OTTAWA - The government has filed an appeal of a recent Canadian Human Rights Tribunal ruling, which ordered the government to compensate First Nations children who had been discriminated against by the government's child welfare system.
This means the more than 50,000 children who were taken from their homes or denied welfare services, who the government was ordered to compensate $40,000, may not receive anything.
The application for judicial review asks that the tribunal's decision be set aside and the claim for monetary compensation be dismissed. It also asks for the matter to be referred to the tribunal for a “determination in accordance with the directions of this Court.”
Finally, it asked for "further and other relief" that the Court might deem appropriate.
"Canada's conduct was wilful and reckless resulting in what we have referred to as a worst-case scenario under our Act," the CHRT stated in its initial ruling, released Sept. 6.
The $40,000 compensation order was the maximum amount allowable under the CHRT. The compensation also applies to parents and grandparents of children apprehended before 2006.
The government had until the end of the day on Oct. 7 to file an appeal. They filed before the deadline, however, making their appeal known at mid-day on Friday.
The appeal claims the tribunal erred in six different ways, including in ordering monetary compensation for First Nations Children, their parents or grandparents under the Canadian Human Rights Ac , both "for the necessary or unnecessary removal of children in the child welfare system" and "for children who experienced gaps, delays and denials of services that would have been available under Jordan’s principle."
They say the error lies in the "nature of the complaint before the Tribunal and the evidence presented."
The appeal also says the tribunal erred in determining that "discrimination is ongoing" with respect to funding for child and family services on reserve and in the Yukon, and in establishing a compensation payment process that requires that the tribunal retain jurisdiction, allowing them to establish new categories for "persons who may receive compensation."
These errors, according to the filing, "were made without jurisdiction or beyond the Tribunal's jurisdiction, denied procedural fairness to the Applicant, erroneously relied on factual material, erroneously interpreted provisions of the Canadian Human Rights Act or were otherwise unreasonable."
Hours after the appeal was filed, Liberal Leader Justin Trudeau explained his government’s decision during a campaign stop in Saint-Anaclet-de-Lessard, Que. He repeatedly said they agree with the tribunal’s finding that individuals who were harmed deserve to be compensated.
“We recognize the harm that’s been done and we fully accept the need for compensation,” he said. “But the question is how to do that? We need to have conversations with partners, we need to have conversations with communities, with leaders, to make sure we’re getting that compensation right.”
Because of the election, Trudeau said the government wouldn’t have time to hold those discussions with Indigenous groups, which is why they appealed the ruling. When pressed by reporters as to why they asked for a judicial review instead of requesting an extension, Trudeau repeated that they needed more time.
“The decision by the Human Rights Tribunal came down mere days before the actual writ got dropped and the Canadian Human Rights Tribunal expects us to bring in a plan of action by December,” he explained. “That is simply not practical, not possible given the electoral context we’re in. That is why we need to have more time to be able to have these conversations.”
Indigenous Services Minister Seamus O'Regan defended the decision to appeal in an emailed statement to CTV News on Friday.
“The recent ruling from the Canadian Human Rights Tribunal is significant and raises important questions and considerations such as who is to be compensated and the role of the Tribunal,” he wrote. “In order to give us both clarity on the ruling and time to have these conversations with our partners, which are not possible during an election, we are seeking a judicial review and stay.”
O’Regan said the government believes that “collaboration, rather than litigation is the best way to right historical wrongs and advance reconciliation with Indigenous peoples.”
The minister added that they’re committed to engaging in “discussions around compensation” for impacted individuals.
“If re-elected, we will continue the conversation on compensation in a fair and equitable way that focuses on bringing healing and recognition of the harms suffered for First Nations children.”
When the Sept. 6 ruling first came down, it was applauded by First Nations groups. The Assembly of First Nations National Chief Perry Bellegarde was among those welcoming the initial ruling.
"This is about our children, their safety, their right to be with their families, kin and communities and their right to quality of care. No government should be fighting these fundamental values," Bellegarde said in a press release.
On Friday, however, Bellegarde took a decidedly different tone when he expressed his reaction to the government’s decision to appeal. In a statement, the chief said he was “extremely disappointed” to hear of the request for a judicial review.
“This is beyond unacceptable. The Government of Canada is once again preparing to fight First Nations children in court,” he said. “I’ve connected with Minister Seamus O’Regan to share my deep disappointment.”
Bellegarde said the CHRT found the government racially discriminated against First Nations children in a “willful” and “reckless” manner.
“To appeal this CHRT ruling, which was meant to provide a measure of justice for First Nations children in care, is hurtful and unjust,” he said.
The ruling comes just weeks before the Oct. 21 federal election. The issue has been raised on the campaign trail, with Conservative Leader Andrew Scheer saying yesterday that he would seek a judicial review of the compensation, if he were in power.
NDP Leader Jagmeet Singh weighed in shortly after the news broke. He said Prime Minister Justin Trudeau "should have accepted this ruling."
"Mr. Trudeau has failed Indigenous kids once again," said Singh.
With files from CTV's Sarah Turnbull.
