woodhouse, the Manitoba regional chief at the Assembly of First Nations. Screen capture from video. Amber Bracken for The New York Times]
The government agreed to a landmark settlement to repair the system and compensate those families harmed by it. It potentially ends many years of litigation.
The Canadian government announced Tuesday that it had reached what it called the largest settlement in Canada’s history, paying $31.5 billion to fix the nation’s discriminatory child welfare system and compensate the Indigenous people harmed by it.
The agreement in principle forms the basis for a final settlement of several lawsuits brought by First Nations groups against the Canadian government. Of the overall settlement, 40 billion in Canadian dollars, half will go toward compensating both children who were unnecessarily removed, and their families and caregivers, over the past three decades.
The rest of the money will go toward repairing the child welfare system for First Nations children — who are statistically far more likely to be removed from their families — over the next five years to ensure families are able to stay together.
“First Nations from across Canada have had to work very hard for this day to provide redress for monumental wrongs against First Nation children, wrongs fueled by an inherently biased system,” said Cindy Woodhouse, the Manitoba regional chief at the Assembly of First Nations, the largest Indigenous organization in Canada.
“This wasn’t and isn’t about parenting. It’s in fact about poverty,” she said at a news conference, adding that more than 200,000 children and Indigenous families are affected by the agreement.
The deal is an acknowledgment that the child welfare system was better resourced to remove children than to support them in place. The system was the product of discriminatory policies put in place and enforced over generations against Indigenous communities.
Of those eligible for compensation, experts hired during the litigation have estimated that 115,000 children were separated from their families since 1991, said Robert Kugler, a lawyer who represented First Nations complainants on two different lawsuits, during the news conference.
While less than 8 percent of children under 14 in Canada are Indigenous, they make up more than 52 percent of those in foster care, according to 2016 census data.
The case was first brought to the Canadian Human Rights Tribunal back in 2007, by the First Nations Child and Family Caring Society, a child welfare advocacy group, and the country’s largest Indigenous organization, the Assembly of First Nations.
They claimed First Nations children on reserves and in one northern territory were discriminated against, because the government didn’t fund their child welfare and family support services at the same rate as it did for non-Indigenous children. By 2004, reports showed there were three times the numbers of First Nations children in state care than during the height of residential schools, when Indigenous children were forcibly removed from their families.
The Canadian Human Rights Tribunal, a quasi-judicial federal body that adjucates complaints of discrimination, concurred, and ruled in 2016 that the government must reform its child and family services programs for First Nations. This included changes to the formula used to calculate funding allocations for government services on reserves, according to the tribunal decision.
But the federal government stalled, repeatedly appealing to have the case dismissed on technical grounds and failing to implement meaningful change. Over the past five years, the federal tribunal has issued around 20 noncompliance orders, according to one lawyer with the First Nations Child and Family Caring Society.
In the meantime, other First Nations groups filed class action lawsuits against the government on similar grounds.
“Canada could have settled this case for hundreds of millions of dollars back in 2000, when we raised the alarm that First Nations kids were getting 70 cents on the dollar compared to other kids,” said Cindy Blackstock, the executive director of the organization that initiated the case and a professor of social work at McGill University in Montreal.
“But Canada chose not to do that,” Ms. Blackstock added. “And now we are into the tens of billions of dollars and most importantly, children have lost their lives and sometimes their childhoods in the process.”
In November, the respected Indigenous judge and former senator Murray Sinclair was enlisted to help negotiate a settlement out of court.
“This is the largest settlement in Canadian history,” said Marc Miller, Canada’s minister of crown-Indigenous relations, at a news conference in Ottawa on Tuesday. “But no amount of money can reverse the harms experienced by First Nations children.”
The precise settlement terms for compensation and future child welfare reforms are still being negotiated, the government wrote in a statement, though funding to help youth who are aging out of the child care system will be distributed as early as the spring.
Prime Minister Justin Trudeau’s political opponents criticized his government’s tactics in the child welfare lawsuit during last summer’s federal election campaign. Jagmeet Singh, leader of the New Democratic Party, characterized the legal battle as Mr. Trudeau’s government “taking Indigenous kids to court.”
Canada has been grappling with its colonial legacy since 2015, when the country’s Truth and Reconciliation Commission deemed that the historic removal of Indigenous children from their families over a century, when they were sent to residential schools, amounted to “cultural genocide.” The commission issued dozens of calls to action, the first of which was to reduce the number of Indigenous children in state care.
An estimated 150,000 Indigenous children attended the boarding schools, the last of which closed in 1996, where hundreds died. Many were physically and sexually abused.
Tuesday’s settlement is the second multi-billion-dollar compensation agreement with Indigenous communities to be announced by the federal government in recent weeks. In December, the Federal Court of Canada approved a $6.3 billion lawsuit against the government over years of contaminated drinking water on Indigenous reserves.