First Nations kids deserve more ‘equitable’ compensation, feds argue in court

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OTTAWA — The federal Liberals say they are appealing a Canadian Human Rights Tribunal ruling on First Nations children because it limits the families that could receive compensation to those affected in the last 13 years.

That appeal is underway today in Ottawa, where Justice Department lawyers are asking the Federal Court for a stay of the tribunal’s September order that the federal government must compensate First Nations families that were wrongly split apart by the child-welfare system.

The ruling said the federal government “wilfully and recklessly” discriminated against Indigenous children living on-reserve by not properly funding child and family services. As a result, children were sent away from their homes, families and reserves because if they lived off-reserve, they would be covered by better-funded provincial systems.

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Justice Department lawyer Robert Frater argued the tribunal’s judgement imposes a one-size-fits-all solution to an issue of systemic discrimination against Indigenous children and will not compensate all possible victims.

Frater noted the tribunal’s compensation order includes victims and their families dating back to 2006, while there are victims of the Indigenous child-welfare system’s being underfunded from as far back as 1991.

The government does favour compensation but it wants to find a more inclusive process, Frater told the Federal Court.

“Canada is committed to remedying the injustices of the past, but it has to be done in a fair and equitable way.”

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Instead, a settlement in a separate class-action case brought earlier this year will be pursued, the government said in a statement this morning from Marc Miller, the Montreal MP appointed last week as minister of Indigenous services, and Justice Minister David Lametti.

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Xavier Moushoom, an Algonquin man from Quebec, was moved in and out of 14 foster homes from the time he was nine until he was 18. His lawsuit claims the federal government knew it was inadequately funding child-welfare services for children on reserves and did nothing about it.

Another man, Jeremy Measwasige, was added as a new plaintiff when the original statement of claim was amended to increase the lawsuit’s claim from $3 billion to $6 billion. The 25-year-old from Nova Scotia was born with cerebral palsy, spinal curvature and autism. He battled the federal government to get adequate funding for essential services.

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Miller and Lametti said that Canada “agrees it must fairly and equitably compensate First Nations children who have been negatively impacted by child and family policies. What we must do is seek an approach that will provide a fair and equitable resolution.”

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“To that end, we will work with plaintiff’s counsel with the goal of moving forward with certification of the Xavier Moushoom and Jeremy Measwasige v. The Attorney General of Canada class action,” they said.

The class-action case was filed last March. Federal lawyers began negotiating with the plaintiffs’ lawyers earlier this fall.

The human-rights tribunal order came in September, requiring the government to pay $40,000 for each First Nations child who was inappropriately taken away from his or her parents after 2006, as well as similar compensation to parents or grandparents who had their kids inappropriately removed, and for children who were denied essential services.

The Liberals announced during the election campaign they intended to appeal the ruling. Prime Minister Justin Trudeau said there wasn’t time for proper consultations and planning on how to distribute the money by a December deadline.

READ MORE: Indigenous issues largely were absent from election campaign — why?

The Assembly of First Nations estimated that 54,000 children and their parents could be eligible for payments but which families would be covered had to be worked out in negotiation between the Assembly of First Nations and the First Nations Child and Family Caring Society, which brought the original human-rights complaint forward in 2007.

Miller and Lametti echoed arguments presented in court today about the limited time frame of the tribunal’s decision.

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“The class-action model is designed to give individuals the chance to have their interests represented, to address the interests of all impacted individuals and to allow parties to arrive at an appropriate resolution of past harms,” Miller and Lametti said.

Lawyers representing the First Nations Caring Society took issue with this argument in their own arguments to the Federal Court today.

They said it is not the fault of children and families who stand to receive compensation from the tribunal’s decision that other children came before them who also experienced discrimination.

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The First Nations Caring Society is asking for an abeyance of the government’s application for a judicial review of the tribunal decision.

They’re urging the court to let the Canadian Human Rights Tribunal to do its work in setting up a process for compensation. No money would begin to flow until after submissions are made and a ruling by the tribunal made on exactly how children and families would be paid out.

“This is not a case where Canada has played ball from the beginning. We have dragged them, from the beginning, through every issue that we have had to fight for these kids,” said Caring Society lawyer Sarah Clarke.

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“Now is not the time to trust them when they say, ‘We will compensate them all outside of this venue.’ We should be holding them accountable and we should be moving this case forward in a streamlined approach that benefits First Nations children and their families.”