Children play in the water filled ditches in the northern Ontario First Nations reserve in Attawapiskat, Ont., on Tuesday, April 19, 2016. The Liberal government is expected to reveal today whether it will continue fighting an order directing it to compensate First Nations children removed from their homes. THE CANADIAN PRESS/Nathan Denette

Ottawa appeals First Nations child welfare ruling but launches talks with parties

Ottawa appeals First Nations child welfare ruling but launches talks with parties

OTTAWA — The federal government is appealing a ruling ordering Ottawa to compensate First Nations children removed from their homes, but the parties have agreed to keep talking about next steps in the hope they can reach an agreement outside court.

The government filed the notice of appeal late Friday before the Federal Court of Appeal closed.

In 2016, the Canadian Human Rights Tribunal found Ottawa discriminated against First Nations children by knowingly underfunding child and family services for those living on reserve.

Litigants in the case first brought forward in 2007, say this led to thousands of kids being apprehended from their families and enduring abuse and suffering in provincial foster care systems.

The tribunal said each First Nations child, along with their parents or grandparents, who were separated because of this chronic underfunding were eligible to receive $40,000 in federal compensation, which was the maximum amount it could award.

It has been estimated some 54,000 children and their families could qualify, meaning Ottawa could be on the hook to pay more than $2 billion.

The tribunal also ruled that the criteria needed to be expanded so more First Nations children could be eligible for Jordan’s Principle, a rule designed to ensure jurisdictional disputes over who pays for what doesn’t prevent kids from accessing government services.

In 2019, the federal government asked the Federal Court to dismiss the tribunal’s decisions. Part of its arguments, according to a court summary, was awarding individual compensation meant there needed to be proof of individual harm.

The Federal Court upheld the orders last month and Friday was the final day for the government to file an appeal.

In a joint statement Friday, Indigenous Services Minister Patty Hajdu, Crown-Indigenous Relations Minister Marc Miller and Justice Minister David Lametti said the parties “have agreed to pause litigation” on the tribunal’s decision.

“We have agreed to sit down immediately and work towards reaching a global resolution by December on outstanding issues that have been the subject of litigation,” the statement said.

“This means that while Canada filed what is known as a protective appeal of the Federal Court decision … the appeal will be on hold and the focus will be squarely on reaching an agreement outside of court and at the table.”

The parties to the case are the federal government, the First Nations Child and Family Caring Society and the Assembly of First Nations.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, said in an interview she was disappointed by the federal government’s appeal.

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

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

The ministers’ statement added that in addition to fair compensation for those who have been harmed, the government is also committing to significant investments to address long-term reform of First Nations child and family services.

At a news conference Friday evening, Miller said there was no intention to reduce any amounts paid to children who were removed from their homes.

“We could implement the (tribunal’s) orders, as written, tomorrow,” he said. “It would not fix the system which continues to be broken. It would advance very little on long-term reform.”

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

“We are juggling very, very complex legal files and when people lawyer up, people get dug in.”

He said the government is putting “a very significant financial package” forward to compensate children who have suffered harm. He said he cannot disclose the specific amount but the government knows that proper compensation would amount to “billions of dollars.”

Asked directly whether each First Nations child, their parents and grandparents impacted by the system would receive $40,000 each, he repeated that the details of the package were private.

“There are children who are entitled to more than $40,000, that’s clear,” he added later in the news conference.

Miller said the talks have the potential to be “messy,” but he added: “Messy is good. That’s where we figure things out.”

NDP Leader Jagmeet Singh said it was “deeply disappointing” but sadly not surprising that the Liberal government decided to appeal the ruling.

“For the past six years, Justin Trudeau has said nice things about reconciliation, but unfortunately, at every opportunity, he fails to back that up with meaningful action,” Singh said in a statement.

In the notice of appeal, the government says Canada acknowledges the finding of systemic discrimination and does not oppose the general principle that First Nations individuals who experienced pain and suffering as a result of government misconduct should be compensated.

“Awarding compensation to individuals in the manner ordered by the Tribunal, however, was inconsistent with the nature of the complaint, the evidence, past jurisprudence and the Canadian Human Rights Act,” it says.

This report by The Canadian Press was first published Oct. 29, 2021.

— with files from Marie Woolf

Stephanie Taylor, The Canadian Press

Indigenous child welfare