AFN slams Ottawa for 'heartless' legal challenge of First Nations child compensation
he Assembly of First Nations is chastising the federal government's legal challenge of a ruling to compensate First Nations children who were unnecessarily taken into foster care as “callous” and “heartless.”
Lawyers arguing on behalf of the AFN were in Federal Court Tuesday, arguing against Ottawa's attempts to set aside a 2019 Canadian Human Rights Tribunal decision that awarded $40,000 to each Indigenous child who was removed from their families and communities before 2006 by a systemically underfunded child-welfare system.
The ruling also said the payments should also be made to their caregivers, whether it be their parents and grandparents, as long as they were not found to have been abusive.
AFN lawyer David Nahwegahbow, whose focus in the hearings is largely to counter Canada's objection to awarding compensation to parents and caregivers, began his arguments today with a broad swipe at the federal government for forcing the tribunal's compensation ruling to a judicial review.
He pointed to the tribunal's landmark “merits decision” in 2016, which found Canada guilty of systemic discrimination against Indigenous children through the First Nations child welfare program and the government's refusal to implement Jordan's Principle.
This principle is named after young Jordan River Anderson from Norway House Cree Nation in Manitoba who died in hospital while the provincial and federal governments argued for years over which who should pay for his specialized care. After his death, the House of Commons unanimously passed a resolution saying that when different levels of government disagree about who's responsible for providing services to First Nations children, they must help a child in need first and argue over the bills later.
Since the initial human rights complaint on behalf of First Nations kids in care was filed by the First Nations Child and Family Caring Society and the AFN in 2008, and repeatedly since, Canada has tried to block it or seek appeals and has been issued a number of non-compliance orders by the Canadian Human Rights Tribunal, all in an attempt to dodge paying damages, Nahwegahbow argued.
“Canada has engaged in a campaign of obstruction, delay, deflection and non-compliance in the legal proceedings alongside ongoing and knowing discriminatory conduct in its operations and utterly inconsistent political messaging to the Canadian and the First Nations public,” he told the court Tuesday.
He took the court through order after order issued by the tribunal over the last five years, each spelling out its findings that while Canada may argue child welfare services are carried out by the provinces and territories, these services for Indigenous children and youth were funded by the federal government and its funding mechanisms were highly discriminatory. The rulings spell out ways in which Canada's funding mechanisms actually incentivized removing Indigenous kids from their families, as better services and more funding to help them was only made available by Ottawa once children were taken into care.
“Canada's conduct was devoid of caution, with little to no regard to the consequences of its behaviour toward First Nations children and families,” the tribunal's 2019 order states.
“Canada focused on financial considerations rather than on the best interests of First Nations children and respecting their human rights.”
Nahwegahbow argues this summary from the tribunal is the “only explanation” the AFN believes can be taken from Ottawa once again trying to appeal a tribunal decision awarding money to children and their families harmed by Canada's policies.
“We have also to remember that all this comes at a time when First Nations people, residential school survivors, Canadians and people all over the world are being reminded about the horrors of Indian Residential School,” Nahwegahbow added.
“It is frankly heartless for Canada to be challenging the tribunal's decisions, particularly the compensation decision, on the basis there was insufficient evidence to establish harms resulting from the removal of First Nations children from their families, homes and communities.
“How can they question that removing children from families causes harm?”
The tribunal's 2019 ruling said Ottawa “wilfully and recklessly” discriminated against Indigenous children living on-reserve by not properly funding child and family services and awarded each child, and their parents or grandparents, $40,000 in compensation.
The federal government's lawyer, Robert Frater, told Federal Court Justice Paul Favel Monday the government contends the tribunal's award was far too broad and sweeping.
Frater argues the tribunal did not have the authority to award individual damages because it did not hear any evidence or testimony from children or their families to justify individual compensation.
“The compensation decision was inconsistent with the nature of the complaint, the particulars to that complaint and the evidence, and thus exceeded the tribunal's limited statutory jurisdiction,” he told the court.
