The federal government has until the end of the day to decide whether to end or prolong a bitter 14-year battle over compensation for discrimination in the Indigenous child welfare system.
In 2016, the Canadian Human Rights Tribunal issued a decision that said the federal government discriminated against First Nations children by underfunding an on-reserve child welfare system that paid little attention to the consequences of removing First Nations children from their homes.
The tribunal said Canada’s actions led to “trauma and harm to the highest degree, causing pain and suffering.”
Some estimates place the number of children potentially affected by the tribunal’s ruling at about 50,000, with the largest numbers in the Prairies and British Columbia. The ruling also covers First Nation children in Yukon.
Today is the deadline for the federal government to decide whether to appeal the order. The case has been the subject of heated debate between critics casting the Trudeau government’s commitment to reconciliation as hypocritical and those arguing the tribunal’s order was problematic.
Here is what you need to know:
What’s at stake with the tribunal order?
For Ottawa, billions of dollars are at stake.
The 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 from at least Jan. 1, 2006, to a date to be determined by the tribunal.
The tribunal said the parents and grandparents of those children (depending on who was the primary guardian at the time) would also be eligible for compensation as long as the children weren’t taken into the child welfare system because of abuse.
It also directed the federal government to pay $40,000 to each First Nations child (along with the child’s primary guardian) who was denied services or forced to leave home to access 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 order also states compensation must be paid to the estates of deceased individuals who would have been eligible for compensation.
Why did the federal government want a judicial review?
In the fall of 2019, the federal government submitted an application to the Federal Court to set aside the tribunal’s order and dismiss the claim for compensation. That decision drew widespread condemnation from First Nations leaders, the NDP, the Green Party and human rights organizations like Amnesty International.
The government said at the time that it did not oppose the concept of compensation. It argued that the tribunal did not have jurisdiction to order specific compensation amounts in the manner of a class action lawsuit.
“The issue here is not whether the discrimination … existed … Canada has accepted that result,” said Sony Perron, the associate deputy minister of Indigenous Services Canada (ISC), in an affidavit filed with the Federal Court.
“The issue … is that the tribunal has issued a sweeping decision that will significantly impact ISC (Indigenous Services Canada) and Crown-Indigenous relations and that raises important questions of public policy that only cabinet can decide.”
The government also has taken issue with the fact that the order would award the same amount of money to someone who spent one day in care as it would to someone who spent an entire childhood there.
Why did the Federal Court uphold the tribunal’s order?
Justice Paul Favel said that the Attorney General of Canada, who had asked the Federal Court to review the tribunal’s order, had “not succeeded in establishing that the compensation decision is unreasonable.”
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.”
Favel dismissed the federal government’s argument that the tribunal process was procedurally unfair and that the tribunal made a mistake by finding discrimination is ongoing.
In his ruling — released on the eve of the first National Day of Truth and Reconciliation — Favel also said negotiations could help realize the goal of reconciliation and would be “the preferred outcome for both Indigenous people and Canada.”
“In my view, the procedural history of this case has demonstrated that there is, and has been, good will resulting in significant movements toward remedying this unprecedented discrimination,” he wrote.
“However, the good work of the parties is unfinished. The parties must decide whether they will continue to sit beside the trail or move forward in this spirit of reconciliation.”
Is the federal government really ‘fighting kids’ in court?
This is what Indigenous advocates and New Democrats have said repeatedly. The case has dragged on for 14 years and no one has been compensated.
“You cannot reconcile when you’re fighting this generation of kids, the very descendants of the survivors from residential (schools),” said Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society of Canada.
The federal government dismisses the claim that it’s fighting kids in court, saying it takes issue with some of the tribunal’s findings and the precedent that its order sets.
“We all agree that litigation is not serving Indigenous children, but there are many important conversations to be had and we’ll be having them very quickly,” newly appointed Indigenous Services Minister Patty Hajdu said on Tuesday.
“Compensation is important, but ensuring that Indigenous children have equity and services and opportunities like every other child across this country is extremely important as well.”
When will Indigenous youth get compensated?
It’s not clear. That will depend on negotiations between the federal government and Indigenous groups.
The tribunal did not order Canada to pay compensation immediately. Instead, it said Canada should define eligibility for victims, create an appropriate methodology for distribution and consult with other parties.
The tribunal ordered 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 — to determine the best independent process to distribute the compensation and decide who qualifies.
So far, those talks have not resulted in a resolution.
“We are committed as a government to reconciliation and that means we are committed to compensating Indigenous children,” Prime Minister Justin Trudeau said on Tuesday.
“We are also committed to ending the system of child and family services that continues to remove kids from their communities to give them unacceptable barriers, outcomes and situations that no Canadian child should have to face.”