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Capital Perspectives – Newsletter

Fasken Aids AFN in Reaching Agreement in Principle With Government of Canada in Landmark ‘Millennial Scoop’ Case

On Jan. 4, 2022, a $40-billion agreement in principle was announced between the Government of Canada and The Assembly of First Nations (AFN) to compensate the country’s Indigenous Peoples for decades of discriminatory practices by the federal child welfare program. This marks the largest settlement in Canada’s history and ranks among the largest in the world.

AFN – a national advocacy organization for Aboriginal Peoples who are ethnically neither Métis nor Inuit – was represented by Fasken, in alliance with Indigenous Peoples law firm Nahwegahbow, Corbiere and the General Counsel for the AFN.

The final settlement agreement, due on March 31, seeks to redress the harm inflicted on more than 200,000 of Canada’s First Nations’ children and their families, where children were removed from their homes and communities or denied services under discriminatory conditions. The terms provide $20 billion as compensation for First Nations children and families for these practices at Canada’s federal First Nations Child and Family Services (FNCFS) program and an additional $19.807 billion to reform the program.

Fasken Ottawa Partner Peter Mantas – leader of Fasken’s Procurement group, co-leader of its White Collar Defence and Investigations group, and leader of its Ottawa Litigation group – pointed out that the settlement negotiations, which lasted more than a year, are not yet complete.

“I’m optimistic that we’ll enter a final agreement, but we certainly have much more work to do,” he said. "The announcement on Jan. 4 was an important milestone in the process.”

Over the next few months, the AFN and the Government of Canada and others will work toward a full compensation package in a final settlement agreement that will contain details on eligibility for compensation and the application process. Work toward long-term reform will include AFN-facilitated engagement sessions that will guide negotiations to ensure the reformed program is relevant and responsive to the needs of First Nations children and families across the country.

The legal process began in 2007, when the AFN and the First Nations Caring Society filed a human rights complaint against the Government of Canada. In 2016, the Canadian Human Rights Tribunal ruled that the government discriminated against First Nations children by underfunding First Nations child and family services on reserves and ordered $40,000 to each First Nations child taken from their homes and placed into foster care unnecessarily. After the federal government appealed the compensation order, the AFN filed a class action in 2020.

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