Judge upholds human rights compensation order for First Nations kids

Sep 29, 2021

Canada has lost every battle so far in 14-year-old court fight that isn’t over yet

The Federal Court has upheld a trailblazing Canadian Human Rights Tribunal order requiring Ottawa to pay potentially billions of dollars to thousands of First Nations kids and families who suffered discrimination by the state.

Justice Paul Favel also upheld a separate tribunal order that said the federal government must consider some non-status First Nations kids eligible for the Jordan’s Principle program.

Favel, a member of Poundmaker Cree Nation in Saskatchewan, dismissed the two court challenges launched by the Canadian government. He said Ottawa failed to show the orders were unreasonable, adding that the case has resulted in significant good work being done.

“However, the good work of the parties is unfinished,” Favel wrote in his 111-page ruling released Wednesday. “The parties must decide whether they will continue to sit beside the trail or move forward in this spirit of reconciliation.”

The Canadian government requested judicial reviews of both orders and spent a week in June in front of Favel, trying to convince him to quash them.

Ottawa’s opponents urged him to affirm the potentially precedent-setting rulings.

Reached by phone after the decision came down, Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, said it was yet another win for First Nations kids. She urged the Justice Department not to appeal.

“These families have been through enough,” she said. “It’s time for them to put down their sword.”

14-year-old fight not over yet

The original human rights complaint was lodged by Blackstock and the Assembly of First Nations (AFN) in 2007.

The organizations argued Ottawa was racially discriminating against First Nations children by underfunding child welfare on reserves. After some initial legal wrangling, the case was heard in 2013.

“Today’s decision acknowledges the personal harm caused by Canada’s discrimination and affirms that First Nations deserve justice,” the AFN said via tweet. “This monumental decision comes one day before Orange Shirt Day, and we hope that Canadians stand with us in recognizing that #EveryChildMatters.”

The tribunal issued its landmark ruling in favour of the caring society and AFN in 2016. The panel said Canada was racially discriminating against 163,000 First Nations kids by knowingly underfunding the system and refusing to implement Jordan’s Principle.

Jordan’s Principle states that the level of government first contacted by a family seeking access to an essential health product or social service must provide it without delay and figure out the bill later. It exists to prevent jurisdictional bickering between Ottawa and the provinces on who will pay for the services.

The tribunal noted that Canada’s funding scheme created a “perverse incentive” for agencies to scoop kids from their homes. Ottawa would fully reimburse agencies for the costs of apprehending and maintaining kids in foster care but provided only a fixed pot of cash for prevention services.

Read more:

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In 2019, the tribunal ruled the discrimination was “wilful and reckless.” It ordered Canada to pay $40,000 — the maximum amount under federal human rights law — to kids unnecessarily taken from their homes or denied access to essential services.

Canada’s lawyer argued the tribunal had overstepped its jurisdiction and moved the goal posts on Ottawa. Chief general counsel Robert Frater said the order was flawed and lacked sufficient proof of harm.

Frater said a case about systemic discrimination should require systemic reform, not individual payouts. The issue of compensation should be settled by a class action, he said.

The AFN’s lawyer said his arguments were “callous” and “heartless.”

Favel said the tribunal did not exceed its jurisdiction under the Canadian Human Rights Act. He noted Canada has had numerous chances to appeal previous orders, but did not.

“Nothing changed,” he wrote. “All of this was conducted in accordance with the broad authority the Tribunal has under the CHRA.”

Decisions released a day before new holiday

The tribunal ruled in 2020 that the federal government was still not applying Jordan’s Principle to all First Nations kids. The panel ordered Canada to expand the program to non-status kids who live off reserve if they meet certain criteria.

In this appeal Frater again argued that the tribunal had exceeded its jurisdiction. He said the panel had started writing government policy, which is the domain of elected authorities and not administrative tribunals.

His opponents from the caring society, AFN and other organizations slammed Canada again for relying on the “racist and colonial” Indian Act as the core of its argument.

Favel again said the tribunal did not overstep its jurisdiction and did not deny Canada procedural fairness.

Canada “was afforded numerous opportunities to challenge the various decisions but did not,” Favel wrote. “No one was taken by surprise.”

The appeals were heard despite a motion that passed unanimously in the House of Commons urging Canada not to proceed. Prime Minister Justin Trudeau, now newly re-elected, abstained from voting on the motion and so did his cabinet.

The rulings come a day before the first National Day for Truth and Reconciliation.

The Truth and Reconciliation Commission’s first calls to action — delivered six years ago — recommended Ottawa act immediately to reduce the number of First Nations kids in state custody.

The judge offered some general thoughts on reconciliation in his reasons.

“Reconciliation is, in essence, a continuation of the nation-building exercise of this young country in the sense that the foundational relationships between Indigenous people and the Crown continue to evolve,” he wrote.

“Reconciliation, as nation-building, can also result in the re-establishment, on a proper foundation, of broken or damaged relationships between Indigenous people and Canada in the manner suggested by the Supreme Court in its numerous judgments.”

Canada has lost every single round so far in the 14-year-old legal battle that isn’t over yet. Favel stressed the importance of negotiations moving forward.

Favel’s decision can be challenged in the Federal Court of Appeal and then potentially in the Supreme Court of Canada.

Ottawa also applied for a third judicial review of yet another tribunal order on Sept. 24.

[Top photo: Advocates for First Nations kids have secured yet another victory in an ongoing human rights complaint about systemic discrimination. Photo: APTN]