Canada reaches $31.5 billion deal over Indigenous children put in foster care unnecessarily

TORONTO — Canadian officials said Tuesday they have reached $31.5 billion in agreements in principle with Indigenous groups to compensate First Nations children who were unnecessarily taken from their homes and put into the child welfare system, a major development in a dispute that has long been a sticking point in Ottawa’s efforts to advance reconciliation with Indigenous people.

Under the agreements, half of the money would go to children and families harmed by an underfunded and discriminatory child welfare system on First Nations reserves and in the Yukon, while the rest would be earmarked over five years for long-term reforms, the Indigenous services ministry said in a statement.

Final details are to be settled between the government and Indigenous advocates over the coming months. The final agreement between the government and Indigenous advocates will be presented to a federal court for review.

The dispute, which includes a human rights complaint and several class-action lawsuits, has spanned nearly 15 years and several federal governments. Prime Minister Justin Trudeau, who came to power in 2015 vowing to put reconciliation with Indigenous people at the core of his agenda, has drawn criticism for his handling of it.

“This is the largest settlement in Canadian history, but no amount of money can reverse the harms experienced by First Nations children,” Marc Miller, Canada’s Crown-Indigenous relations minister, told reporters at a news conference in Ottawa. “Historic injustices require historic reparations.”

Cindy Woodhouse, the Manitoba regional chief for the Assembly of First Nations, said the agreements were “a long time coming.”

“First Nations from across Canada have had to work very hard for this day to provide redress for monumental wrongs against First Nations children,” she told reporters. “Wrongs fueled by an inherently biased system.”

The dispute dates to 2007, when several Indigenous advocacy groups claimed in a human rights complaint that the federal government’s “inequitable and insufficient” funding of child welfare services on First Nations reserves was discriminatory.

In 2016, the Canadian Human Rights Tribunal agreed with the advocates. Panel stated that the funding formula of the federal government was founded on “flawed assumptions” about the children being cared for. This led to a system which incentivized First Nations children from returning home and their culture.

“It is only because of their race and/or national or ethnic origin that they suffer the adverse impacts,” the tribunal said in its decision. “Furthermore, these adverse impacts perpetuate the historical disadvantage and trauma suffered by Aboriginal people.”

In 2019, the tribunal ordered the federal government to pay about $31,000 to each child unnecessarily removed from their home since 2006 through “willful and reckless” discrimination. The tribunal also stated that grandparents and parents could be eligible for compensation.

Trudeau’s government sought a judicial review of the ruling and drew criticism for “fighting Indigenous kids in court.” Canada’s federal court dismissed the government’s application in September.

The government appealed that decision but said it had “paused” the appeal while it engaged in efforts to reach an out-of-court settlement with the groups instead. Canada’s justice minister David Lametti stated Tuesday that the government will drop its appeal “once a final settlement is reached.”

The agreements in principle would compensate First Nations children on reserves and in the Yukon who were removed from their homes between April 1, 1991, and March 31, 2022, as well as their caregivers. The agreement would compensate Indigenous children who were denied government services. This policy is known as Jordan’s principle. It states that Indigenous children should be paid for their services regardless of whether they are covered under the jurisdiction.

The funding set aside for long-term reforms would include money to help support children aging out of the child welfare system, for on-reserve housing and for preventive measures that would keep families together. Advocates claim that Indigenous children are often removed from their homes due to poverty and not abuse. They need help.

Robert Kugler, a lawyers representing some class-action plaintiffs, said more than 200,000 Indigenous children could be eligible for compensation under the agreements.

The talks were led by Murray Sinclair, the former senator who chaired the Truth and Reconciliation Commission that investigated residential schools.

Canada’s mistreatment of Indigenous people and the intergenerational trauma stemming from its colonial policies drew renewed attention last year when several Indigenous communities said ground-penetrating radar had uncovered evidence of hundreds of unmarked graves on or near the sites of former residential schools.

Beginning in the 19th century, about 150,000 Indigenous children were separated from their families — often forcibly — and sent to the government-funded, mostly church-run schools, which operated with the aim of assimilating Indigenous children. The last government-funded school closed in 1997.

A Truth and Reconciliation Commission said in a 2015 report that many children suffered physical, sexual and psychological abuse at the institutions, which punished them for speaking their languages and practicing their traditions in what it said amounted to “cultural genocide.”

The commission documented the deaths of thousands of children at the school but said the figure was probably an undercount, in part because record-keeping was shoddy. Malnutrition and diseases spread quickly in cramped quarters. Escape attempts were also common. Some were buried in unmarked graves.

The federal government apologized for residential schools in 2008. Trudeau has vowed to implement all of the commission’s 94 calls to action, including one to reduce the disproportionate number of Indigenous children in the child welfare system — a situation that a cabinet minister once described as a “humanitarian crisis.”

About 7 percent of children in Canada are Indigenous, but they make up more than 52 percent of children in foster care, according to 2016 census data. Advocates claim that child welfare is a modernized residential school system.

In 2019, Trudeau’s government passed a law that sought to affirm and recognize the rights of Indigenous groups to have jurisdiction over child and family care services in their communities. Last year, the Cowesses First Nation of Saskatchewan signed the first agreement under this law with the federal government. The First Nation has the right to decide whether or not children are taken from their families and child welfare services.

The deal announced Tuesday comes several weeks after Canadian courts approved an agreement between the federal government and Indigenous groups to settle class-action lawsuits to compensate First Nations people lacking clean and reliable drinking water on reserves.

Cindy Blackstock, executive director of the First Nations Child and Caring Society of Canada, one of the advocacy groups that filed the initial human rights complaint, said that while the case shows that “public pressure can work,” the agreements in principle are “simply words on paper. “

“Canada could have settled this case for hundreds of millions of dollars back in 2000, when we raised the alarm that … families were being separated unnecessarily,” Blackstock said. Canada refused to do this. And now we’re into the tens of billions of dollars, and most importantly, children have lost their lives and sometimes their childhoods in the process.”

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