“There are many examples of irrationality in the tribunal's reasoning process. Seriously flawed reasoning led to unreasonable outcomes.”
He also argues the tribunal's decision to award its maximum amount possible does not take into account that some children may have suffered more harm than others.
Sarah Clarke, representing the First Nations Child and Family Caring Society, who wrapped her arguments today, told the court Monday she believes Canada harmed Indigenous children taken into care, but is “shamefully” trying to avoid paying damages.
She said the discrimination First Nations children experienced from an underfunded and poorly designed system warrants the damages awarded by the tribunal.
This report by The Canadian Press was first published June 15, 2021.
Correction
This is a corrected story. An earlier story misspelled Assembly of First Nation lawyer David Nahwegahbow's name.
IN DEPTH
Budget 2024 prioritizes housing while taxing highest earners, deficit projected at $39.8B
In an effort to level the playing field for young people, in the 2024 federal budget, the government is targeting Canada's highest earners with new taxes in order to help offset billions in new spending to enhance the country's housing supply and social supports.
'One of the greatest': Former prime minister Brian Mulroney commemorated at state funeral
Prominent Canadians, political leaders, and family members remembered former prime minister and Progressive Conservative titan Brian Mulroney as an ambitious and compassionate nation-builder at his state funeral on Saturday.
'Democracy requires constant vigilance' Trudeau testifies at inquiry into foreign election interference in Canada
Prime Minister Justin Trudeau testified Wednesday before the national public inquiry into foreign interference in Canada's electoral processes, following a day of testimony from top cabinet ministers about allegations of meddling in the 2019 and 2021 federal elections. Recap all the prime minister had to say.
As Poilievre sides with Smith on trans restrictions, former Conservative candidate says he's 'playing with fire'
Siding with Alberta Premier Danielle Smith on her proposed restrictions on transgender youth, Conservative Leader Pierre Poilievre confirmed Wednesday that he is against trans and non-binary minors using puberty blockers.
Supports for passengers, farmers, artists: 7 bills from MPs and Senators to watch in 2024
When parliamentarians return to Ottawa in a few weeks to kick off the 2024 sitting, there are a few bills from MPs and senators that will be worth keeping an eye on, from a 'gutted' proposal to offer a carbon tax break to farmers, to an initiative aimed at improving Canada's DNA data bank.
Opinion
opinion Don Martin: Gusher of Liberal spending won't put out the fire in this dumpster
A Hail Mary rehash of the greatest hits from the Trudeau government’s three-week travelling pony-show, the 2024 federal budget takes aim at reversing the party’s popularity plunge in the under-40 set, writes political columnist Don Martin. But will it work before the next election?
opinion Don Martin: The doctor Trudeau dumped has a prescription for better health care
Political columnist Don Martin sat down with former federal health minister Jane Philpott, who's on a crusade to help fix Canada's broken health care system, and who declined to take any shots at the prime minister who dumped her from caucus.
opinion Don Martin: Trudeau's seeking shelter from the housing storm he helped create
While Justin Trudeau's recent housing announcements are generally drawing praise from experts, political columnist Don Martin argues there shouldn’t be any standing ovations for a prime minister who helped caused the problem in the first place.
opinion Don Martin: Poilievre has the field to himself as he races across the country to big crowds
It came to pass on Thursday evening that the confidentially predictable failure of the Official Opposition non-confidence motion went down with 204 Liberal, BQ and NDP nays to 116 Conservative yeas. But forcing Canada into a federal election campaign was never the point.
opinion Don Martin: How a beer break may have doomed the carbon tax hike
When the Liberal government chopped a planned beer excise tax hike to two per cent from 4.5 per cent and froze future increases until after the next election, says political columnist Don Martin, it almost guaranteed a similar carbon tax move in the offing.
