Two weeks after the remains of 215 Indigenous children were discovered at the site of a former B.C. residential school, the government is back in court to push back against two Canadian Human Rights Tribunal rulings, including one to compensate Indigenous children who faced discrimination.
While opposition politicians and advocates alike have called on the government to drop the legal battle and, as one NDP press release put it, “stop fighting Indigenous kids in court,” the government says the reality of the case is a bit more complicated.
What is the ruling the government is fighting?
The battle dates back to 2007, when the First Nations Child and Family Caring Society (Caring Society) and the Assembly of First Nations (AFN) filed a complaint under the Canadian Human Rights Act.
In that complaint, the two organizations argued the government was falling short when it came to distributing First Nations child and family services in a fair, equitable way. They claimed the systematic underfunding of services for Indigenous children has a direct link to the disproportionate numbers of Indigenous children who are ripped from their homes and placed in foster care.
Over half of the children in foster care are Indigenous, according to figures from the federal government, despite Indigenous people making up just over seven per cent of the under-14 population in Canada.
The conditions that cause so many Indigenous kids to land in the child welfare system are “related to the intractable legacies of residential schools including poverty, addictions, and domestic and sexual violence,” according to a Truth and Reconciliation Commission report.
The AFN and Caring Society also claimed the government had failed to implement Jordan’s Principle – a rule that pledges to provide First Nations kids with the services they need, when they need them, rather than first taking the time to sort out which level of government is responsible for the cost.
Both the AFN and the Caring Society said these two failures constituted discrimination on the grounds of “race and national ethnic origin,” according to a Caring Society summary of the complaint.
And in 2016, the Canadian Human Rights Tribunal (CHRT) ruled in the AFN and Caring Society’s favour.
The CHRT ordered the government to immediately stop the discrimination, and in 2019, the CHRT awarded $40,000 to each Indigenous child — as well as their parents and grandparents – who was inappropriately taken away from their parents after 2006 as a result of the discriminatory application of these child and family services.
Now, the government has filed for a judicial review of two of these rulings:
- The tribunal’s decision to award these children $40,000 each.
- The decision to expand Jordan’s Principle to children who live off-reserve or aren’t registered under the Indian Act.
What is the government’s argument?
Judicial reviews allow the courts to ensure decisions made by an administrative body – such as the CHRT – are fair, reasonable and lawful. The government is trying to quash the two rulings through a judicial review.
The government is asking the court to determine whether the tribunal made a mistake that needs to be remedied – it’s not a re-arguing of the case itself, but rather a discussion about whether the CHRT made the right call in the two contested rulings.
When it comes to the decision to award the children and their families $40,000 each, the government claims the CHRT is “overreaching their jurisdiction,” according to Adrienne Vaupshas, a spokesperson for Indigenous Services Minister Marc Miller.
The government is arguing the tribunal acted like it was allowed to hear a class-action lawsuit, without the proper guardrails in place that serve as a “fundamental” protection for those kinds of cases.
“As a result, it is unilaterally imposed a one-size-fits-all solution that hinders fair compensation. The result was an order whereby the same compensation (will be issued) to individuals, regardless of whether they were in care for a night or for their entire childhood,” said Vaupshas.
“Canada is not challenging the notion that compensation should be awarded. We are challenging the jurisdiction of the CHRT order because the CHRT is a tribunal created through statute and its jurisdiction is defined by statute.”
When it comes to the second ruling, which calls on the government to broaden its application of Jordan’s Principle, the government is arguing that the tribunal’s ruling makes the resolution too wide-ranging.
Jordan’s Principle was initially intended to rectify jurisdictional disputes, ensuring questions of jurisdiction don’t impact the health of First Nations children, but the government says the CHRT’s ruling changes this into a legal rule to provide services to a much broader group.
In its arguments against the broadening of Jordan’s Principle, the federal government has said the tribunal’s ruling “transformed” Jordan’s Principle from its original resolution into a legal rule to provide services to a far broader group.
What are the Caring Society and AFN’s arguments?
On the other side of the dispute are the Caring Society and the AFN’s lawyers, who are arguing on behalf of the First Nations children and youth who were ripped from their homes by an underfunded and discriminatory child welfare system.
They say Canada harmed these children but is “shamefully” trying to avoid paying for it.
“There is no legal foundation or policy reason to deny the tribunal’s jurisdiction to award compensation to the children in this case. Canada’s arguments in this regard are not about advancing the rights of First Nations children, or protecting the rights of victims,” said Sarah Clarke, one of a team of lawyers representing the Caring Society.
“Instead, these arguments reflect a shameful strategy aimed at saving money at the expense of First Nations children and families across the country.”
The Caring Society lawyers argued on Monday that the systemic discrimination of the government’s policies and practices – based on the fact that these children were of a different race – made the tribunal’s award warranted, rather than the individual harms each child endured.
When it comes to the government’s arguments against broadening the application of Jordan’s Principle, the Caring Society says the reluctance puts too much weight on the “racist” Indian Act’s definition of who is considered a status Indigenous person in Canada.
“Canada does not want to pay for First Nations kids who don’t have Indian Act status, that racist Indian Act status,” said Cindy Blackstock, who runs the Caring Society, in an interview with Global News two weeks ago.
The AFN’s lawyers presented their arguments in court on Tuesday, echoing the Caring Society’s position on compensation for survivors and families.
“It is frankly heartless for Canada to be challenging the tribunal’s decisions, particularly the compensation decision, on the basis there was insufficient evidence to establish harms resulting from the removal of First Nations children from their families, homes and communities,” AFN lawyer David Nahwegabow said.
“How can they question that removing children from families causes harm?”
So what’s next?
The government’s bid to quash the two rulings is currently before the courts, with hearings scheduled to take place every day up until June 18.
Meanwhile, tensions over the issue remain high — with politicians and advocates alike bringing their concerns before television cameras and calling on the government to drop the case.
“The fact that the Liberal government wants to fight the bare minimum, wants to spend millions of dollars fighting a decision from one of the highest tribunals respecting human rights in Canada, really shows their lack of commitment,” NDP Leader Jagmeet Singh said in a Monday press conference.
Miller’s office, meanwhile, is pushing back on the narrative that the government is resisting the order to compensate Indigenous children.
“There is no refusal to compensate on our part. It is rather a question of jurisdiction and choice of forum,” said Vaupshas.
“We want to compensate in a way that is equitable to all by moving to a forum where there is global compensation that factors in, for example, time in care. For many, this may result in compensation above what the CHRT ordered.”
The government also “continues to fully implement Jordan’s Principle,” Vaupshas added.
But the government’s assertions haven’t convinced Blackstock, who remains determined to fight back against the government’s lawyers.
“Canada is going to go back to court and argue against these kids,” she told Global News.
“We all need to be there to make sure that they know that this time, we are not going to let them get away with it.”
— With files from The Canadian Press’s Teresa Wright