Ottawa fights ruling on Indigenous child welfare
‘One-size-fits-all’ approach, says government
OTTAWA • The federal government is fighting a recent Canadian Human Rights Tribunal ruling on Indigenous child welfare because it takes a “one-size-fits-all” approach and excludes many First Nations children who suffered from underfunding of child and family services, government lawyers argued Monday.
Federal Court is hearing arguments this week in the Liberal government’s bid to put the tribunal’s decision on hold, as Ottawa grapples with how best to compensate Indigenous children who were unnecessarily removed from their communities.
Just before the hearing got underway on Monday morning, federal ministers announced that although they are challenging the tribunal’s ruling, they are planning to negotiate compensation through a separate classaction lawsuit that covers a larger number of people.
“The Government of Canada is committed to seeking a comprehensive settlement on compensation that will ensure long-term benefits for individuals and families and enable community healing,” Indigenous Services Minister Marc Miller and Justice Minister David Lametti said in a statement.
In September, the human rights tribunal found the government wilfully and recklessly discriminated against First Nations children by underfunding child and family services on reserve, 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 on Oct. 4, in the midst of the federal election campaign, and asked the Federal Court to stay the ruling. The move was decried by First Nations groups and the federal NDP, who accused the government of taking Indigenous children to court.
On Monday, Justice Department lawyer Robert Frater argued the tribunal’s decision would “require Canada to take a piecemeal approach to settling,” since the ruling only affects Indigenous people who were involved in the child welfare system since 2006. “The righting of historical wrongs is an important part of reconciliation,” Frater said. “But it has to be done in a fair and equitable way and it has to be done in an inclusive way.”
In contrast, the classaction lawsuit covers all First Nations children who suffered from the underfunding of child and family services dating back to 1991, but not their parents.
Frater also argued the tribunal’s decision uses a
“one-size-fits-all” approach by ordering the government to pay each child the same amount — the maximum $40,000 in compensation the tribunal is allowed to award. He said the victims should have the chance to debate whether each of them is entitled to the same amount, regardless of individual experiences.
Miller and Lametti made a similar argument in favour of pursuing a settlement though the class-action lawsuit instead of the tribunal ruling. “The class action model is designed to give individuals the chance to have their interests represented, to address the interests of all impacted individuals and to allow parties to arrive at an appropriate resolution of past harms,” they said in their statement.
Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, said there is nothing preventing the government from going above and beyond the tribunal ruling. “They don’t realize that the answer is not taking away the money from the children who have suffered, it’s adding more money into the pile for those who’ve suffered more,” she told reporters outside the courtroom.
“So this waiting around might make sense for them bureaucratically, or even politically. But for these children, they’ll never get their childhoods back. And in some cases they’ll never get their lives back. And in some cases, they’ll never get their families back.”
The Caring Society filed the original human rights complaint in 2007 with the Assembly of First Nations, and lawyers for the society argued against the federal government in court on Monday. “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.
The federal government is also arguing that Ottawa has addressed the underfunding of child and family services, thus ending the discrimination against First Nations children. But Frater pointed out that under the tribunal ruling, the government could be required to keep paying compensation to all children removed from their homes until the tribunal agrees. “In other words, this is a judgment that creates a continually expanding liability,” he said, estimating the ruling would require payment of at least $5 or $6 billion.
Blackstock said it’s “tragic” to hear the government claim the discrimination has ended. “Until they accept responsibility that this is going on, then we’re going to have another generation of kids who are going to be at risk,” she said.
THE ANSWER IS NOT TAKING (MONEY AWAY).