Federal Court upholds landmark compensation order for First Nations children

The Federal Court today dismissed an application for a judicial review of a landmark human rights tribunal compensation order for First Nations children â€" leaving the federal government on the hook for billions of dollars in compensation related to the child welfare system.

Justice Paul Favel said today that the Attorney General of Canada, who had filed the application for a judicial review and a stay of the order from the Canadian Human Rights Tribunal, had "not succeeded in establishing that the compensation decision is unreasonable."

The federal government had argued that the tribunal overreached and was wrong to order Ottawa to pay $40,000 â€" the maximum allowed under the Canadian Human Rights Act â€" to each child affected by the on-reserve child welfare system since 2006. 

The tribunal also said the parents or grandparents of those children (depending on who was the primary guardian) would also be eligible for compensation, as long as the children were not taken into the child welfare system because of abuse.

Favel wrote that the tribunal "reasonably exercised its discretion" under the Act to "handle a complex case of discrimination to ensure that all issues were sufficiently dealt with and that the issue of compensation was addressed in phases."

The Federal Court also upheld a tribunal ruling that ordered Ottawa to pay $40,000 to each First Nations child (along with their parents or grandparents) who were forced to leave their homes to access services, or who were denied services covered by the policy known as Jordan's Principle.

That policy states that the needs of a First Nations child requiring a government service take precedence over jurisdictional disputes over who should pay for it.

The Jordan's Principle portion of the order covers the period from Dec. 12, 2007 â€" when the House of Commons adopted Jordan's Principle â€" to Nov. 2, 2017, when the tribunal ordered Canada to change its definition of Jordan's Principle and review previously denied requests.

Favel dismissed the federal government's argument that the tribunal process was procedurally unfair.

Justice shares thoughts on reconciliation

In his ruling, Favel also shared his thoughts on how negotiations can help realize the goal of Indigenous reconciliation.

"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," he 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."

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, launched the human rights complaint that led to the ruling, along with the Assembly of First Nations.

She told CBC News earlier that she hoped the decision would swing against Ottawa.

"I'm hoping it's one that's favourable to kids and that the federal government finally follows the court order," Blackstock said.

"If they are going to actively litigate against First Nations children and their families from getting justice ... then it's time for the public to put the federal government on the right course-correct."

Ottawa could still appeal the decision.

Cindy Blackstock is the executive director of the First Nations Child and Family Caring Society, which filed the original complaint against Ottawa with the Assembly of First Nations in 2007. (CBC)

The federal government's filing said the human rights case was about systemic discrimination, and it responded by increasing funding and changing the system.

The government's application called for a court order to set aside the tribunal's decision and dismiss the claim for monetary compensation, or an order to set aside the tribunal's decision and refer the matter back to the tribunal for review.

In its reasons for arguing the tribunal erred, the federal government took issue with the conclusion that discrimination in Canada's policy for funding child and family services on-reserve and in Yukon is ongoing.

The compensation order followed a 2016 tribunal decision that found the federal government discriminated against First Nations children by underfunding the on-reserve child welfare system.

The tribunal directed Ottawa to enter discussions with the First Nations Family Caring Society and the Assembly of First Nations, which filed the initial human rights complaint in 2007. The negotiations would determine the best independent process to distribute the compensation and decide who qualifies.

Some estimates place the number of potentially affected children at about 50,000, with the largest numbers in the Prairies and British Columbia. The ruling also covers First Nation children in Yukon.

The federal government's decision to challenge the order has drawn widespread condemnation from First Nations leaders, the NDP, the Green Party and human rights organizations like Amnesty International.

'Absolute victory'

NDP MP Charlie Angus said in a statement Wednesday that the decision was an "absolute victory" for First Nations children.

"For six years, [Prime Minister] Justin Trudeau spent millions fighting the rights of Indigenous children and trying to overturn a ruling that found his government guilty of 'wilful and reckless' discrimination against vulnerable Indigenous kids," Angus said. "The court has thrown his case out."

Angus called on Trudeau to "immediately end his legal battle against First Nation children," noting the ruling was delivered one day before the first National Day for Truth and Reconciliation.

Share this post