First Nations child welfare case adjourns, judge reserves decision

OTTAWA — Advocates fighting for First Nations children and families ripped apart by an underfunded child welfare system say the Trudeau government should stop challenging a Canadian Human Rights Tribunal order that awarded money to victims.

Lawyers on Tuesday wrapped up arguments in a Federal Court case challenging the tribunal’s ruling that Ottawa pay $40,000 to every First Nations child who was inappropriately taken away from their parents after 2006.

The ruling said the federal government “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.

Had they lived off-reserve, the children would be covered by better-funded provincial systems.

The Liberal government, which is appealing the tribunal’s decision, had its lawyers ask the Federal Court to stay the tribunal’s order that imposed a Dec. 10 deadline for the government to come up with a plan on how it would provide payment to victims.

Justice Department lawyer Robert Frater said Canada agrees its actions were discriminatory and that the government will compensate children and their families.

But Frater called the human rights tribunal’s order an “unnecessarily invasive piece of surgery by the wrong doctors.”

Ottawa instead wants to compensate First Nations families through a settlement in a separate but related class-action lawsuit filed earlier this year seeking $6 billion in damages for Indigenous children.

Federal Court Justice Paul Favel is reserving judgment, but said he will deliver a decision as soon as possible in a nod to the looming Dec. 10 deadline.

The government wants to negotiate a settlement that will cover all victims going back to 1991, and argued in court that the tribunal decision’s compensation plan doesn’t allow for this because its order only includes victims and their families since 2006.

Lawyers for the First Nations Child and Family Caring Society, which filed the original human-rights complaint in 2007, and other parties in the case said nothing stops the government from paying damages awarded by the human-rights tribunal while also extending compensation to other victims.

Cindy Blackstock, the society’s executive director, said the government is “shopping around for a court where they can do what they want” by trying to provide compensation through the class-action lawsuit instead of following the tribunal’s order.

“We’re in the litigation process at the tribunal on compensation because Canada wanted us to go there. We wanted to mediate, but Canada said, ‘No, we have to litigate this at the tribunal.’ So they got what they wanted, which is an order,” Blackstock told reporters outside the courtroom Tuesday.

“Now they don’t like the order and they want it out of the way,” she said, adding, “it feels like they’re just trying to find a place that agrees with them.”

NDP Leader Jagmeet Singh, who took in the court proceedings Tuesday, said he will continue to push Prime Minister Justin Trudeau to stop taking Indigenous children to court.

“The government should drop the appeal, it should follow the tribunal decision. If there are other cases and other discrimination that need to be addressed, address that as well.”

Teresa Wright, The Canadian Press