Ottawa formally criticizes Indigenous-children compensation ruling

Justice Minister David Lametti is sworn in at Rideau Hall on Nov. 20, 2019. Photo by Kamara Morozuk

The Trudeau government argued Monday that a Human Rights Tribunal decision ordering Canada to compensate First Nations children for racial discrimination was improper, and said it wanted to move ahead with settling a related class-action lawsuit.

Justice Minister David Lametti and Indigenous Services Minister Marc Miller issued a joint statement on the matter Monday morning, saying they were seeking a “comprehensive settlement on compensation,” the same day the government argued in Federal Court that the order by the Human Rights Tribunal should be put on hold.

This latest approach by the government was almost immediately criticized as a needless delay tactic by Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, which filed the human rights claim alongside the Assembly of First Nations.

“It’s again the same old story where they say, ‘We’ll talk about things.’ There’s no commitment that changes children’s lives in what the ministers have offered today,” said Blackstock.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, in 2017. File photo by Alex Tétreault

Scope of proposed class action lawsuit debated

In September, the tribunal found that Ottawa had been “willful and reckless” with First Nations children who suffered racial discrimination since 2006, including being unnecessarily separated from their families.

It ordered the government to pay at least $40,000 each to affected individuals and at least $20,000 to some parents or grandparents. With approximately 50,000 affected people, the government has calculated that this might add up to $8 billion.

The government said the scope of a proposed class-action lawsuit it highlighted on Monday, called Xavier Moushoom and Jeremy Meawasige v. The Attorney General of Canada, goes back to 1991, and so will capture more years of abuse than that of the tribunal ruling which goes to 2006.

But Blackstock countered that the class action only dealt with First Nations children, and not their families. “It doesn’t deal with the pain and suffering that their families went through when those children were wrongfully separated from them,” she said.

The BC Assembly of First Nations also said Monday evening that the federal government’s claim that the tribunal ruling was too narrow amounted to a stalling tactic.

“The federal government is using every tool available to them to avoid or delay carrying out the ruling made by the tribunal instead of meeting their obligations to compensate these victims of their negligence,” said Regional Chief Terry Teegee.

Government says ruling does not address issues

Following his government’s re-election this fall, Prime Minister Justin Trudeau said he had “heard the critiques” that Ottawa needed to be doing more on Reconciliation, and he agreed.

“I am impatient as well about closing the gaps,” he told National Observer during a press briefing. He reiterated that “no relationship is more important to me than the one with Canada’s Indigenous peoples.”

Last month, when the government filed for a judicial review of the tribunal’s decision, it said that while it agreed with the compensation, the distribution scheme was also important to get right.

Miller, a Quebec MP who was shuffled into the role of Indigenous services minister last week, made that point again on CTV News on Monday.

“The issue here isn’t whether the victims of discrimination, Indigenous victims, younger children and families are not due compensation. It’s a question of form and manner,” he said.

Miller and Lametti wrote in their joint statement that the tribunal ruling “does not properly address all issues around appropriate compensation.” For instance, they said, “it only includes individuals impacted from 2006 onwards, while the proposed Moushoom class action goes back to 1991.”

The class action model, on the other hand, allows 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,” the ministers wrote.

In court on Monday, government lawyer Robert Frater expanded on that idea, saying the issue at hand was about “systemic” discrimination, while the tribunal’s ruling did not recognize any “individual experience.”

‘Nothing stopping Canada’ from paying twice

Blackstock told reporters the fact that compensation might not all be uniform shouldn’t stop money from going out the door. “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 have suffered more,” she said.

She also challenged the government’s argument that the tribunal decision didn’t go back far enough.

“There’s nothing stopping Canada from paying out the compensation the tribunal ordered, and then also providing additional compensation to children going back to 1991,” said Blackstock.

“They don’t need to say, ‘We’re going to pay these kids nothing, until we get some kind of settlement … for the rest of the kids.’”

NDP MP Charlie Angus said the Trudeau government needed to stop spending taxpayer dollars fighting the issue in court.

“It’s pretty rich for the government to say, ‘Hey, we really want to work with First Nations kids whose lives have been destroyed through chronic, systemic, reckless underfunding — so we’re here in court to fight a ruling that’s defending these kids,’” he said.

The court will continue with the issue on Tuesday. SOURCE


Ottawa in court this week over First Nations child-welfare compensation order

Federal government also in talks to settle proposed class action lawsuit on First Nations child welfare

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, has been trying to get the federal government to compensate First Nations children since 2007. (Simon Gohier/CBC)

One of the most loaded and emotional issues facing the new Justin Trudeau government on its reconciliation agenda is heading to Federal Court over the next two days.

Justice Canada lawyers are set to argue against compensating First Nations children impacted by the on-reserve child welfare system.

In September, the Canadian Human Rights Tribunal ordered Ottawa to pay $40,000 to each First Nations child affected by the on-reserve child welfare system since 2006. 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.

Ottawa has said the tribunal order could cost up to $8 billion and filed for a judicial review in October calling for the Federal Court to quash it, leading to two days of hearings beginning Monday on related legal manoeuvres.

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

Ottawa seeking stay of order

Ottawa will argue before the Federal Court on Monday that it should stay — or pause — the tribunal order until the judicial review application gets decided.

Ottawa has argued in court filings that the tribunal order was an overreach and that the original case was about systemic discrimination, which required a systemic fix, not individual compensation, which is the purview of class action law.

Justice Minister David Lametti said the federal government wants to settle the matter through negotiations. (Adrian Wyld/The Canadian Press)

The Federal Court will also hear arguments from the First Nations Child and Family Caring Society and the Assembly of First Nations against the stay, so that Ottawa will be forced to discuss how a compensation model could work.

