Feds appeal First Nations child compensation order but launch resolution talks

Ottawa -

The federal government will appeal a Federal Court decision to uphold a Canadian Human Rights Tribunal (CHRT) order requiring Ottawa compensate First Nations children, but plans to resolve the dispute outside of court.

Late Friday evening, the government filed a notice of appeal arguing the Federal Court erred in finding that the CHRTC acted “reasonably” by ordering complete compensation for children, their parents, or grandparents for being unnecessarily removed from their communities since 2006.

Moments later, Indigenous Services Minister Patty Hajdu published a statement noting that Ottawa and the Indigenous groups on the other side of the lawsuit have agreed to “sit down immediately” to reach a resolution by December 2021.

The appeal is active but the government will pause the litigation for two months.

The two sides will look to agree on: providing “fair, equitable compensation” to First Nations children on-reserve and in the Yukon who were removed from their homes by child and family services agencies; achieving “long-term reform” of the First Nations and Family Service program; and, delivering funding for the “purchase and/or construction of capital assets” that support the delivery of child and family services.

Last month, Federal Court Justice Paul Favel ruled that Ottawa had failed to demonstrate that the tribunal’s ruling to 2006 was unreasonable.

In 2019, the tribunal argued Ottawa had “willfully and recklessly” discriminated against First Nations children living on reserve by underfunding child and family services. This led to children being taken from their communities and put into state programs.

It asks that Ottawa pay $40,000, the maximum the tribunal can award, to each child as well as their parents and grandparents.

The government is not appealing a second CHRT ruling that expands on Jordan’s Principle – a legal requirement of the federal government to provide necessary services to children, should intergovernmental disputes get in the way of proper funding.

Earlier on Friday, Prime Minister Justin Trudeau hinted that a decision would be coming down the pipe, and reinforced that the government will still compensate First Nations children.

“We are committed to compensating Indigenous people who were harmed as children in child and family services. And further, we are committed to working with partners to end this harmful system and to make sure that kids at risk get to stay in their communities, in their culture, and be cared for by their communities. That is the path forward on reconciliation and that is what we are pledged to do,” he said speaking in Holland.

Hajdu, Attorney General David Lametti and Crown-Indigenous Relations Minister Marc Miller held a press conference announcing the move to enter into a negotiation period.

Miller said the appeal was made because the government is concerned about imposing a “one-size-fits-all approach” but noted Ottawa remains committed to reach a resolution.

“There’s work to be done outside the courts. Long-term reform, self-determination discussions, this is what we will be doing moving forward starting Monday,” he said.

Asked whether the federal government can guarantee the $40,000 requested by the CHRT, Miller said there isn’t an intention to reduce the amount.

“We have said from the get-go that we want to compensate those children. This is a broad and sweeping decision by the Canadian Human Rights Tribunal and we’ve said it before, [we have] certain jurisdictional issues with it. That should not prevent us from moving forward on a global resolution,” he said.

He added that implementing that specific order wouldn’t establish systemic change.

“It would advance very little on long-term reform,” he said.

“What we’re doing today, as opposed to the past, is filing a notice of appeal but what we’re not doing as a government is spending time and energy taking adversarial positions.”

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, was among the parties who filed the initial human rights complaint. Late Friday, she said she’s waiting to see words put into action.

“The government has the money to be able to remedy these injustices and we have the solutions so they just need to implement, they just need to do that,” Blackstock, told CTV News Channel.

If the negotiations don’t end in a resolution after two months, the appeal will proceed in an expedited fashion.

“While they’re waiting, they’re still being hurt,” Blackstock said of the victims.

“That's what is really the heartbreak for me is that when we started this case in 2007, with the Assembly of First Nations, I was convinced that the government would finally take it seriously and they would do the right thing.

“Had the government implemented the solutions back then in 2007, they wouldn't owe any compensation because there would have been no victims.”

Assembly of First Nations Chief RoseAnne Archibald released a statement Friday night.

“While we are disappointed that Canada continues to pursue an appeal, we are encouraged that a deadline will be set to negotiate a settlement of this matter,” she said. “Our priority remains to ensure that our children and families are supported to thrive. First Nations children and families have waited far too long for justice and healing. In order to walk the healing path together, Canada must acknowledge the harms that discrimination has had on our children and families. Our collective goal is to ensure that discrimination ends and never happens again.

“Our children are precious and our families matter.”

While we are disappointed that Canada continues to pursue an appeal, we are encouraged that a deadline will be set to negotiate a settlement of this matter. @MarcMillerVM @PattyHajdu @DavidLametti #EveryChildMatters @cblackst#cdnpoli pic.twitter.com/k0a7hqOZNe

— RoseAnne Archibald (@ChiefRoseAnne) October 29, 2021