Ottawa, AFN file court challenges on tribunal's decision to reject $20B child-welfare deal

The federal government and the Assembly of First Nations will seek judicial review of the Canadian Human Rights Tribunal's decision rejecting Ottawa's $20-billion offer to settle a class-action lawsuit over the chronic underfunding of the on-reserve child welfare system.

Indigenous Services Minister Patty Hajdu and Crown-Indigenous Relations Minister Marc Miller told reporters Wednesday afternoon in Ottawa the Liberals want "clarity" on how to address the parts of the deal the tribunal rejected.

"We'll be continuing to work with the parties to compensate children that were removed and harmed, but also today filed a judicial review to have the court look at some of the aspects of the settlement agreement that were not accepted," Hajdu said.

"We do have some disagreements over some elements of the judgment, and, for that reason, we are filing an appeal," added Miller.

The AFN also has issues with the tribunal's decision, which led the advocacy organization to file a court challenge of its own, Manitoba Regional Chief Cindy Woodhouse told a virtual news conference following the federal announcement.

"The AFN will also seek a judicial review to ensure the rights of our children and families are fully respected in this process and that they receive the compensation that's due to them," Woodhouse said.

"We will also continue to press Canada to examine all options including seeking a negotiated resolution to get compensation flowing."

Last week, Woodhouse told CBC News the AFN hadn't "ruled out anything" when asked if the assembly was mulling a court challenge, while the government refused to say what their plans were.

The class-action settlement, announced in January and signed in June, pledged to compensate victims of the discriminatory First Nations child-welfare system, but the entire pact was "conditional" on the tribunal declaring a pre-existing compensation order from 2019 fulfilled.

Tribunal rejected settlement in October

In an Oct. 24 letter decision, the tribunal said the proposed settlement substantially covered its standing order, but refused to declare it fulfilled because some children included by its compensation ruling would be left out of the class-action settlement.

Anyone directly affected by a federal tribunal order or decision can challenge that decision through judicial review "within 30 days after the time the decision or order was first communicated," according to Canada's Federal Court.

The letter is only a summary and not the tribunal's formal written decision, so the AFN felt it needed to protect its rights while awaiting the full reasons, Woodhouse said.

"We're looking forward to the full decision, and in the meantime we're safeguarding ourselves."

The case dates to 2007 when the AFN and Cindy Blackstock filed a human rights complaint with the Canadian Human Rights Commission. In a landmark 2016 decision, the tribunal found Canada's funding practices were racist and constituted systematic human rights violations, a decision which was never challenged.

The tribunal said this racial discrimination was "wilful and reckless" in 2019 when it issued an order for Canada to pay the statutory maximum of $40,000 to each victim and certain family members, which was judicially reviewed last year.

Canada lost that review, and Blackstock, reached by phone following the announcement, said Canada should have complied and paid the victims.

"The tribunal made a final order on compensation. That was upheld by the Federal Court, and Canada should've paid it," Blackstock said.

"There shouldn't have been any more litigation after that."

Canada has challenged the outcome of that judicial review in the Federal Court of Appeal, and is due to decide what to do with the case by early December. 

The human rights complaint has already had about 30 legal orders issued over 15 years, and Canada has yet to secure a victory in any legal arena that wasn't later overturned, Blackstock said.

"Canada has lost every single one of those reviews, with the exception of one which was overturned on appeal," she said.

"I don't understand why they're paying taxpayer money on this losing legal battle that also denies children's rights. That to me is so disappointing, and totally against the spirit of reconciliation."