Ottawa loses appeals of First Nations child welfare rulings

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This article was published 28/09/2021 (1183 days ago), so information in it may no longer be current.

OTTAWA—As Canada prepares to observe its first National Day for Truth and Reconciliation, the Federal Court has dismissed Ottawa’s appeals of two human rights tribunal rulings concerning First Nations child welfare compensation and protection.

“It’s a complete win for children and for the survivors of residential schools,” said Cindy Blackstock, executive director of the First Nations Child and Family Caring Society..

“It was a repudiation of all of the flimsy arguments that the federal government has been throwing at these kids to try and avoid accountability for treating them fairly, giving them the help they need and compensating the victims of their discrimination.”

The court on Wednesday upheld a 2019 ruling of the Canadian Human Rights Tribunal that ordered Ottawa to pay $40,000 — the maximum amount permitted under the Canadian Human Rights Act — to thousands of First Nations children and their families.

The compensation order stemmed from another tribunal ruling in 2016, which found that the federal government was discriminating against First Nations children on reserves by failing to provide the same funding as welfare services elsewhere in the country.

The 2019 order also applied to affected First Nations children in the Yukon and those who were denied services — or experienced a delay in receiving services — covered under Jordan’s Principle, which prioritizes helping First Nations children in need instead of arguing over which level of government should pay for the services.

The court also upheld a second decision about to whom Jordan’s Principle applies, after the tribunal ruled that certain non-status children should be covered under the policy.

The overrepresentation and treatment of Indigenous children in care is considered by some advocates as the continuation of the devastating legacy of Canada’s residential school system.

On Wednesday night, Prime Minister Justin Trudeau — joined by Indigenous leaders, elders and residential school survivors — sat behind Parliament Hill’s Centennial Flame to mark the National Day for Truth and Reconciliation, which is being held for the first time on Thursday.

Speaking in French, Trudeau said reconciliation is about more than understanding the mistakes of the past: it is also about understanding how those mistakes shape the present.

The prime minister spoke from a podium erected behind a pile of stuffed animals and children’s shoes in honour of those who lost their childhoods to the schools, making no mention of the on-reserve child welfare system and Wednesday’s court decision.

According to an email from Indigenous Services Minister Marc Miller’s office, Ottawa is reviewing the Federal Court’s decision “and further information will be forthcoming.”

“Canada remains committed to compensating First Nations children who were removed from their families and communities and to continue implementing significant reform of the First Nation Child and Family Services Program,” the statement read.

The issues at play date back to 2007, when the Assembly of First Nations and the Caring Society first filed a complaint to the Canadian Human Rights Commission, alleging systemic discrimination against Indigenous children and their families.

Ottawa has argued that the tribunal had overreached in issuing a compensation order, stating that the case was a matter of systemic discrimination rather than a class-action proceeding.

The federal government also argued that the tribunal unreasonably expanded the scope of Jordan’s Principle, given that the 2007 complaint only concerned First Nations children on reserve and in the Yukon.

Justice Paul Favel concluded Wednesday that the compensation order fell within the tribunal’s jurisdiction because the Canadian Human Rights Act “provides the tribunal with broad discretion to fashion appropriate remedies to fit the circumstances.”

The court also found that in expanding the scope of eligibility for Jordan’s Principle, the tribunal was trying to “prevent further discrimination by adding additional categories for eligibility that extend beyond the Indian Act.”

Favel also dismissed another of the government’s arguments that the tribunal process was procedurally unfair, writing that “the tribunal afforded all parties with a full picture of what was to be determined at each stage of the proceedings.”

Ottawa’s legal battles against First Nation children and their families cropped up on the campaign trail in recent weeks, with the NDP’s Jagmeet Singh raising the issue several times in an attempt to paint Prime Minister Justin Trudeau as an ineffective leader.

“How do you restore trust when you’ve got a prime minister that takes a knee one day, and then takes Indigenous kids to court the next?” Singh asked during the English-language leaders’ debate.

The line prompted Singh and Trudeau to spar over the accusation, with the prime minister claiming his government remains committed to offering compensation.

Ultimately, the court’s decision shows Indigenous people that the legal system believes in their struggles, Blackstock told the Star.

“The other thing it’s showing … and this is the chapter that the prime minister is about to write, is whether or not the Canadian government is finally ready to put down its sword and stop fighting against these children and their families and do the right thing.”

At the end of his decision, Favel, a member of Poundmaker Cree Nation, took a moment to reflect on the concept of reconciliation. He quoted Pitikwahanapiwin, also known as Chief Poundmaker, who once referenced a story about a man who sat by a trail for too long, until it grew over and he could no longer find his way.

“In my view, the procedural history of this case has demonstrated that there is, and has been, good will resulting in significant movements toward remedying this unprecedented discrimination,” Favel wrote.

“However, the good work of the parties is unfinished. The parties must decide whether they will continue to sit beside the trail or move forward in this spirit of reconciliation.”

Raisa Patel is an Ottawa-based reporter covering federal politics for the Star. Follow her on Twitter: @R_SPatel