Ottawa agrees to certify 2 class action lawsuits over the treatment of First Nation children

The federal government has consented to the certification of two class action lawsuits over funding for First Nation child welfare services and the state of health services for children on-reserve and in the Yukon.

The certification of the class actions sets the stage for what could be an umbrella settlement that could cover the two cases and a separate First Nations child welfare compensation order issued by the Canadian Human Rights Tribunal, which is facing a judicial review before the Federal Court.

The two class action lawsuits received certification on Thursday. One was filed by the Assembly of First Nations on behalf of former First Nation foster children, while the other was filed by three law firms on behalf of a former foster child from a Quebec and Nova Scotia First Nation member who suffers from cerebral palsy.

The lawsuits are proceeding together in Federal Court. 

"Consenting to certification marks a step forward in negotiating a settlement to compensate those harmed by under-funding of child and family services on reserve," says a media statement issued by Indigenous Services Minister Marc Miller and Justice Minister David Lametti.

Ottawa is entering into mediation to settle the lawsuits, which are seeking billions of dollars in compensation for First Nation children affected by the on-reserve child welfare system and for those who were denied services Ottawa was expected to provide under what's known as Jordan's Principle.

Jordan's Principle states that First Nation children on reserves must not be kept waiting for vital social services because governments can't agree on who should pay for them.

In a media statement, Assembly of First Nations Chief Perry Bellegarde welcomed Ottawa's certification.

"Canada's decision to work with the AFN and its allies in addressing this tragedy is an important step," he said. 

"It is crucial that Canada act in good faith in these upcoming negotiations, provide fair compensation to all those who suffered harm, and implement real change. Only then can we bring closure to this sad chapter in our history."

Ottawa trying to settle 3 cases

The AFN lawsuit, filed on Jan. 28, is seeking $10 billion in damages.

The AFN lawsuit claims that by shortchanging services for Indigenous children, the federal government created an incentive to remove them from their homes and place them in foster care as the "first — not the last — resort."

The second lawsuit, which is seeking $6 billion in damages, was filed in March 2019 on behalf of former foster child Xavier Moushoom of La Nation Anishnabe du Lac Simon, Que., and Jeremy Meawasige of Pictou Landing First Nation in Nova Scotia. Meawasige was born with cerebral palsy, spinal curvature and autism.

In November, Lametti and Miller issued a joint statement saying the federal government intended to settle the Moushoom and Meawasige lawsuit.

At the time, the ministers indicated the negotiations would also seek resolution to matters now before the Canadian Human Rights Tribunal involving similar facts and issues.

"We will be sitting down with parties and seeing where there is a meeting of minds and move forward on a compensation package, a compensation model that is fair and equitable," Miller said last December.

Last fall, the Canadian Human Rights Tribunal ordered the federal government to pay $40,000 — the maximum allowed under the Canadian Human Rights Act — to each child taken from their homes and communities through the on-reserve child welfare system from Jan. 1, 2006, to a date to be determined by the tribunal.

Some estimates place the number of children that could be affected at about 50,000, with the largest number in the Prairie provinces and British Columbia. The ruling, like the AFN class action, also covers First Nation children in Yukon.

The Trudeau government asked the Federal Court for a judicial review of the tribunal order, saying that because it came down in the middle of an election, there was not enough time to "have conversations with communities, with leaders, to make sure we're getting that compensation right."

That matter is still before the Federal Court.