Federal government appeals court ruling on Indigenous child welfare

Court cases on hold as government seeks to find a negotiated settlement

M’CHIGEENG – Assembly of First Nations (AFN) Chief RoseAnne Archibald and Ontario Regional Chief of the Chiefs of Ontario Glen Hare have both expressed their disappointment that Canada has again appealed a Canadian Human Rights Tribunal on Indigenous child welfare compensation, although the federal government has indicated it is also working with Indigenous groups to reach a compensation agreement by the end of the year.

“While we are disappointed that Canada continues to pursue an appeal, we are encouraged that a deadline will be set to negotiate a settlement of this matter,” said National Chief Archibald in a release. “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 services.”

“Our priority remains to ensure that our children and families are supported to thrive,” said National Chief Archibald. “First Nations children and families have waited far too long for justice and healing. In order to walk the healing path together, Canada must acknowledge the harms that discrimination has had on our children and families. Our collective goal is to ensure that discrimination ends and never happens again. Our children are precious and our families matter.”

“You know what I’ve been saying all along on this. Why have courts make decisions at all if all it leads to is more appeals?” questioned Regional Chief Hare. “We might as well go to Ottawa and meet with the Prime Minister directly and maybe we would get an answer the same day.” 

“Every time a court ruling is made in favour of Indigenous people, an appeal is made,” said Regional Chief Hare. “This time, it is more than a slap in the face, it brings back the issues of the unmarked graves at residential schools, compensation for Indigenous child welfare, clean water for First Nations and other issues.”

“I was definitely hoping for a better outcome and I’m certainly very disappointed,” said Regional Chief Hare. 

The appeal continues a 14-year legal battle that leaves the federal government on the hook for billions of dollars.

The federal government says it is willing to compensate children and families placed in the child welfare system but it continuously appeals the legal decisions that would mean the government would have to pay compensation, reported CBC News.

The government has indicated that it wants to reach an agreement out of court and this is something parties representing children in this case have agreed to explore. “Today, the Government of Canada and the parties (the First Nations Child and Family Caring Society and Assembly of First Nations) are announcing that we have agreed to sit down immediately and work towards reaching a global resolution by December 2021 on outstanding issues that have been the subject of litigation,” a government statement reads. 

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society and one of the key figures squaring off against the federal government told CBC’s Power and Politics, “If there is no deal, we’re going to go to hearings on an expedited basis. We do not want children to lose out on this time. We’re willing to press ‘pause’, but (the government) has agreed to an expedited hearing schedule if  we get into that room and it looks like (they’re) not going to stop the discrimination.”

In the appeal filed on October 29, Ottawa requested an order to set aside both the federal court decision and the orders issued by the tribunal. The government described this as a protective appeal that will be put on hold while the parties try to strike a deal. 

The federal government’s argument is that the court erred by finding that the tribunal “acted reasonably” in its decision to order monetary compensation for children and families who were placed in the child welfare system, reported CBC News.

The notice of appeal reads, “Canada acknowledges the finding of systemic discrimination and does not oppose the general principle that compensation to First Nations individuals who experienced pain and suffering as a result of government misconduct should be provided. 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.”

In 2019, the Tribunal ordered Ottawa to pay $40,000, the maximum allowed under the Canadian Human Rights Act, to each child in the on-reserve child welfare system from at least January 1, 2006 to a date to be determined by the tribunal. The federal government was also to pay $40,000 to each First Nations child, along with their primary guardian, who was denied services or forced to leave home to access services covered by the policy now known as Jordan’s Principle.