The federal government has filed what officials bill as a “protective” appeal of a court ruling upholding two orders to compensate Indigenous children placed into provincial foster care systems.
But in a statement released Friday evening, the government says all parties involved have agreed to pause litigation of the case and that officials will sit down with them with the goal of reaching a compensation deal by December 2021.
“Today, the Government of Canada and the Parties, the First Nations Child and Family Caring Society and Assembly of First Nations, are announcing that we have agreed to sit down immediately and work towards reaching a global resolution by December 2021 on outstanding issues that have been the subject of litigation,” reads the statement.
It is issued jointly on behalf of Indigenous Services Minister Patty Hajdu, Crown-Indigenous Relations Minister Marc Miller, and David Lametti, Minister of Justice and Attorney General of Canada.
“In order to allow the Parties time to have meaningful discussions and to reach a lasting agreement, Canada, the First Nations Child and Family Caring Society and Assembly of First Nations have agreed to pause litigation on the Canadian Human Rights Tribunal decision.”
The goal of the discussions will be to provide “fair, equitable compensation” as well as creating “long-term reform of the First Nations Child and Family Service program, and reaching an agreement on funding to enable First Nations communities to offer family services on-reserve.
“The appeal will be on hold and the focus will be squarely on reaching an agreement outside of court and at the table,” the statement added.
At a news conference Friday evening, Miller said there was no intention to reduce any amounts paid to children who were removed from their homes.
“We could implement the (tribunal’s) orders, as written, tomorrow,” he said. “It would not fix the system which continues to be broken. It would advance very little on long-term reform.”
If the government implemented the orders, members of other class-action lawsuits representing other groups of First Nations children would not receive compensation, Miller added.
“We are juggling very, very complex legal files and when people lawyer up, people get dug in.”
He said the government is putting “a very significant financial package” forward to compensate children who have suffered harm. He said he cannot disclose the specific amount but the government knows that proper compensation would amount to “billions of dollars.”
Prime Minister Justin Trudeau has faced growing pressure as the deadline to appeal the Federal Court ruling ticked down by the hour on Friday, and federal officials gave no indication of what decision they would take.
Advocates for the Indigenous children and for Indigenous communities have argued the government should not appeal, while Justice Minister David Lametti has said the case is procedurally complicated and that Ottawa is committed to compensating whether it appeals the specifics of the ruling or not.
Government lawyers have argued the Canadian Human Rights Tribunal does not have the authority to issue orders for compensation on the federal government, as it did with this situation and which the Federal Court ruled should be upheld.
In the notice of appeal, federal lawyers explained the rationale for the move.
“Canada acknowledges the finding of systemic discrimination and does not oppose the general principle that compensation to First Nations individuals who experienced pain and suffering as a result of government misconduct should be provided,” reads the notice of appeal.
“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.”
The notice asks the Federal Court of Appeal to set aside the Federal Court ruling upholding the tribunal’s orders. Government lawyers argue that the Federal Court made a mistake by not ruling that the tribunal’s orders were “made without jurisdiction or beyond the Tribunal’s jurisdiction.”
Conservative MP Jamie Schmale issued a statement on behalf of the party in response to the decision.
“For too long, Indigenous peoples have been waiting for the Liberal government to deliver on their empty promises and commitments to reconciliation. Canada’s Conservatives understand that the path forward in reconciliation must be paved in partnership with Indigenous communities,” he said.
“Not only has this court battle taken time and money away from genuine reconciliation efforts, but the continuation of this legal action will also have a devastating impact on Indigenous children and communities across Canada.”
NDP Leader Jagmeet Singh said in a tweet he believes the government is doing “the wrong thing.”
The tribunal found Ottawa discriminated against First Nations children by knowingly underfunding child and family services for those living on reserve.
Litigants in the case say this led to thousands of kids being taken away 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.
It 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 doesn’t prevent kids from accessing government services.
Asked directly whether each First Nations child, their parents and grandparents impacted by the system would receive $40,000 each, Miller repeated Friday that the details of the package were private.
“There are children who are entitled to more than $40,000, that’s clear,” he added later in the news conference.
In 2019, the federal government asked the Federal Court to dismiss the tribunal’s decisions, but the court last month upheld them.
With files from The Canadian Press.