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Former TRC commissioner Murray Sinclair to facilitate talks with Ottawa around compensation for Indigenous children

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Murray Sinclair prepares to appear before the Senate Committe on Aboriginal Peoples in Ottawa on Tuesday May 28, 2019. The confidential talks now underway are focused on the idea of compensation for Indigenous children who were unnecessarily taken into the child welfare system.Fred Chartrand/The Canadian Press

Former Truth and Reconciliation Commissioner Murray Sinclair will facilitate high-stakes compensation talks related to the welfare of Indigenous children with the goal of reaching a settlement by the end of the year, The Globe and Mail has learned.

Mr. Sinclair, who left the Senate last January, will help to guide talks now underway in Ottawa, a source with direct knowledge of the discussions told The Globe. The Globe is not identifying the individual because they are not authorized to speak publicly about the matter.

Mr. Sinclair is expected to meet with the parties and is also taking part in group discussions.

The confidential talks are focused on the idea of compensation for Indigenous children who were unnecessarily taken into the child welfare system. The goal is to come to an out-of-court settlement, expected to be worth billions of dollars, before the end of the year.

Much is at stake for the Liberal government as the talks play out. Opposition parties and advocates have repeatedly criticized the government for the position it has taken in court on the matter.

On Oct. 29, Ottawa filed what is known as a “protective appeal” of a ruling from Federal Court Justice Paul Favel, stating it believed that it believed the court erred in its decision which upheld two orders from the Canadian Human Rights Tribunal (CHRT).

The CHRT order required Ottawa to provide up to $40,000 in compensation to each First Nations child unnecessarily taken into foster care as a result of underfunded government services since 2006. The order would also require payments to parents or grandparents.

Justice Favel’s ruling, which was handed down on the eve of the first National Day for Truth and Reconciliation, said the federal government had not succeeded in establishing that the compensation decision by the human rights tribunal was unreasonable.

“The tribunal … reasonably exercised its discretion under the CHRA [Canadian Human Rights Act] to handle a complex case of discrimination to ensure that all issues were sufficiently dealt with and that the issue of compensation was addressed in phases,” he wrote.

When the notice of appeal was filed on Justice Favel’s decision, Ottawa also announced legal proceedings will be on hold for now and that they want to reaching a deal with parties in the case as well, as parties in separate class action lawsuits focused on Indigenous child welfare.

Crown-Indigenous Relations Minister Marc Miller said at the time that Ottawa would be putting forward a significant amount of money to try and reach a settlement, though he could not specify how much. He did say that it would cost billions to fix the problem.

While speaking outside of a Liberal caucus meeting on Monday, Justice Minister David Lametti said that the offer that was put on the table was significant enough “to bring everybody to the table” and for that reason he is optimistic about the outcome that can be achieved.

Ottawa has maintained its position in the CHRT case is about a matter of jurisdiction. During legal proceedings, Robert Frater, a lawyer for the Attorney-General of Canada, said Ottawa recognized the need to compensate those who were affected but argued the CHRT’s findings were reached through a flawed chain of reasoning.

First Nations advocates and opposition parties said that the government’s decision to file an appeal of the Federal Court decision raised serious questions about Prime Minister Justin Trudeau’s commitment to reconciliation.

Since 2015, Ottawa has said that its relationship with Indigenous peoples is of paramount importance. Mr. Trudeau has faced greater pressure to make progress on this file since summer, when several First Nations announced that they had found unmarked burial sites on the grounds of former residential schools.

Assembly of First Nations National Chief RoseAnne Archibald has previously said that her organization was disappointed that Ottawa continues to pursue an appeal, but that the AFN is encouraged that a deadline has been set for negotiations.

“This in effect will pause the appeal while we immediately sit down and work towards reaching a global resolution by December 2021 on outstanding issues that have been the subject of litigation, including compensation for the harms done through child and family service,” she said. “Our priority remains to ensure that our children and families are supported to thrive.”

Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society, told the Globe earlier this month that she has been part of talking circles before and “they haven’t really got us very far.”

“I think this is worth one last kick at the can for kids,” Ms. Blackstock said. “And then that’s it for me. I’m done. Because the only real progress that we’ve seen so far has been really through litigation. But in fairness to the kids, if we can reach an agreement, it’ll bring justice sooner. So that’s why I’m going in there.”

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