OTTAWA — The Federal Court has rejected a request from Ottawa to press pause on a Canadian Human Rights Tribunal ruling ordering compensation for First Nations children who were unnecessarily removed from their families and communities due to underfunding of the on-reserve child welfare system.
The decision means the federal government will have to submit a plan to the tribunal by Jan. 29, 2020 detailing how compensation could be paid out. However, Ottawa will continue to fight the tribunal’s ruling in court, arguing there are flaws in its decision.
The government maintains it does want to compensate First Nations children who suffered due to underfunding of child and family services. On Monday, federal ministers announced Ottawa is looking to negotiate compensation through a separate class-action lawsuit that would cover a larger number of people than the tribunal ruling.
“Nothing changes our strong belief that we must compensate First Nations children harmed by past government policies,” Indigenous Services Minister Marc Miller’s office told the National Post in a statement on Friday. “We will continue to seek a solution that will provide comprehensive, fair and equitable compensation for First Nations children in care.”
The case concerns a human rights complaint initially filed in 2007 by the First Nations Child and Family Caring Society and the Assembly of First Nations. In September, the tribunal found the government wilfully and recklessly discriminated against First Nations children by underfunding child and family services on reserve and in the Yukon, which created an incentive to remove Indigenous children from their homes and communities. It found each child who was unnecessarily taken into care starting on Jan. 1, 2006 is entitled to $40,000 in compensation.
It also ruled the government should pay compensation to parents and grandparents and to Indigenous children who were denied essential services covered under Jordan’s principle, which states that the needs of First Nations children should take precedence over jurisdictional disputes about who should pay for them.
The government filed a legal challenge of the decision in October, and also asked the Federal Court to stay the ruling pending the outcome of that judicial review.
We will continue to seek a solution that will provide comprehensive, fair and equitable compensation
A hearing on the motion to stay was held in Ottawa earlier this week. On Friday, Federal Court Justice Paul Favel denied Ottawa’s request to put the process on hold, finding there would be no harm in the government discussing a compensation plan with the other parties. He pointed out that Canada doesn’t yet have to pay out compensation — it just has to make a plan.
“I’m pleased with it, because it allows the tribunal to continue with its work on the compensation process, so that’s the most important thing,” said Cindy Blackstock, executive director of the Caring Society, in an interview.
She said the decision brings First Nations children one step closer to receiving compensation, but added that Canada continues to throw up roadblocks. “Are they going to stop fighting and do the right thing for kids, or are they going to continue to fight?” she said. “In which case, we will meet them in every courtroom.”
The tribunal originally ordered the parties to submit a compensation plan by Dec. 10, but this week pushed that deadline back to Jan. 29. In a letter on Wednesday, the tribunal wrote that the approaching deadline and Canada’s refusal to enter into discussions left it feeling “cornered.” There is no set date when Ottawa would have to start paying compensation.
During the hearing on Monday, a Justice Department lawyer argued the tribunal’s decision was flawed in part because it ordered the government to pay each child the same amount — the maximum $40,000 in compensation the tribunal is allowed to award. Robert Frater argued the decision took a “one-size-fits-all” approach that didn’t make distinctions “based on harms actually experienced.” He estimated the ruling would require payment of at least $5 or $6 billion.
Frater also argued the decision forces Canada to “take a piecemeal approach to settling,” because the ruling only affects Indigenous people who were involved in the child welfare system since 2006.
In contrast, the class-action lawsuit the government wants to settle covers children affected by the underfunding of child and family services dating back to 1991, but not their parents.
However, the Caring Society argues the children covered by the tribunal ruling shouldn’t have to wait longer simply because others also suffered. “If we wait for perfection, we’ll be back here again and again and again and again, and we’ll never have a solution,” said Barbara McIsaac, a lawyer for the Caring Society, during Monday’s hearing.
The Caring Society had sought to have the judicial review put on hold until the tribunal has issued another order with details about the compensation process. But Favel denied that motion as well, meaning both the tribunal process and the legal challenge seeking to have it overturned will proceed simultaneously.