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
Former prime minister Brian Mulroney dies at 84
Former Canadian prime minister and Conservative stalwart Brian Mulroney has died at age 84. Over his impressive career, the passionate and ambitious politician, businessman, husband, father, and grandfather left an unmistakable mark on the country.
Who is supporting, opposing new online harms bill?
Now that Prime Minister Justin Trudeau's sweeping online harms legislation is before Parliament, allowing key stakeholders, major platforms, and Canadians with direct personal experience with abuse to dig in and see what's being proposed, reaction is streaming in. CTVNews.ca has rounded up reaction, and here's how Bill C-63 is going over.
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.
The first public hearings on foreign interference in Canada have begun. What you need to know
The public hearings portion of the federal inquiry into foreign interference in Canadian elections and democratic institutions got underway this week. Heading into this process, here's what you need to know.
TREND LINE What Nanos' tracking tells us about Canadians' mood, party preference heading into 2024
Heading into a new year, Canadians aren't feeling overly optimistic about the direction the country is heading, with the number of voters indicating negative views about the federal government's performance at the highest in a decade, national tracking from Nanos Research shows.
Opinion
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.
opinion Don Martin: Pierre Poilievre's road to apparent victory will soon start to get rougher
Pierre Poilievre and his Conservatives appear to be on cruise control to a rendezvous with the leader's prime ministerial ambition, but in his latest column for CTVNews.ca, Don Martin questions whether the Conservative leader may be peaking too soon.
opinion Don Martin: The Trudeau lessons from Brian Mulroney's legacy start with walking away
Justin Trudeau should pay very close attention to the legacy treatment afforded former prime minister Brian Mulroney, who died on Thursday at age 84, writes columnist Don Martin.
opinion Don Martin: ArriveCan debacle may be even worse than we know from auditor's report
It's been 22 years since a former auditor general blasted the Chretien government after it 'broke just about every rule in the book' in handing out private sector contracts in the sponsorship scandal. In his column for CTVNews.ca, Don Martin says the book has been broken anew with everything that went on behind the scenes of the 'dreaded' ArriveCan app.
opinion Don Martin: Despite his horrible year, Trudeau's determined to roll the dice again
In his column for CTVNews.ca, political commentator Don Martin says you can't help but admire Justin Trudeau's defiance and audacity of hope despite his 'horrible' 2023, as it appears Trudeau is insisting on leading the Liberals into the next federal election.
CTVNews.ca Top Stories
'He didn't want to die': Family of Calgary man killed in standoff speaks out
Family of a Calgary man killed after a 30-hour standoff with police last week are speaking out, sharing details of the tense and heart-wrenching experience.
Toronto family doctor who called patient's body 'perfect' suspended for 3 months: tribunal
A family doctor in Toronto has been suspended for three months after a disciplinary tribunal found that he failed to follow proper protocols while examining a patient's breasts and made inappropriate comments about her body.
Ohio mom who left toddler alone 10 days when she went on vacation pleads guilty to aggravated murder
An Ohio mother whose 16-month-old daughter died after being left home alone in a playpen for 10 days last summer while she went on vacation was sentenced Monday to life in prison with no chance of parole.
Canadian commander of volunteer fighter group dies in Ukraine
A Canadian-born commander of the so-called Norman Brigade, a volunteer fighting group in Ukraine, has died.
5 charged in Calgary kidnappings that targeted women
Calgary police have charged five men in a pair of kidnappings last year that targeted innocent victims.
Demand soars for solar eclipse glasses in Canada. Are they worth buying?
The demand for total solar eclipse glasses used to safely view the rare celestial event has been ramping up as sellers, along with astronomy and eye-care experts in Canada, warn that viewing the eclipse with the naked eye is dangerous.
Woman, 18, killed by co-worker's vehicle on Highway 1 in Moose Jaw
Moose Jaw police say an 18-year-old woman who was at work has died from injuries she sustained in a collision with a vehicle being driven by her co-worker last Thursday.
Retired teacher pleads guilty to paying for sex with 15-year-old in Collingwood, Ont.
In a Barrie courtroom on Monday, a retired high school teacher from the Niagara Region pleaded guilty to sexual touching and obtaining sexual services from a 15-year-old boy in Collingwood in 2021.
MPs to vote on NDP motion calling on Canada to recognize Palestinian statehood
Members of Parliament will vote Monday on a motion from the federal New Democrats, calling on Canada to recognize the 'State of Palestine,' among a range of other calls to action in regards to the ongoing Israel-Gaza conflict.