Federal Court upholds landmark compensation order for Indigenous children

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Ottawa’s request for a judicial review of two Canadian Human Rights Tribunal rulings concerning First Nations children has been rejected, a decision released on the eve of the first federal National Day for Truth and Reconciliation that could leave the federal government liable for billions of dollars in compensation.

In 2019, the tribunal found that Ottawa had wilfully and recklessly discriminated against Indigenous children on reserve by failing to provide funding for child and family services. It also ordered in its ruling that the government must provide up to $40,000 to First Nations children who were unnecessarily taken into care on or after Jan. 1, 2006. It added that its orders also cover parents or grandparents and children denied essential services.

A second tribunal decision, made last year, focused on who is eligible among First Nations children to access services.

Federal Court Justice Paul Favel said in his ruling on Wednesday that the federal government had not succeeded in establishing that the compensation decision by the rights tribunal was unreasonable.

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“The tribunal … reasonably exercised its discretion under the CHRA [Canadian Human Rights Act] to handle a complex case of discrimination to ensure that all issues were sufficiently dealt with and that the issue of compensation was addressed in phases,” he wrote.

The tribunal can legally decide whether a person or organization has engaged in a discriminatory practice.

First Nations child advocate Cindy Blackstock, who along with the Assembly of First Nations launched the original complaint before the human-rights tribunal, told The Globe and Mail on Wednesday that she was “overjoyed.”

The survivors of the schools will “finally be honoured” on Thursday and the court’s decision “helps end the injustices to their grandchildren and makes those calls to action real.”

Ms. Blackstock, executive director of the First Nations Child and Family Caring Society, said the federal government should not appeal the decision. Ottawa now needs to “put down their sword and actually do the right thing and end this fight against these kids and their families.”

RoseAnne Archibald, the AFN National Chief, said it is a “victory for our children and families that the Federal Court of Canada has dismissed Canada’s application for judicial review.

“We have repeatedly made a reasonable and fair request that Canada stop fighting our kids in court not only for the sake of truth and reconciliation but also for the healing path forward,” Ms. Archibald said.

At the time of the decision, the AFN said that more than 54,000 First Nations children could be eligible for compensation.

In its legal application for a judicial review, Ottawa said it acknowledged the finding of systemic discrimination and it did not “oppose the general principle that compensation to First Nations individuals affected by a discriminatory funding model can be made in appropriate circumstances.”

But it said the government saw grounds for the application based on its belief that the tribunal erred in its decision, including on the order of monetary compensation to First Nations children, parents and grandparents under the Canadian Human Rights Act.

The federal government has 30 days to determine if it will appeal.

In an interview, Indigenous Services Minister Marc Miller said Wednesday that officials in his department and the Justice Department are carefully reviewing the decision from the court. He also said that the Crown advanced a number of legitimate arguments and it is clear that the court has disagreed.

Mr. Miller also said there are opportunities to keep moving forward to achieve compensation for children who were removed as a result of a broken, discriminatory child-welfare system.

The minister said officials at his department have moved forward with a model that would seek to compensate those who would have suffered that discrimination within the context of the tribunal’s decision. He highlighted that two class-actions lawsuits have been filed as well on providing compensation.

The government has told the parties it will engage in discussions, out of the public eye, to compensate children and not re-traumatize them, Mr. Miller added.

A second order from the tribunal, in 2020, related to Jordan’s Principle, named after five-year-old Jordan River Anderson, who died in hospital in 2005 after a lengthy battle between the federal and Manitoba governments over home-care costs. It is designed to ensure First Nations children can access services and supports when they need them. It requires that children get access to services without delays caused by jurisdictional issues.

Last year, the tribunal found that criteria for Jordan’s Principle could include a child who is registered or eligible to be registered under the Indian Act, a child who has a parent or guardian registered under the Indian Act, a child recognized by their community for the purposes of Jordan’s Principle and a child who is ordinarily a resident on reserve.

Justice Favel said he also found that the federal government “has not succeeded in establishing that the eligibility decision is unreasonable.”

Justice Favel, a member of Poundmaker Cree Nation in Saskatchewan, used a personal touchstone from his own community to reflect on reconciliation. He cited the words of the late Chief Poundmaker, on how trails that aren’t nurtured become grown over and impossible to find. Chief Poundmaker was charged with treason in 1885, accused of fomenting violence in the Northwest Rebellion involving First Nations and Métis peoples, and convicted and jailed. Prime Minister Justin Trudeau pardoned him in 2019.

Ketty Nivyabandi, the secretary-general of Amnesty International Canada’s English-speaking branch, said the decision handed down a day before the first National Day for Truth and Reconciliation signals a step toward justice for First Nations children.

Amnesty International intervened in this case at the request of the First Nations Child and Family Caring Society, arguing that the CHRA must be interpreted consistently with Canada’s international obligations.

“We urge the federal government to act without delay and properly compensate the First Nations children, youth and families who Canada has harmed,” she said.

In June, members of all parties passed a motion in the House of Commons that called for the federal government to end legal actions on the two human-rights tribunal orders.

The motion, put forward by the NDP, said the government should also accelerate implementing the calls to action from the Truth and Reconciliation Commission issued in 2015, including to provide “immediate funding for further investigation into the deaths and disappearances of children at residential schools.”

Its passage, by a vote of 271-0, was seen as an expression of opinion from the House but not binding.

Ontario NDP MP Charlie Angus said in a statement Wednesday that the court’s findings were “an absolute victory” for First Nations children.

He also said it is imperative that the federal government takes clear steps toward truth, justice and reconciliation for all Indigenous people given that Thursday is the first ever National Day for Truth and Reconciliation.

Jamie Schmale, an Ontario Conservative MP, said Indigenous peoples have been waiting for the Liberal government to deliver on promises of support and progress on reconciliation but that the government has instead engaged in a “a shameful court battle against Indigenous children.”

With reports from Sean Fine in Toronto

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