CTVNews.ca Top Stories
Spectacular aurora light show to be seen across Canada Friday night
A rare and severe solar storm is expected to bring spectacular displays of the northern lights, also known as aurora borealis, across much of Canada and parts of the United States on Friday night.
Town of Fort Nelson, B.C., ordered to evacuate due to wildfire
The entire town of Fort Nelson, B.C., as well as the nearby Fort Nelson First Nation, has been ordered to evacuate due to an out-of-control wildfire.
Bouchard lifts Edmonton Oilers to 4-3 overtime win over Canucks in Game 2
Evan Bouchard scored 5:38 into overtime and the Edmonton Oilers bounced back for a 4-3 win over the Vancouver Canucks in the second round of the Stanley Cup playoffs on Friday.
McGill University seeks emergency injunction to dismantle pro-Palestinian encampment
McGill University has filed a request for an injunction to have the pro-Palestinian encampment removed from its campus.
Which Canadian cities have the highest and lowest grocery prices?
Where you live plays a big factor in what you pay at the grocery store. And while it's no secret the same item may have a different price depending on the store, city or province, we wanted to see just how big the differences are, and why.
Swarm of 20,000 bees gather around woman’s car west of Toronto
A swarm of roughly 20,000 bees gathered around a woman’s car in the parking lot of Burlington Centre.
Video shows naked raccoon catching B.C. family by surprise
When Marvin Henschel spotted a strange and hairless creature wandering through a front lawn in B.C.'s Lower Mainland, he could barely believe his eyes.
Barron Trump declines to serve as an RNC delegate
Former U.S. President Donald Trump's youngest son, Barron Trump, has declined to serve as a delegate at this summer’s Republican National Convention, according to a senior Trump campaign adviser and a statement from Melania Trump's office.
Out-of-control wildfire prompts evacuation alert for Fort McMurray, Saprae Creek Estates Friday night
An evacuation alert was issued for two Wood Buffalo communities Friday night, as crews battled an out-of-control wildfire near Fort McMurray.
Local Spotlight
From outer space? Sask. farmers baffled after discovering strange wreckage in field
A family of fifth generation farmers from Ituna, Sask. are trying to find answers after discovering several strange objects lying on their land.
Wilfrid Laurier football player drafted despite only playing 27 games in his entire life
A Listowel, Ont. man, drafted by the Hamilton Tigercats last week, is also getting looks from the NFL, despite only playing 27 games of football in his life.
Toronto-area dessert shop featured by Keith Lee forced to move after zoning complaint
A small Ajax dessert shop that recently received a glowing review from celebrity food critic Keith Lee is being forced to move after a zoning complaint was made following the social media influencer’s visit last month.
'Oh Crap!' New exhibit at Canada Science and Technology Museum explores human waste
The Canada Science and Technology Museum is inviting visitors to explore their poop. A new exhibition opens at the Ottawa museum on Friday called, 'Oh Crap! Rethinking human waste.'
Regina police hope new biometric monitoring system will save lives in detention facility
The Regina Police Service says it is the first in Saskatchewan and possibly Canada to implement new technology in its detention facility that will offer real-time monitoring of detainees’ vital health metrics.
Vancouver and Edmonton's mayors bet on who will win Round 2 of the playoffs. Here's what's at stake
The stakes have been set for a bet between Vancouver and Edmonton's mayors on who will win Round 2 of the Stanley Cup playoffs.
'No other life taken': Mother leads ATV helmet drive to honour daughter's legacy
A grieving mother is hosting a helmet drive in the hopes of protecting children on Manitoba First Nations from a similar tragedy that killed her daughter.
Northern Ont. woman makes 'eggstraordinary' find
A chicken farmer near Mattawa made an 'eggstraordinary' find Friday morning when she discovered one of her hens laid an egg close to three times the size of an average large chicken egg.
P.E.I. lighthouse, N.B. river spotlighted in Canada Post series
A P.E.I. lighthouse and a New Brunswick river are being honoured in a Canada Post series.