Ottawa mobilizes to appeal First Nations child welfare ruling, but stops litigation to resolve settlement

OTTAWA – The federal government has appealed to appeal a Federal Court ruling upholding a human rights court order on compensation for First Nations children and their families, but agreed, at the last minute, to stop their litigation in a effort to reach an agreement with all parties involved.

“In order to allow the parties time to have meaningful discussions and reach a lasting settlement, Canada, the First Nations Child and Family Care Society and the Assembly of First Nations have agreed to pause litigation over the decision. of the Canadian Court of Human Rights, “read a joint statement late Friday by the Minister of Indian Services, Patty Hajdu, the Minister of Crown and Indian Relations, Marc Miller, and the Minister of Justice, David Lametti.

“This means that while Canada filed what is known as a protection appeal from the Federal Court decision of September 29, 2021, the appeal will be put on hold and the focus will be squarely on reaching an out-of-court settlement and in the table. “

On September 29, the Federal Court dismissed Ottawa’s appeal of a 2019 Canadian Human Rights Tribunal (CHRT) ruling ordering Ottawa to pay $ 40,000, the maximum amount allowed under the Canadian Human Rights Act, to thousands of First Nations children. Their primary caregivers are also eligible for compensation, provided they have not abused the child in their care.

The compensation order is estimated to apply to up to 54,000 children removed from their homes on the reservation or in the Yukon, who were placed in care in 2006.

The order could cost the federal government billions of dollars.

It stems from another court ruling in 2016, which found Ottawa was discriminating against First Nations children by failing to fund child welfare services on reservations, compared to those offered in other parts of the country.

The 2019 court ruling also applied to those who were denied services or experienced a delay in receiving services, covered by the Jordan Principle, which prioritizes helping First Nations children over arguing about what level of government should pay.

In September, the Federal Court also dismissed government appeals over a decision on the question of who the Jordan Principle applies to, after the court ruled that the criteria should be broadened so that more children could be covered by the policy.

Late on Friday afternoon, the deadline by which the government could present its response, Ottawa filed a brief of appeal, arguing that the Federal Court erred in finding that the human rights court “acted reasonably” in a series of points related to your order of compensation for affected children and families.

The government’s new attempt to reach an out-of-court settlement means the appeal has been frozen, while Ottawa and all parties enter into private discussions starting Monday.

“We cannot discuss the financial package that has been presented. We know, and indigenous peoples know, that solving this problem will cost billions of dollars. We cannot shy away from that fact, ”Crown Indian Minister Marc Miller said at a news conference Friday night.

“People can complain about the appeal that was filed today. We fully understand it. Nobody wants to be in a position to appeal, but depending on how those discussions go, we are very prepared to eliminate it, “added Miller.

Cindy Blackstock of the First Nations Child and Family Caring Society said she was disappointed by the federal government’s appeal.

“We will not negotiate a reduction in compensation under any circumstances,” he said.

He said the pause for talks would focus on making services for children and families “equitable,” to ensure that the federal government increases funding for First Nations families.

Miller said he did not intend to reduce the amounts paid to children who were taken from their homes.

If the government implements the orders, members of other class action lawsuits representing other First Nations children’s groups would not receive compensation, Miller added.

Friday’s decision is one of the first by the federal government since Prime Minister Justin Trudeau’s new cabinet began work on the prime minister’s third term, in which reconciliation is a central priority.

The government’s 14-year court battle has been condemned by indigenous leaders, organizations and some opposition parties as evidence that Canada is not seriously committed to advancing meaningful reconciliation.

The legal battle dates back to 2007, when the First Nations Assembly and the First Nations Child and Family Care Society of Canada first filed a complaint with the Canadian Human Rights Commission, alleging systemic discrimination against children. indigenous people and their families.

While Ottawa has agreed that compensation is justified in certain cases, it has argued that the court overreached in issuing its compensation order, stating that the case was a matter of systemic discrimination, not a class action proceeding.

He also argued that the court expanded the scope of the Jordan Principle unreasonably, given that the 2007 complaint only concerned First Nations children in reserve and in the Yukon.

Ottawa has now agreed to work towards a “global resolution” by December 2021 on various issues that have been the subject of litigation.

These include providing fair compensation to affected First Nations children who were removed from their homes and affected by the “limited” scope of the Jordan Principle; achieve long-term reform of the First Nations Child and Family Services program; and funding that would support the Jordan Principle and the provision of relevant standby services.

—With files from The Canadian Press