The Federal Court will be asked this week to approve $23 billion in compensation for First Nations children and families who experienced racial discrimination through Ottawa's chronic underfunding of the on-reserve foster care system and other family services.
If approved, the proposed settlement agreement would be the largest in Canadian history — but it might not end a 16-year legal fight.
The proposed settlement includes a request for Prime Minister Justin Trudeau to issue a public apology. Not everyone involved in the compensation case thinks that can happen yet.
Cindy Blackstock, the First Nations children's advocate who started the battle for federal compensation in 2007, said that while the compensation should be approved, the government can't apologize when it's still discriminating against First Nations kids and families.
"We need to avoid performative apologies," said Blackstock, executive director of the First Nations Child and Family Caring Society.
"We need to make sure that this time the words have meaning, and that meaning is changed behaviour."
The proposed $23 billion First Nations child welfare settlement agreement includes a request for Prime Minister Justin Trudeau to make a public apology in the House of Commons. (Patrick Doyle/Canadian Press)
In a letter sent to the prime minister on Oct. 12, the AFN asked Trudeau to ensure the discrimination does not continue.
It also urged Trudeau to immediately make a public apology in the House of Commons to all First Nations children, families and communities harmed by Canada's discriminatory conduct.
"We ask that you, as prime minister, now apologize to our people on behalf of the Government of Canada," Interim National Chief Joanna Bernard wrote in the letter, obtained by CBC News.
The AFN's letter cites a 2016 decision by the Canadian Human Rights Tribunal (CHRT) which concluded that the government engaged for decades in discrimination based on race, contrary to the Canadian Human Rights Act, by underfunding First Nations child and family services.
Debate over timing of federal government apology
Manitoba Regional Chief Cindy Woodhouse, who led the AFN's compensation negotiations, said the apology would put pressure on Canada to make major changes.
"Our kids have been waiting decades for an apology," Woodhouse said.
"The work has to get done. The asks have to get put forward … We have long-term reform now that we do have to come together on."
Canada's actions led to tens of thousands of unwarranted apprehensions of First Nations children from their homes, families and nations, according to the CHRT, which called the government's conduct wilful and reckless.
The proposed settlement before the Federal Court on Monday follows a 2019 CHRT ruling that ordered Ottawa to pay the maximum human rights penalty for discrimination: $40,000 to each affected First Nations child and family member.
The government fought the order but eventually negotiated an agreement after it faced two class action lawsuits, including one launched by the AFN that was merged with another lawsuit.
Manitoba Regional Chief Cindy Woodhouse of the Assembly of First Nations said an apology from the prime minister would encourage Ottawa to deal with long-term reform of the on-reserve child welfare system. (Chris Rands/CBC)
Woodhouse said the court hearing will be a pivotal moment affecting the lives of more than 300,000 First Nations people eligible for compensation.
"The child welfare system has been very hard on our people and we have more kids in care than at the height of residential schools," she said.
"It shows them that they've been wronged."
Work on long-term reform dragging, advocate says
On top of the $23 billion for compensation, the government set aside an additional $20 billion for long-term reform of the on-reserve child welfare system and family services — a change that the government said must be First Nations-led.
"We have a duty to ensure this never happens again," wrote Zeus Eden, press secretary to Indigenous Services Minister Patty Hajdu.
"We remain at the negotiating table and are committed to finding an acceptable resolution, so that every child in this country can have a fair shot at reaching their full potential."
Eden said Ottawa is still working with the First Nations Child and Family Caring Society, the AFN and other First Nations partners to reform the on-reserve child welfare system and other family services.
But Blackstock said those talks haven't been productive and barriers to funding remain, especially for First Nations children accessing services under a policy known as Jordan's Principle.
The policy is named after Jordan River Anderson of the Norway House Cree Nation, who died in 2005 at the age of five in the midst of a two-year battle between Manitoba and Ottawa over who would pay for his care.
Jordan's Principle states that when federal and provincial governments disagree over which level of government is responsible for providing health or educational services to First Nations children, they must help the child first and sort out the bills later.
The government is supposed to process Jordan's Principle requests within a 12 to 48 hour timeframe. Blackstock said Ottawa is failing to meet those deadlines.
Provincial offices for Indigenous Services Canada are dealing with backlogs of hundreds of Jordan's Principle requests and, as CBC News has reported, specialists who deliver care to First Nations children frequently are not being paid on time, according to the Caring Society's Oct. 10 submission to the CHRT.
"There's some significant logistical problems that could be quickly remedied by the federal government if it just simply acknowledged that these were problems and fixed them," Blackstock said.
The CHRT is set to hold a case conference on Blackstock's concerns next month.
"We can try to get some measure of justice for those who have already been hurt while we continue to put the pressure on the government to not repeat the behaviour that has cost children their childhoods, sometimes their lives," Blackstock said.