Indigenous child-welfare battle heads to court despite calls for Ottawa to drop cases
Ottawa's controversial legal challenge of a pair of rulings involving First Nations children torn from their families by a chronically underfunded childcare system heads to Federal Court Monday, despite repeated calls for the cases to be dropped in the name of reconciliation.
The federal government is poised to argue against two Canadian Human Rights Tribunal rulings. The first awarded what amounts to billions of dollars in compensation to First Nations children inappropriately taken away from their parents after 2006, and to their parents and grandparents.
The second ruling expands Jordan's Principle to children who live off-reserve or who are not registered under the Indian Act.
Jordan's Principle is a rule stating 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. It was named after Jordan River Anderson, a boy from Norway House Cree Nation in Manitoba who died in hospital while the Manitoba and federal governments argued for five years over which who should pay for his care in a special home.
Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, which filed the original human rights complaint over 14 years ago, says the case is fundamentally about addressing harms suffered by Indigenous children who have faced systemic discrimination by Canadian child welfare policies and practices.
"Frankly it disgusts me as a citizen to think that the government is spending taxpayer money and energy fighting against little kids that they have been found to be racially discriminating against in ways that harm them, separate them from their families and, in some cases, contribute to their death," Blackstock said.
But even while Ottawa is moving forward with its legal battle challenging the tribunal's rulings -- despite repeated and growing calls to end the litigation -- Liberal cabinet ministers and Prime Minister Justin Trudeau continue to insist they are in favour of compensating Indigenous children who were harmed by what they call a "broken child care system."
Ottawa instead wants to compensate these children and their families through a settlement in two separate but related class-action lawsuits.
Indigenous Services Minister Marc Miller says such a settlement would pay out larger sums than the tribunal's maximum $40,000 award for each child, and would be able to offer compensation more proportional to the harms they endured.
"We do not deny that harm was suffered. We do not deny that the systemic discrimination exists," Miller told reporters last week.
"But it is very difficult to look at the CHRT tribunal, which can only award a maximum amount of $40,000. And it did so, we argued, in a way that wasn't proportional, in a vacuum. And that is the subject matter that will be discussed principally in the court proceedings next week."
There has been a "convenient narrative" that government is dragging First Nations kids to court and refusing to pay, Miller says. But he argues this is simply not the case.
"We have been in complete compliance with orders as they have come out," Miller said.
"We have fundamental issues with the CHRT's ruling, with its assertion of jurisdiction, without denigrating some of the great work that's been done."
The tribunal's September 2019 ruling said Ottawa "wilfully and recklessly" discriminated against Indigenous children living on-reserve by not properly funding child and family services. As a result, children were sent away from their homes, families and reserves because if they lived off-reserve, they would be covered by better-funded provincial systems. Others were removed from their families because authorities couldn't provide supports to help keep them together.
In legal factums filed in Federal Court, Ottawa is arguing the human rights tribunal "erred in law" by "improperly" turning the case into a class action by awarding individual compensation. Since there were no individual or representative complainants, but rather the Caring Society making arguments on behalf of all First Nations kids inappropriately taken into care, federal lawyers argue the tribunal did not have the authority to award individual damages.
"The tribunal is not entitled to transform a complaint of systemic discriminatory underfunding into a complaint seeking individual compensation," the government's factum says.
"Doing so is inconsistent with both the tribunal's authority to hear the complaint and its authority to remedy it."
Ottawa does not argue that systemic underfunding affected children, the factum states, arguing it is instead an issue of whether the tribunal, rather than the Federal Court, was the appropriate forum in which to award compensation to individual children and families.
In its arguments against the broadening of Jordan's Principle, the federal government argues the tribunal's ruling "transformed" Jordan's Principle from a resolution, passed in the House of Commons aimed at ensuring jurisdictional wrangling did not impact the health of First Nations children, into a legal rule to provide services to a far broader group.
Blackstock, and the Caring Society's legal factums, accuse Canada of a "colonialist" attempt to control the identity of Indigenous Peoples using the "racist" Indian Act to define status.
"The Indian Act is the same piece of legislation that forced children into residential schools and it's still on the books today," Blackstock said in an interview.
"No other child in this country has to go through a government litmus test to determine their racial identity and then be issued a card or not."
A large group of Indigenous organizations, First Nations and human rights groups have joined the Caring Society and the human rights tribunal in arguing against Ottawa's attempt to have the tribunal's ruling set aside.
Ottawa is also asking the Federal Court to send the rulings back to a differently constituted panel for re-evaluation due to what it believes was a "lack of procedural fairness" from the 2019 panel that issued the ruling for damages to be paid.
This report by The Canadian Press was first published June 13, 2021.
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
BREAKING Pearson gold heist suspect arrested after flying into Toronto from India
Another suspect is in custody in connection with the gold heist at Toronto Pearson International Airport last year, police say.
Justin and Hailey Bieber are expecting their first child together
Hailey and Justin Bieber are going to be parents. The couple announced the news on Thursday on Instagram, both sharing a video that showcases Hailey Bieber's growing belly.
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.
Debate on abortion rights erupts on Parliament Hill, Poilievre vows he won't legislate
A Conservative government led by Pierre Poilievre would not legislate on, nor use the notwithstanding clause, on abortion, his office says, as anti-abortion protesters gather on Parliament Hill.
Ontario family receives massive hospital bill as part of LTC law, refuses to pay
A southwestern Ontario woman has received an $8,400 bill from a hospital in Windsor, Ont., after she refused to put her mother in a nursing home she hated -- and she says she has no intention of paying it.
Here are the ultraprocessed foods you most need to avoid, according to a 30-year study
Studies have shown that ultraprocessed foods can have a detrimental impact on health. But 30 years of research show they don’t all have the same impact.
Miss Teen USA steps down just days after Miss USA's resignation
Miss Teen USA resigned Wednesday, sending further shock waves through the pageant community just days after Miss USA said she would relinquish her crown.
B.C. man used Bobcat as 'weapon' while chasing away homeless people, judge says
A B.C. man has been convicted of assault with a weapon after using a skid-steer Bobcat to chase two homeless people from his lawn, injuring one of them in the process.
'Nobody should be getting away with murder': Grieving mother speaks out after son killed in North Preston, N.S.
A grieving mother is speaking out after her 36-year-old son was shot and killed in North Preston, N.S., Wednesday night.
Local Spotlight
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.
'It looked so legit': Ontario man pays $7,700 for luxury villa found on Booking.com, but the listing was fake
An Ontario man says he paid more than $7,700 for a luxury villa he found on a popular travel website -- but the listing was fake.