OTTAWA — The federal government is appealing a ruling ordering Ottawa to compensate First Nations children removed from their homes, but says the parties have agreed to keep talking about next steps in the hope they can reach an agreement outside court.
The government filed the notice of appeal late Friday before the Federal Court of Appeal closed.
In 2016, the Canadian Human Rights Tribunal found Ottawa discriminated against First Nations children by knowingly underfunding child and family services for those living on reserve.
Litigants in the case, first brought forward in 2007, say this led to thousands of kids being apprehended from their families and enduring abuse and suffering in provincial foster care systems.
The tribunal said each First Nations child, along with their parents or grandparents, who were separated because of this chronic underfunding were eligible to receive $40,000 each in federal compensation, which was the maximum amount it could award.
It has been estimated some 54,000 children and their families could qualify, meaning Ottawa could be on the hook to pay more than $2 billion.
The tribunal also ruled that the criteria needed to be expanded so more First Nations children could be eligible for Jordan’s Principle, a rule designed to ensure jurisdictional disputes over who pays for what don’t prevent kids from accessing government services.
In 2019, the federal government asked the Federal Court to dismiss the tribunal’s decisions. Part of its arguments, according to a court summary, was awarding individual compensation meant there needed to be proof of individual harm.
In a joint statement Friday, Indigenous Services Minister Patty Hajdu, Crown-Indigenous Relations Minister Marc Miller and Justice Minister David Lametti said the parties “have agreed to pause litigation” on the tribunal’s decision.
“Providing the space to reach agreement on compensation and funding for future reforms will help us reach the best outcome,” they said ahead of a news conference in Ottawa on Friday.
“This means that while Canada filed what is known as a protective appeal of the Federal Court decision … the appeal will be on hold and the focus will be squarely on reaching an agreement outside of court and at the table.”
The parties to the case are the federal government, the First Nations Child and Family Caring Society and the Assembly of First Nations.
Cindy Blackstock of the First Nations Child and Family Caring Society said in an interview she was disappointed that the federal government has chosen to appeal.
“We will not negotiate under any circumstances a reduction in the compensation,” she said.
The talks will focus on “providing fair, equitable compensation to First Nations children on-reserve and in the Yukon who were removed from their homes by child and family services agencies,” the ministers said in the statement.
“As we work to ensure that those who have been harmed are fairly compensated, we are also committing to significant investments to address long-term reform of the First Nations Child and Family Services and will work with the parties to put in place an approach that best serves these children.”
NDP Leader Jagmeet Singh said it was “deeply disappointing” but sadly not surprising that the Liberal government decided to appeal the ruling.
“For the past six years, Justin Trudeau has said nice things about reconciliation, but unfortunately, at every opportunity, he fails to back that up with meaningful action,” Singh said in a statement.
“We cannot move forward on reconciliation while this Liberal government continues to fight Indigenous children and their families in court.”
In the notice of appeal, the federal government says Canada acknowledges the finding of systemic discrimination and does not oppose the general principle that First Nations individuals who experienced pain and suffering as a result of government misconduct should be compensated.
“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,” it says.
This report by The Canadian Press was first published Oct. 29, 2021.
The Canadian Press