Ottawa is appealing First Nations child welfare decision, but is entering into negotiations with the parties

Stephanie Taylor, The Canadian Press

Published Friday, October 29, 2021 at 11:37 EDT

Last updated on Friday, 29 October 2021 22:08 EDT

OTTAWA – The federal government appeals a decision ordering Ottawa to pay First Nations children removed from their homes, but the parties have agreed to sit down Monday in hopes of reaching a financial settlement outside the court.

The government filed the appeal notice late Friday before the federal appeals court closed, along with its legal window to do so.

Many Canadians, indigenous leaders, parliamentarians and advocates kept an eye on what the government would do, as the case has been seen by some as a test of the liberals’ commitment to reconciliation.

In 2016, the Canadian Court of Human Rights found that Ottawa discriminated against First Nations children by deliberately underfunding child and family services for those living in reserve.

Prosecutors in the case, which was first brought out in 2007, say this led to thousands of children being apprehended from their families and endured abuse and suffering in the provincial care systems.

The court ruled that each First Nations child, along with their parents or grandparents, who were divorced due to this chronic underfunding was entitled to receive $ 40,000 in federal compensation, which was the maximum amount it could award.

It has been estimated that about 54,000 children and their families could qualify, meaning Ottawa may be on the hook to pay more than $ 2 billion.

The court also ruled that the criteria should be extended so that more First Nations children could be entitled to Jordan’s principle, a rule designed to secure jurisdictional disputes over who pays for what does not prevent children from accessing public services.

In 2019, the federal government asked the federal court to dismiss the court’s rulings. Part of its arguments, according to a court transcript, was to award individual compensation, which meant there had to be evidence of individual damages.

The federal court upheld the orders last month, and Friday was the last day for the government to file an appeal.

In a joint statement on Friday after the appeal was lodged, Indigenous Services Minister Patty Hajdu, Crown Relations Minister Marc Miller and Justice Minister David Lametti said the parties “have agreed to stay trials” on the court’s decision.

“We have agreed to sit down immediately and work to reach a global solution by December on outstanding issues that have been the subject of lawsuits,” the statement said.

“This means that while Canada filed what is known as a protective appeal of the federal court’s decision, the appeal will be suspended and the focus will be directly on reaching an agreement outside the 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, executive director of the First Nations Child and Family Caring Society, said in an interview that she was disappointed with the federal government’s appeal.

She said the break for the talks would focus on making child and family services “equal” to ensure the federal government increases funding for First Nations families.

“We will under no circumstances negotiate a reduction in compensation,” she said.

National Secretary RoseAnne Archibald of the Assembly of First Nations said in a statement that although we are discouraged by another appeal, “we are encouraged that a deadline will be set for negotiating a solution to this issue.”

Deputy Chief of Staff Bobby Narcisse of the Nishnawbe Aski Nation, who represents First Nations in northern Ontario and is also a party to the case, called the process frustrating.

The ministers’ statement added that in addition to fair compensation to those who have been injured, the government is also committing to significant investments to address long-term reforms of First Nations child and family services.

At a news conference Friday night, Miller said there was no intention to reduce the amount paid to children who were removed from their homes, but acknowledged that those fighting for compensation are skeptical.

“Confidence is thin,” he said. “I can not guarantee success with this, but I can guarantee you that we will do our utmost.”

Miller said there is no single answer as to why Ottawa is not just paying the victims the money the court has allocated.

He said that if the government implemented the orders as they are, members of other class actions representing other groups of First Nations children would not receive compensation and that the case would go into different jurisdictions.

“We could implement (court) orders, as written, tomorrow,” he said. “It would not fix the system, which is still broken. It would promote very little on long-term reforms.”

“We juggle very, very complex legal cases, and when people are lawyers, people get dug in.”

He said the government is putting “a very significant economic package” rather than paying children who have suffered harm while in child welfare systems, including those behind other class actions. He said he could not disclose the specific amount, but the government knows that appropriate compensation would amount to “billions of dollars.”

Directly asked whether each First Nations child, their parents and grandparents affected by the system would receive $ 40,000 each, he reiterated that the details of the package were private.

“There are children who are entitled to more than $ 40,000, of course,” he added later at the press conference.

Miller said the talks have the potential to be “messy”, but he added: “Messy is good. That’s where we find out.”

NDP leader Jagmeet Singh said it was “deeply disappointing” but unfortunately 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 he fails at every opportunity to back it up with meaningful action,” Singh said in a statement.

In the appeal, the government says that Canada recognizes the finding of systemic discrimination and does not oppose the general principle that First Nations individuals who have experienced pain and suffering as a result of government dishonesty should be compensated.

“However, the award of compensation to individuals in the manner ordered by the court was contrary to the nature of the complaint, the evidence, previous case law and Canadian human rights law,” it said.

This report from The Canadian Press was first published on October 29, 2021.

– with files from Marie Woolf

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