Fight to compensate Indigenous children back in court

After 14 years, advocates say it’s time for federal government to ‘just do the right thing’

Cindy Blackstock has been fighting the federal government on behalf of First Nations children and their families for more than 14 years now.

As she prepares for the latest and potentially final court battle, she has been turning to an increasingly sympathetic and outraged public, appealing directly to Canadians for support via social media.

“I’m absolutely convinced that Canadians are way in front of the government on this one,” she told the Star. “Their attitudes have changed; they’ve shifted, they’ve become more aware and they want this kind of nonsense to stop.”

On Monday, Blackstock and the First Nations Child and Family Caring Society of Canada, along with the Assembly of First Nations and other interested groups, will be back in Federal Court. There, Justin Trudeau’s government is seeking to overturn a decision by the Canadian Human Rights Tribunal ordering Canada to compensate First Nations children for harms they suffered as a result of the government’s “willful and reckless” discrimination.

Blackstock filed her human rights complaint against the government back in 2007, alleging Canada was discriminating against First Nations children by systemically underfunding child-welfare and other social services.

“(Canadians’) attitudes have changed ... they’ve become more aware and they want this kind of nonsense to stop.”

CINDY BLACKSTOCK ADVOCATE

While the case has dragged on for more than a decade — largely due to procedural delays attributed to the federal government — it has garnered fresh scrutiny in light of the recent discovery of the remains of 215 children on the grounds of a former residential school near Kamloops, B.C.

Critics say the case is emblematic of the disconnect between Trudeau’s soaring rhetoric on reconciliation with Indigenous peoples and the combative positions his government takes in court.

“There’s a huge gap between the warm, emotive, friendly talk of this government and the absolute brass knuckles approach they take at court to deny Indigenous rights,” said NDP MP Charlie Angus, an advocate of a group of residential school survivors in northern Ontario who are also in the midst of a court battle with the government over compensation.

An NDP motion calling on the government to drop its appeal and “cease its belligerent and litigious approach to justice for Indigenous children” passed unanimously this past Monday, with Trudeau and his cabinet abstaining. (A spokesperson for Indigenous Services Minister Marc Miller said the government abstained “as to not be held in contempt of the court.”)

The motion is non-binding and largely symbolic, but Blackstock said she was still encouraged by it, particularly how she saw Canadians pressuring their MPs to support it.

“The Canadian public are really behind this,” she said. “They can’t square the idea that Canada is litigating against First Nations kids and residential school survivors with the pleasant rhetoric that the federal government’s been putting out on reconciliation.”

Under questioning from NDP Leader Jagmeet Singh in the House of Commons, Trudeau insisted Canada is not fighting against the welfare of Indigenous kids in court.

“We’re working with Indigenous communities to arrive at appropriate amounts of compensation,” he said. “We will always work hand-in-hand toward reconciliation.”

(The Assembly of First Nations, the Chiefs of Ontario and the Nishnawbe Aski Nation are all, in fact, opposing the government’s judicial review in Federal Court.)

The federal government admits it discriminated against First Nations children in how it funded child-welfare services and says those children are owed compensation. But it considers the human rights tribunal’s order — the maximum $40,000 award for each victim or their family — to be an “overreach of jurisdiction” and that individual compensation should come via a separate class-action lawsuit, which is currently in mediation.

“The question is not whether we compensate,” Miller’s spokesperson, Adrienne Vaupshas, said. “It is a question of compensating in a way that is fair, equitable and inclusive of those directly impacted.”

Sarah Clarke, a lawyer for the First Nations Child and Family Caring Society, said it’s another example of the federal government “clinging to technicalities to absolve itself of financial liability.”

Clarke said there is “no better moment than now” for the government to give up its fight.

“I mean it’s so disappointing that they just don’t seize on this moment, and join with the rest of the country grieving those children lost in Kamloops and actually just do the right thing.”

The government is seeking to have two orders by the human rights tribunal overturned by the court. One is the order awarding compensation of $40,000 to children who were unnecessarily removed from their families or otherwise suffered as a result of discriminatory underfunding of services. The other is an order expanding the eligibility of Jordan’s Principle, a legal rule, named for Jordan River Anderson, that’s meant to ensure First Nations children receive the health and social services they need when they need them, regardless of jurisdiction. The tribunal ordered the government to expand eligibility to “all First Nations children,” which it specifies as including those who do not have status under the Indian Act, but they or one of their parents are eligible for status, or if they are “recognized by their nation,” regardless of their Indian Act status.

In a joint statement by Miller and Justice Minister David Lametti, released in March, they said the government agrees that eligibility for Jordan’s Principle should be expanded to include children recognized by their nation.

“However, we maintain that further engagement is required directly with First Nations on the important questions of community acceptance and second generation eligibility.”

Despite the government’s public commitments in support of Jordan’s Principle, the human rights tribunal has issued 19 non-compliance orders against Canada since 2016 regarding its interpretation of who should be eligible.

While the tribunal’s order in this case only concerns harms committed since 2006, in its decisions, the tribunal clearly draws a connection between the unnecessary removal of First Nations children from their homes and Canada’s history of residential schools, finding that the present discrimination in the child-welfare system “perpetuated the historical disadvantages” for Indigenous people.

“The historic over-representation of First Nation children in care is a product of the intergenerational impacts of our colonial history,” Vaupshas said. “Canada has committed to advancing compensation for First Nations children harmed by the child welfare system and has undertaken significant reform to the First Nation Child and Family Services system.”

Earlier, the government reached an agreement on a separate class-action lawsuit with residential school “day scholars,” who were excluded from a 2006 settlement with other residential school survivors.

Blackstock is hoping her case will likewise soon be resolved, albeit by different means.

“The good news is our case is going to be webcast,” she said of the Federal Court hearings, scheduled for five days starting Monday. “People will be able to tune in, no matter where they are in Canada and just watch for themselves and judge for themselves about whether the arguments that the Government of Canada is making are in alignment with their values as citizens.”