A 14-year struggle for the well-being of First Nations children could end today – here’s what you need to know

The federal government has until the end of the day to decide whether to end or extend a bitter 14-year battle over discrimination compensation in the Indigenous child welfare system.

In 2016, the Canadian Human Rights Tribunal ruled that the federal government was discriminating against First Nations children by underfunding an on-reserve child welfare system that granted little attention to the consequences of removing First Nations children from their homes.

The court said Canada’s actions had resulted in “trauma and harm to the highest degree, causing pain and suffering.”

Some estimates place the number of children potentially affected by the court’s decision at around 50,000, with the highest numbers in the Prairies and British Columbia. The ruling also covers First Nations children in the Yukon.

Today is the deadline for the federal government to decide whether to appeal a Federal Court decision that upheld the order. The case was the subject of heated debate between critics calling the Trudeau government’s commitment to reconciliation hypocritical and those saying the court order was problematic.

Prime Minister Justin Trudeau said his ministers were still working on the case Friday morning.

“Let me say that we are committed to compensating the indigenous peoples who were injured during treatment. We are committed to trying to end this harmful system,” he said at a press conference. from The Hague in the Netherlands.

“And furthermore, we are committed to working with partners to end this nefarious system and ensure that children at risk remain in their communities, in their culture and are cared for by their communities.”

Here’s what you need to know:

What’s at stake with the court order?

For Ottawa, billions of dollars are at stake.

The court ordered Ottawa to pay $ 40,000 – the maximum allowed under the Canadian Human Rights Act – to each child affected by the child welfare system on reserves as of January 1, 2006 at least until a date to be determined by the court.

The court said the parents and grandparents of these children (depending on who was the primary guardian at the time) would also be eligible for compensation as long as the children were not taken into the care of the welfare system. childhood due to abuse.

He also ordered the federal government to pay $ 40,000 to each First Nations child (as well as the child’s primary caregiver) who was denied services or was forced to leave home to access services. covered by the policy known as Jordan’s Principle.

Cindy Blackstock, Executive Director of the First Nations Child and Family Caring Society of Canada, is asking the federal government not to appeal the Federal Court’s decision. (SRC)

This policy states that the needs of a First Nations child requiring 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 December 12, 2007 – when the House of Commons adopted Jordan’s Principle – to November 2, 2017, when the court ordered Canada to change its definition of the principle. de Jordan and review previously rejected claims. .

The ordinance also stipulates that compensation must be paid to estates of deceased persons who would have been entitled to compensation.

Why did the federal government want judicial review?

In the fall of 2019, the federal government brought an application to the Federal Court to quash the court order and dismiss the compensation claim. This decision drew broad condemnation from leaders of First Nations, the NDP, the Green Party and human rights organizations like Amnesty International.

The government said at the time that it was not opposed to the concept of compensation. He argued that the court had no jurisdiction to order specific amounts of compensation in the manner of a class action suit.

“The question here is not whether discrimination … existed … Canada accepted this result,” said Sony Perron, associate deputy minister of Indigenous Services Canada (ISC), in an affidavit filed with the court. federal.

“The problem … is that the tribunal has made a sweeping decision that will have a significant impact on Indigenous Services Canada (ISC) and Crown-Indigenous relations and that raises important public policy questions that only Cabinet can decide. . “

The government also challenged the fact that the decree would grant the same amount of money to someone who spent a day in day care as it did for someone who spent their childhood there.

Why did the Federal Court uphold the court order?

Justice Paul Favel said the Attorney General of Canada, who had asked the Federal Court to review the court order, had “failed to establish that the compensation decision is unreasonable.”

Favel wrote that the court “reasonably exercised its discretion” under the Act to “deal with a complex case of discrimination in order to ensure that all issues were sufficiently addressed and that the issue of compensation was dealt with by steps”.

Favel rejected the federal government’s argument that the tribunal process was procedurally unfair and that the tribunal erred in concluding that the discrimination was ongoing.

Prime Minister Justin Trudeau is flanked by an eagle statue as he visits Tk’emlups te Secwepemc in Kamloops, British Columbia on Mon, October 18, 2021. (Jonathan Hayward / Canadian Press)

In his decision – released on the eve of the first National Truth and Reconciliation Day – Favel also said negotiations could help achieve the goal of reconciliation and would be “the preferred outcome of indigenous peoples and Canada”.

“In my opinion, the procedural history of this case has shown that there is and that there has been good will, which has led to significant movements to remedy this unprecedented discrimination,” said he wrote.

“However, the good work of the parties is unfinished. The parties must decide whether they will continue to sit beside the track or move forward in this spirit of reconciliation.”

Is the federal government really “fighting children” in court?

This is what aboriginal advocates and New Democrats have said time and time again. The case has dragged on for 14 years and no one has been compensated.

“You cannot be reconciled when you fight against this generation of children, the very descendants of residential school (school) survivors,” said Cindy Blackstock, Executive Director of the Child and Family Caring Society of the First Nations of Canada.

The federal government dismisses the claim that it is fighting children in court, saying it is challenging some of the court’s findings and the precedent set by its order.

“We all agree that litigation does not serve Indigenous children, but there are many important conversations to be had and we will have them very quickly,” new Indigenous Services Minister Patty Hajdu said Tuesday.

“Compensation is important, but it is also extremely important to ensure that indigenous children have access to equity, services and opportunities like all other children in the country. “

When will Aboriginal youth be compensated?

It’s not clear. It will depend on negotiations between the federal government and aboriginal groups.

The court did not order Canada to pay compensation immediately. Instead, he said Canada should define the eligibility of victims, create an appropriate methodology for distribution and consult with other parties.

Crown-Indigenous Relations Minister Marc Miller and Indigenous Services Minister Patty Hajdu wait to speak to the media following a cabinet meeting in Ottawa on Wednesday. October 27, 2021. (Adrian Wyld / Canadian Press)

The court ordered Ottawa to begin discussions with the First Nations Family Caring Society and the Assembly of First Nations – which filed the first human rights complaint in 2007 – to determine the best independent process for distribute compensation and decide who is eligible.

So far, those talks have not resulted in a resolution, but the government has said it wants to settle outside the court process.

“As a government, we are committed to fostering reconciliation, which means we are committed to compensating Indigenous children,” Prime Minister Justin Trudeau said Tuesday.

“We are also committed to ending the child and family service system that continues to remove children from their communities to impose unacceptable barriers, outcomes and situations that no Canadian child should face.”

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