The federal government has filed its intent to appeal an order from the Canadian Human Rights Tribunal to compensate Indigenous children and their families. But Ottawa says parties have agreed to pause litigation until December to provide time to arrive at a compensation deal.Nathan Denette/The Canadian Press
The federal government intends to appeal a court’s decision to uphold tribunal findings that could leave Ottawa liable for billions of dollars in payments to Indigenous children and their families.
But the government said Friday that the parties have agreed to pause litigation until December to provide time to arrive at an agreement on compensation for Indigenous children without court intervention.
At a Friday evening news conference, Indigenous Services Minister Patty Hajdu, Crown-Indigenous Relations Minister Marc Miller and Justice Minister David Lametti said those talks will begin on Monday morning, and that a “significant financial package” is being put forward.
Those included in the talks will be the parties to the case, the First Nations Child and Family Caring Society and the Assembly of First Nations. Also included will be representatives involved in separate class action lawsuits related to Indigenous child welfare.
Mr. Miller said the compensation package is designed to go to children who suffered harm and move ahead on reforms to the broken child welfare system.
“It’s a question of respect and it is a question of fairness,” Mr. Miller said. “Out of that same fairness and out of respect for the parties, we can’t discuss the financial package that’s been put forward.”
Mr. Miller added that fixing the problem will cost “billions of dollars.”
In a notice of appeal filed in the Federal Court of Appeal on Friday, the government says a lower court erred in a September ruling. The ruling, by the Federal Court, upheld two orders from the Canadian Human Rights Tribunal (CHRT) related to Indigenous children.
The government is challenging one of those CHRT orders, which requires Ottawa to provide up to $40,000 in compensation to each First Nations child unnecessarily taken into foster care as a result of underfunded government services since 2006. The order would also require payments to parents or grandparents.
But Ottawa is not appealing the second CHRT order, which expands the scope of Jordan’s Principle – a rule that requires that First Nations kids to receive access to government services without delays caused by jurisdictional issues.
Ottawa’s position in the CHRT case revolves around questions about jurisdiction. During legal proceedings, Robert Frater, a lawyer for the Attorney-General of Canada, said Ottawa recognized the need to compensate those who were affected but argued the CHRT’s findings were reached through a flawed chain of reasoning.
Assembly of First Nations' RoseAnne Archibald says her organization is disappointed that Ottawa continues to pursue an appeal, but that it's encouraged that a deadline has been set for negotiations.DARRYL DYCK/The Canadian Press
Regardless, First Nations advocates and opposition parties said that the government’s decision to appeal calls into question Prime Minister Justin Trudeau’s commitment to reconciliation. Ottawa has repeatedly said that its relationship with Indigenous peoples is of paramount importance. Mr. Trudeau has faced greater pressure to make progress on this file since summer, when several First Nations announced that they had found unmarked burial sites on the grounds of former residential schools.
Assembly of First Nations National Chief RoseAnne Archibald said Friday that her organization is disappointed that Ottawa continues to pursue an appeal, but that the AFN is encouraged that a deadline has been set for negotiations.
“This in effect will pause the appeal while we immediately sit down and work towards reaching a global resolution by December 2021 on outstanding issues that have been the subject of litigation, including compensation for the harms done through child and family service,” she said. “Our priority remains to ensure that our children and families are supported to thrive.”
Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society, said in an interview on Friday that it is disappointing that Ottawa filed its appeal. She added that she is glad the government did not appeal the Jordan’s Principle order.
Both the NDP and Conservatives criticized the Liberal government Friday, with NDP Leader Jagmeet Singh saying the decision to appeal was disappointing and the wrong thing to do.
Conservative MP Jamie Schmale said the government’s decision was taken against “against countless calls made by Indigenous advocates and community leaders.”
Ms. Blackstock said “serious discussions with the government” are needed to find ways of ending discrimination against First Nations children. She said that the Caring Society believes the financial compensation ordered by the CHRT belongs to the children, and that the organization will take the position that the tribunal’s order “ought to stand.”
Former justice minister Jody Wilson-Raybould, who was the first Indigenous person to serve in the role, called the decision to appeal “wrong” both for Indigenous kids and for Canada.
Mary Ellen Turpel-Lafond, a law professor at the University of British Columbia and the Director of the Residential School History and Dialogue Centre, called the appeal “legally groundless and unwise.”
“It reveals what has long been apparent,” she said. “When it comes to Indigenous peoples, this is a government that privileges words over action, and symbolism over substance.”
In its notice of appeal, the federal government argues, among other things, that the Federal Court erred by finding that the tribunal acted reasonably when it ordered compensation for First Nations children, their parents and grandparents under the Canadian Human Rights Act (CHRA).
The Federal Court’s decision upholding the two CHRT orders was handed down on Sept. 29, the eve of the first National Day for Truth and Reconciliation. Federal Court Justice Paul Favel found the tribunal reasonably exercised its discretion under the CHRA 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.”
Justice Favel’s decision said that the tribunal properly considered the record to determine whether to award damages for willful and reckless conduct. The decision added that there was more than enough evidence to ground the tribunal’s finding.
Ahead of its decision on whether to appeal Justice Favel’s findings, Ottawa faced calls not to pursue further legal action against the CHRT orders, including from representatives from organizations such as the Canadian Bar Association, the Canadian Medical Association and opposition parties.
At the time of the tribunal’s decision, the Assembly of First Nations said that more than 54,000 First Nations children could be eligible for compensation.
Kristy Kirkup
Sean Fine