The federal government has agreed to certification of a national class action on funding levels for First Nations child welfare services – a legal milestone seen by Ottawa as a major step toward the negotiation of a settlement.
In February, the Assembly of First Nations filed a federal class action lawsuit to seek damages for thousands of First Nations children and families.
In it, the national advocacy organization said that Canada’s funding was discriminatory because the federal system created a perverse incentive to remove First Nations children from their families and communities and place them in out-of-home care.
On Thursday, AFN National Chief Perry Bellegarde said he welcomed the government’s agreement to certify the class action.
Legal teams for the parties appeared before the Federal Court for a special sitting on Thursday and agreed to mediation to try and resolve claims of the class action through negotiation, the AFN said.
“Systemic discrimination against First Nations children is abhorrent,” Mr. Bellegarde said in a statement after the proceedings.
“Canada’s decision to work with the AFN and its allies in addressing this tragedy is an important step.”
Indigenous Services Minister Marc Miller and Justice Minister David Lametti said Thursday the parties are in agreement on the certification of the claims put forward.
“We are making progress in negotiations,” they said in a statement.
“In order to obtain a prompt resolution, parties have agreed to commence mediation as soon as possible upon appointment of a mutually acceptable mediator.”
Consenting to certification marks a step forward in negotiating a settlement to compensate those harmed by underfunding of child and family services in communities, the ministers added.
“Discussions will continue in the spirit of collaboration in order to achieve a fair, equitable and comprehensive resolution to compensation.”
It will be critical for Canada to act in good faith in the upcoming negotiations and to provide fair compensation for all who suffered harm, Mr. Bellegarde said. “Only then can we bring closure to this sad chapter in our history.”
The negotiations will also seek a resolution to outstanding matters now before the Canadian Human Rights Tribunal (CHRT) involving similar facts and issues, the AFN said.
When the class action was filed in February, the AFN said it built on the work and evidence at the CHRT.
The AFN class action is seeking compensation for all those harmed by the system, including those not covered in the Canadian Human Rights Tribunal’s decision, AFN Regional Chief Kevin Hart said at the time.
Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society, said Thursday that Canada remains bound by the continuing litigation before the CHRT to end its discriminatory conduct toward First Nations children and to compensate victims.
The society, along with the AFN, first brought forward a complaint against Canada in 2007 and argued the federal government failed to provide First Nations children the same child welfare services available elsewhere, contrary to the Canadian Human Rights Act.
In January, 2016, the tribunal found Canada had indeed discriminated, and acknowledged “the suffering of those First Nations children and families who are or have been denied an equitable opportunity to remain together or to be reunited in a timely manner.”
“UNICEF ranked Canada 30th out of 41 rich countries in the treatment of children,” Ms. Blackstock said. “Canada can improve its ranking by stopping discrimination toward First Nations children and families.”
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