Local Journalism Initiative Reporter
Children living on reserve who had been removed by child services, and families on First Nations who had children removed from them, will be the first members of a class action to receive compensation.
The base compensation amount in the $23.3 billion child and family final settlement agreement signed with the federal government will be $40,000. It’s expected to flow next year.
However, chiefs on Tuesday, Dec. 5 at the Assembly of First Nation’s special chiefs assembly voiced concerns over the process that was being followed.
Legal counsellors informed them that they were adhering to the agreement.
“AFN is only one party to this settlement agreement. We do have other class members. We have the representative plaintiffs. We have Canada. So there are a number of people. We can’t make decisions unilaterally,” said Stuart Wuttke, AFN’s legal counsel, who reminded the assembly that the agreement had been approved by chiefs in April.
On Oct. 24, the Federal Court approved the First Nations Child and Family Services, Jordan's Principle, Trout and Kith Class Settlement Agreement. The agreement was reached between the AFN, the Moushoom and Trout class actions plaintiffs and Canada, with the support of the First Nations Child and Family Caring Society.
Among the concerns voiced was the membership of the Settlement Implementation Committee, which comprises five members, two of which are First Nations and the remainder are class action legal counsel members. The committee is responsible for monitoring the overall claims process.
Representing the First Nations are Pine Creek First Nation Chief Derek Nepinak for a three-year term and former Wiikwemkoong Unceded Territory Chief Duke Peltier for a five-year term. Both men can be reappointed for five-year terms.
“All due respect to the men, but how come there’s no women on that committee?” asked Tsuut’ina Nation proxy councillor Regena Crowchild, to applause. “The women play a key role here. The women are the ones that pushed this thing, began this process…There should be women there.”
Mary Duckworth, chief for the Caldwell First Nation, said the appointments had occurred without the chiefs in assembly being made aware.
Proxy Mary Teegee of Takla First Nation, who is also executive director of the Carrier Sekani Family Services, said she had applied to be on the Settlement Implementation Committee.
“I don’t know what the selection process was,” said Teegee. “When you think about it, it’s probably one of the single most important committees that will have ever been established here at the AFN because we are talking about an unprecedented amount of money.”
She agreed that there should be at least one woman on the committee.
Legal counsel Dianne Corbiere, managing partner with Nahwegahbow-Corbiere, said the agreement made it clear how the Settlement Implementation Committee was to be chosen.
The agreement sets out that First Nation members are to be asked to apply for the position and the AFN executive committee is to recommend to the court its two choices.
On Dec. 6, the AFN announced that the Federal Court had approved the appointments of Nepinak and Peltier, along with legal representatives Wuttke, David Sterns and Robert Kugler to the Settlement Implementation Committee.
Also voiced as concerns was the difficulty vulnerable recipients may face.
“I’m not trying to overturn (the agreement). What I’m saying is that providing money to individuals over one payment, within a few months, that’s going to be gone,” said Terrance Nelson, proxy for Roseau River First Nation. He said this happened with Indian Residential School Settlement Agreement dollars.
“If a person in the system is getting a payment and in history they have been categorized as vulnerable, how do we protect those children?” asked Chief Vera Mitchell of Poplar River First Nation.
Teegee added her concerns about compensation money flowing “in the midst of an opioid crisis in our communities.”
She said surge capacity funding, such as extra resources for policing and health, was required.
“There has to be funding now, during and after the compensation,” she said.
Protecting vulnerable people was something that was being looked at, said Wuttke, and supports had been negotiated in the settlement agreement.
“Building on our experiences in the shortfalls of previous settlement agreements, we are looking at doing things a bit different,” he said.
“We’ll be working with various communities when we go talking about distribution protocol. Part of that process is how best to serve communities and community members,” he added.
Deloitte has been hired as claims administrator and as such will provide regional liaisons to support First Nations communities and navigators to support and guide claimants.
“This is a new feature of the agreements…This is very innovative and very positive,” said Dean Janvier with Deloitte.
Janvier said feedback was being requested from First Nations for the navigational support plan and visits would be made to communities in January and February.
Kitchenuhmaykoosib Inninuwug Chief Donny Morris said it was important for navigators to travel to the northern remote communities. He said many residents had not applied for other compensation, such as Indian residential school, day school, or water settlements.
“I’d like to see somebody come to the community physically and help these people,” said Morris. “I’d like that barrier to be addressed.”
Corbiere said there would be navigators in remote communities, adding that they were going to the National Assembly of Remote Communities to see “how we can do things better.”
Other supports being offered include application forms being pre-populated with information already gathered by the government once claimants come forward; mental health supports; financial literacy; and making use of existing First Nations organizations for support.
“The supports…in the agreement itself is a negotiated process. We didn’t get everything we want. We definitely had to fight for everything we did get…Canada has agreed to pay for a number of supports,” said Wuttke.
He noted that Canada will fund health care professionals to deliver supports to class members, but Canada had not agreed to pay for additional policing in communities.
Teegee said that a resolution put forward by Takla First Nation Chief John French to look at the supports needed in communities was rejected by the resolution committee.
Adam Williamson, in-house legal counsel for AFN, explained that some terms in that resolution were in “direct conflict” with previous resolutions passed by the chiefs in assembly, including the chiefs’ endorsement of the final settlement agreement.
He said the resolution committee had advised the mover and seconder of the resolution about making changes. That work was not done.
In accordance with the final settlement agreement, Canada will “make best efforts” to ensure that compensation is tax-free. Canada would also “urge” provinces and territories to do the same.
The $23.4 billion compensation will be held in trust funds which will be approved by the Settlement Implementation Committee. There will be an investment committee to review the viability of the investment strategy.
Distributions for the removed child class (between April 1, 1991, and March, 31, 2022) and the removed child family class are expected to start flowing the summer or fall of 2024. The base compensation for a removed child is $40,000, but could be enhanced depending on additional harms suffered. A budget of $7.25 billion has been set.
For caregiving parents or grandparents, $40,000 is also the base amount, but it may be multiplied depending on the number of children removed. However, compensation maxes out at $80,000. A budget of $5.75 billion plus $997 million for multiplication has been set.
Distributions for Jordan’s Principle and Trout class claimants, as well as Kith class claimants, will roll out as soon as distribution protocol and the claims process are finalized.
Class counsel fees will be paid by Canada and will not be taken from the settlement. There is a fee agreement before the federal court that will be decided on shortly.