Arguments end in case challenging First Nations child welfare ruling

OTTAWA— Advocates fighting for First Nations children and families ripped apart by an underfunded child welfare system say the Trudeau government should stop challenging a Canadian Human Rights Tribunal order that awarded money to victims.

“If any of us did this to children in society, we wouldn’t be given permission to go around shopping around courts to see who would give us the best deal,” said Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, which filed the original complaint a dozen years ago. “It’s about accepting responsibility as adults towards children and doing the right thing.”

Lawyers wrapped up arguments in a Federal Court on Tuesday on Canada’s challenge to the tribunal’s recent ruling ordering Ottawa to pay $40,000 to every First Nations child who was inappropriately taken away from their parents after 2006. Parents and grandparents whose kids and grandkids were taken from them and kids who were denied essential services were also to be given the same compensation.

The Sept. 6 ruling said the federal government “wilfully and recklessly ” discriminated against Indigenous children living on-reserve by not properly funding child and family services. As a result, children were sent away from their homes, families and reserves. Had they lived off-reserve, the children would be covered by betterfunded provincial systems.

The Liberal government had its lawyers ask the Federal Court to stay the order, which imposed a Dec. 10 deadline for the government to come up with a plan on how it would provide payment to victims.

Federal Court Justice Paul Favel said Tuesday he will deliver a decision as soon as possible.

Justice Department lawyer Robert Frater said Canada agrees its actions were discriminatory. He also said the government would compensate children and their families — just not through the order from the tribunal, which he called an “unnecessarily invasive piece of surgery by the wrong doctors.”

Ottawa instead wants the compensation to come through a settlement in a separate but related class-action lawsuit filed earlier this year, which is seeking $6 billion in damages for Indigenous children. That case could cover all victims going back to 1991. The government’s lawyers argued in court that the tribunal decision’s compensation plan doesn’t allow for this because its order only includes victims and their families since 2006.

Lawyers for the First Nations Child and Family Caring Society and other parties in the case said nothing stops the government from paying damages awarded by the human rights tribunal while also extending compensation to other victims.

“We’re in the litigation process at the tribunal on compensation because Canada wanted us to go there,” Blackstock told reporters outside the courtroom Tuesday.

“We wanted to mediate, but Canada said, ‘No, we have to litigate this in front of the tribunal.’ So they got what they wanted, which is an order, but now they don’t like the order and they want it out of the way, so that they can talk,” she said.

“It feels like they’re just trying to find a place that agrees with them.”