Canadian Human Rights Tribunal says Ottawa's $20B First Nations child welfare compensation still falls short

A key part of a $40 billion dollar First Nations child welfare agreement described as "historic" by the federal government could unravel following a ruling Tuesday by the Canadian Human Rights Tribunal.

The tribunal rejected Ottawa's $20 billion offer to compensate First Nations children and families harmed by the discriminatory on-reserve child welfare system.

It said the deal did not meet its criteria because it left some children out and did not guarantee the $40,000 in compensation for each child and caregiver ordered by the human rights body in a landmark ruling.

"The Tribunal never envisioned disentitling the victims who have already been recognized before the Tribunal through evidence-based findings in previous rulings," the decision said.

The tribunal said the federal government's cap of $20 billion for compensation would leave out some victims covered by the ruling. 

The tribunal said First Nations children removed from their homes and placed in non-federally funded placements are excluded from the final settlement agreement, along with the estates of deceased caregiving parents and grandparents. 

It also said that some parents and grandparents would get less than the $40,000 it ordered, along with some children and caregivers denied essential services under a policy known as Jordan's Principle.

The tribunal also took issue with the short time frame for victims to opt out of the final settlement agreement. 

Under the agreement, claimants have until February 2023 to opt out of compensation and litigate on their own. If they don't, they won't be able to take their own legal action.

"Such an opt-out scheme would place victims who are receiving less than their CHRT (Canadian Human Rights Tribunal) entitlement of $40,000 in an untenable situation whereby they either accept reduced entitlements under the FSA [final settlement agreement] or opt-out of the FSA to be left to litigate against Canada from scratch," the decision said.

For Ashley Bach, who was apprehended shortly after birth, the decision left her grappling with worry.

"I'm quite worried about all the youth who were expecting to receive compensation," said Bach, who is a representative plaintiff for the removed child class in the Assembly of First Nations' (AFN) lawsuit against Ottawa

"It is a lot emotionally."

The federal government announced in January it had reached a $40 billion agreement with the AFN to settle two class action lawsuits. The government said it met the terms of the human rights tribunal's ruling.