Federal Court upholds landmark compensation order for First Nations children

The Federal Court today dismissed a judicial review into a landmark human rights tribunal compensation order for First Nations children — leaving the federal government on the hook for billions of dollars in compensation related to the child welfare system.

Justice Paul Favel said today that the Attorney General of Canada had “not succeeded in establishing that the compensation decision is unreasonable.”

The federal government had argued that the Canadian Human Rights Tribunal had overreached and was wrong to order Ottawa to pay $40,000 — the maximum allowed under the Canadian Human Rights Act — to each child affected by the on-reserve child welfare system since 2006. 

Favel wrote that the tribunal “reasonably exercised its discretion” under the 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.”

More to come, a previous version of this story is below.

The Federal Court is expected to issue a decision today on whether a landmark human rights tribunal compensation order for First Nations children should stand.

In the fall of 2019, the Canadian Human Rights Tribunal ordered Ottawa to pay $40,000 — the maximum allowed under the Canadian Human Rights Act — to each child affected by the on-reserve child welfare system since 2006. 

The tribunal said the parents or grandparents of those children (depending on who was the primary guardian) would also be eligible for compensation, as long as the children were not taken into the child welfare system because of abuse.

Today’s decision could leave Ottawa on the hook for billions of dollars in compensation.

The ruling also ordered Ottawa to pay $40,000 to each First Nations child (along with their parents or grandparents) who were forced to leave their homes to access services, or who were denied services covered by the policy known as Jordan’s Principle.

That policy states that the needs of a First Nations child requiring a government service take precedence over jurisdictional disputes over who should pay for it.

The Jordan’s Principle portion of the order covers the period from Dec. 12, 2007 — when the House of Commons adopted Jordan’s Principle — to Nov. 2, 2017, when the tribunal ordered Canada to change its definition of Jordan’s Principle and review previously denied requests.

The Attorney General of Canada filed an application for a judicial review and a stay of the order.

Ottawa argues tribunal overreached

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, launched the human rights complaint that led to the ruling, along with the Assembly of First Nations.

She said she’s hoping the decision will swing against Ottawa.

“I’m hoping it’s one that’s favourable to kids and that the federal government finally follows the court order,” Blackstock said.

“If they are going to actively litigate against First Nations children and their families from getting justice … then it’s time for the public to put the federal government on the right course-correct.”

Cindy Blackstock is the executive director of the First Nations Child and Family Caring Society, which filed the original complaint against Ottawa with the Assembly of First Nations in 2007. (CBC)

Ottawa could appeal the decision.

It argued the tribunal overreached and was wrong to order compensation.

The federal government’s filing said the human rights case was about systemic discrimination, and it responded by increasing funding and changing the system.

The government’s application called for a court order to set aside the tribunal’s decision and dismiss the claim for monetary compensation, or an order to set aside the tribunal’s decision and refer the matter back to the tribunal for review.

In its reasons for arguing the tribunal erred, the federal government took issue with the conclusion that discrimination in Canada’s policy for funding child and family services on-reserve and in Yukon is ongoing.

The compensation order followed a 2016 tribunal decision that found the federal government discriminated against First Nations children by underfunding the on-reserve child welfare system.

The tribunal directed Ottawa to enter discussions with the First Nations Family Caring Society and the Assembly of First Nations, which filed the initial human rights complaint in 2007. The negotiations would determine the best independent process to distribute the compensation and decide who qualifies.

Some estimates place the number of potentially affected children at about 50,000, with the largest numbers in the Prairies and British Columbia. The ruling also covers First Nation children in Yukon.

The federal government’s decision to challenge the order has drawn widespread condemnation from First Nations leaders, the NDP, the Green Party and human rights organizations like Amnesty International.

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