Tribunal approval of child welfare settlement one more step in fight against discrimination

The Canadian Human Rights Tribunal has approved a revised final settlement agreement that sees more victims and survivors compensated for the discriminatory child welfare practices of the federal government in delivering services to First Nations children and families living on reserve.

The revised agreement approved by the tribunal was reached by Canada, the Assembly of First Nations (AFN), and the Moushoom and Trout class action plaintiffs in April.

It follows after the tribunal rejected an initial settlement agreement put forward by the parties in 2022. That agreement did not include two groups identified by the tribunal: children and youth in placements that were not funded by Indigenous Services Canada (ISC), and the estates of deceased parents.

Now the settlement does include those groups along with an additional $3.34 billion for a total of $23.34 billion for financial compensation for approximately 300,000 First Nations children, youth and families.

Compensation will flow to children removed from their homes, families and communities; caregiving parents/grandparents who had children removed; and children who experienced denials, unreasonable delays, and gaps in essential services due to Canada’s discriminatory approach to Jordan’s Principle.

On July 26, in a five-page letter, the tribunal said that the new agreement “will provide some measure of justice to First Nations children and families who have unjustly suffered because of their race instead of being treated honorably and justly.”

The agreement still needs to be approved by the federal court.

To be at this stage brings relief for Carolyn Buffalo, who along with her husband Richard Jackson and son Noah Buffalo-Jackson, is among the six representative plaintiffs in the AFN class action.

However, it’s overwhelming anger that is still on the surface for having “had to suffer this discrimination just because we're First Nations living on the reserve,” said Buffalo.

The Buffalo-Jackson family represents the Jordan’s Principle class, who according to court documents, “were denied a service or product, or whose receipt of a service or product was delayed or disrupted, on grounds, including but not limited to, lack of funding or lack of jurisdiction, or as a result of a jurisdictional dispute with another government or governmental department.”

Noah, now 21, has cerebral palsy. His family lives on the Montana Cree First Nation in Alberta. Buffalo is a former chief and councillor. She now serves as legal counsel, policy analyst and environment officer for the Yellowhead Tribal Council.

“Twenty-three billion dollars sounds like a lot, and it might look to people that we're finally getting justice (but) this is not justice. And this is not the end for a lot of us,” said Buffalo.

“You can't give all of these kids who've been removed, you can't give them all that time back. You can't give the families who lost their kids or whose kids are taken from them, you can't give them that time back. You can't undo all of the abuse and horrors that they all suffered. You can't undo it. You can't undo all of the people who've had to leave home, leave the reserves just to access services. You can't give them that time back in their communities.” 

The settlement sees individual compensation of $40,000, an amount that represents the maximum dollars the tribunal can order. However, “those who suffered greater harm will receive a minimum of $40,000,” according to court documents.

What criteria will be used to “top up” that figure is unclear, says Buffalo.

The agreement also states that only two caregivers in a family are eligible for the $40,000 each.

That figure, says Buffalo, doesn’t begin to compensate her family for all their losses. It doesn’t take into consideration the help Noah’s siblings provided or Buffalo’s extended family provided. It doesn’t take into account two years of a teaching salary loss for Jackson, because he had to stay home from work in order to drive their son to school because a wheelchair-accessible school bus wasn’t available.

It doesn’t take into consideration Buffalo and Jackson cashing in their pensions to buy a van to retrofit it to make it wheelchair accessible. It doesn’t take into consideration lost job opportunities and promotions. It doesn’t take into consideration that neither parent can contemplate retirement at this point. It doesn’t take into consideration a house that provides limited accessibility to Noah because it can’t be renovated to make it fully accessible for a wheelchair.

Buffalo admits that she and her husband had the “tough discussions” about moving off reserve, one of three options available to on-reserve families needing help for their children. Another option would have been “forced removal” by putting Noah into care off reserve.

Instead, they chose the third option: “stay and fight.”

Buffalo wasn’t willing to leave her home which is located on land steeped in family history, where “the trees right outside my house, my grandfather planted those trees.”

Moving off reserve would also mean straining extended family and community support and giving up on culture and language.

“I can't tell you how much it freaking hurts to have to even think about those options. But you have to. And non-Indigenous families don't have to think about those things or make those decisions,” said Buffalo.

She is quick to point out that just because Noah is an adult now it doesn’t mean support isn’t still needed. And she is also quick to point out that the other part of the settlement agreement deals with close to $20 billion toward reforming the system long term.

In its letter, the tribunal states that the revised settlement agreement does “not resolve the issue of long-term remedies, reform, eliminating the systemic discrimination found and preventing similar practices from recurring. Accordingly, this ruling does not address those issues.”

The AFN and the First Nations Child and Family Caring Society are to develop a joint proposal to move forward on long-term reform, which sees the federal government committing $19.08 billion to be paid out over five years.

While the Caring Society was not involved in any of the federal court class actions, the organization did join with the AFN in 2007 to file a human rights complaint against the federal government which got the ball rolling on the settlement agreement.

“To me, we've just come another step forward, but we're not done. Until the federal court says, ‘We approve this and it is now settled’ and the Prime Minister hands my son some tobacco and says, ‘I apologize.’ Until those things happen, this is not done,” said Buffalo.

The revised final settlement agreement approved by the Tribunal includes a commitment from the minister of Indigenous Services to request an apology from Prime Minister Justin Trudeau.

The tribunal’s full decision has yet to be released.

According to the AFN, the revised final settlement agreement is expected to be presented to the federal court for approval in October. Compensation to eligible First Nations children and families is anticipated to begin in 2024.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.