Cindy Blackstock, who heads the First Nations Child and Family Caring Society which filed the original human rights complaint in 2007 with the support of the AFN, said the government has been aware since that time that it could face a compensation order.

“Integrity is when words have meaning and, so far, this government’s had no integrity. It has really been putting out public statements to protect itself or to get itself a pat on the back,” said Blackstock.

“Well they’ve been ordered to make change overnight and they should be complying with the law, just like everyone else does.”

The tribunal has ordered all sides in the case — Ottawa, the First Nations Child and Family Caring Society and the Assembly of First Nations — to negotiate a method for dealing with the mechanics of the compensation and present it by Dec. 10. MORE

The Federal Government Picked a Fight With First Nations Kids. Three Years and Millions in Legal Fees Later, They Lost.

‘Canada’s conduct was willful and reckless’, Human Rights Tribunal sasy as it awards First Nations kids maximum compensation


The federal government lost its three-year long battle before Canada’s Human Rights Tribunal to avoid compensating Indigenous families and youth for discrimination in Canada’s child welfare system.

F. N. Caring Society@CaringSociety

BREAKING: Another HUGE win for First Nations kids! The Canadian Human Rights Tribunal has ordered the Canadian gov’t to pay compensation to First Nations children, youth & families harmed by the child welfare system. Full ruling: 

View image on TwitterView image on TwitterView image on Twitter

The fee is to go towards compensating Indigenous families and youth harmed by the discrimination in Canada’s child welfare system or who were denied services owing to the discriminatory implementation of Jordan’s Principle.

Jordan’s principle, among other things, obligates the government to provide substantively equal access to housing, health and other services to Indigenous children and to safeguard the interests of children.

In its ruling, the tribunal found “Canada’s conduct was willful and reckless resulting in what we have referred to as a worst-case scenario under our Act.”

Cindy Blackstock

CDN Human Rights Tribunal finds Canada “wilfully and recklessly” discriminated v. First Nations children in a “worst case scenario” Awards maximum damages. Read the ruling: 
Summary of the ruling: 
More info: 

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The federal government’s legal battle has a lengthy history.

Soon after Trudeau’s Liberals formed government, the Tribunal issued a ruling that the federal government’s chronic under-funding of First Nations children on reserves was discriminatory, with 38% less being spent on kids on reserve compared to children in other communities across Canada.

The tribunal said funding for First Nations children needs to be equalized in comparison to kids elsewhere in Canada.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society which initially filed the human rights complaint, estimated compensation to First Nations kids could amount to nearly $1.7 billion.

Jorge Barrera

NEW: Ottawa must pay tens of thousands of dollars to every First Nations child who was placed in the on-reserve child welfare system, following a Friday ruling by the Canadian Human Rights Tribunal that also provides compensation to some of their parents and grandparents.

Blackstock says the federal government’s full legal costs between 2016 and 2019 are not known because the government hasn’t released that information.

“It was at least 12 million as of 2016,” Blackstock told PressProgress, referring to the 9-year-long legal battle with Harper government over her initial complaint between 2007 and 2016.

In 2017, the Liberal government decided to fight the Human Rights Tribunal’s ruling, arguing it can’t force the government to give equal funding to Indigenous kids.

In December 2017, former Justice Minister Jody Wilson-Raybould disclosed that the Liberal government spent over $800,000 in lawyer’s fees between 2016-2017 fighting the Human Rights Tribunal’s 2016 ruling to implement Jordan’s Principle.

That amount is likely larger today. MORE

Bill C-92’s Indigenous child welfare act risks continuing the status quo

Pam Palmater: There are many problems with Bill C-92, but the main problem is it does not deliver any of what was promised by the federal government.

Bill C-92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, has been heralded as a “historic turning point,” an “important first step,” a “major milestone” along with other similarly over-used and under-impressive political phrases to describe yet another top-down initiative from the federal government. While the Assembly of First Nations National Chief Perry Bellegarde (AFN) claimed that this legislation was “co-drafted” by the AFN and the federal government, that was not the case. In fact, Dr. Cindy Blackstock confirmed that First Nations did not co-draft the legislation and First Nations were not even permitted to see the second draft before it was tabled. This should be no surprise as Justice Canada does not co-draft legislation with anyone other than the French and English legislative drafters at Justice Canada — this is their long-standing practice. Bill C-92 content is glaring evidence that First Nation experts in child welfare did not hold the pen on this bill.

There are many problems with this bill, but the main problem is it does not deliver any of what was promised by the federal government. Prime Minister Trudeau’s Liberal government promised to address the “humanitarian crisis” through federal legislation that fully recognized First Nation jurisdiction in relation to child welfare; that would provide statutory funding; and would eliminate the over-representation of First Nation children in care. If this bill is not substantially amended before it is passed, it will not accomplish any of those important goals. Ultimately, it will be our children and our families on the ground — in our communities — that will pay the biggest price. The fact that the AFN is promoting this bill so strenuously, without regard for the numerous and serious concerns raised by First Nation leaders, lawyers, academics and child welfare experts, shows how disconnected they are to the crisis at hand.

Despite the many issues raised by the Assembly of Manitoba Chiefs, the First Nations Child and Family Caring Society and others, the AFN supports this bill as do the Métis National Council (MNC) and Inuit Tapiriit Kanatami (ITK). While I also have numerous, detailed concerns with the wording, structure and content of this bill, they are too many to include in this blog. What follows is a general overview of my concerns from a First Nation perspective. MORE