The Federal Court has rejected two requests from Ottawa to review findings from the Canadian Human Rights Tribunal on compensation and eligibility for First Nations children.
The decision, released Wednesday afternoon, came down after Ottawa filed applications in the court for judicial review of two orders from the tribunal, which was created by Parliament in 1977 to legally decide whether a person or organization has engaged in a discriminatory practice as defined by the Canadian Human Rights Act.
The tribunal said in 2019 that Ottawa willfully and recklessly discriminated against Indigenous children on reserve by failing to provide funding for child and family services. It also ordered Ottawa to provide up to $40,000 to First Nations children who were unnecessarily taken into care on or after Jan. 1, 2006, adding that its orders also cover parents or grandparents and children denied essential services.
In its legal application for a judicial review, Ottawa said that it acknowledged the finding of systemic discrimination and it did not “oppose the general principle that compensation to First Nations individuals affected by a discriminatory funding model can be made in appropriate circumstances.”
But it stated that the government saw grounds for the application based on its belief the tribunal erred in its decision, including on the order of monetary compensation to First Nations children, parents and grandparents under the Canadian Human Rights Act.
Judge Paul Favel said his decision on Wednesday that the applicant – which refers to the federal government – had not succeeded in establishing that the compensation decision is unreasonable.
“The tribunal, utilizing the dialogic approach, reasonably exercised its discretion under the CHRA [Canadian Human Rights Act] to handle a complex case of discrimination to ensure that all issues were sufficiently dealt with and that the issue of compensation was addressed in phases,” he wrote in his decision.
A second order from the tribunal related to Jordan’s Principle, named after a five-year-old boy, Jordan River Anderson, who died in hospital in 2005 after a lengthy battle between the federal and Manitoba governments over home care costs. It is designed to ensure First Nations children can access services and supports when they need them. It requires that children get access to services without delays caused by jurisdictional issues.
Last year, the tribunal found that criteria for Jordan’s Principle could include a child who is registered or eligible to be registered under the Indian Act, a child who has a parent or guardian registered under the Indian Act, a child recognized by their community for the purposes of Jordan’s Principle and a child who is ordinarily a resident on reserve.
Judge Favel said that he also found the applicant “has not succeeded in establishing that the eligibility decision is unreasonable.”
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Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society, told the Globe and Mail she was “overjoyed” by the decisions made by the Federal Court, adding she hopes Ottawa “puts down their sword and actually do the right thing and end this fight against these kids and their families.”
“Both judicial reviews are dismissed,” she said. “The court upholds both tribunal orders.”
Ms. Blackstock said Wednesday that she was thinking of all the survivors who “told their truth” through unbelievable pain about residential schools who often weren’t believed.
She said they shared these stories so their grandchildren would not have to experience injustice. She also noted that child welfare is the top calls to action from the Truth and Reconciliation Commission, which spent six years examining the impacts of residential schools in Canada. Thursday marks the first federal National Day of Truth and Reconciliation.
“Tomorrow is the day we finally honour these survivors,” Ms. Blackstock said. “This court order helps end the injustices to their grandchildren and makes those calls to action real. Now we have to hope and pray that the federal government does the right thing and does not appeal this decision.”
Ottawa has 30 days to determine if it will appeal the decision at the Federal Court of Appeal, she said, as she urged them not to do so.
The federal government has not immediately commented on the decisions from the Federal Court or its future plans. It has previously said that it saw legal issues around the scope of the tribunal’s authority to issue these decisions are important and it was seeking guidance from the court.
In June, members of all parties passed a motion in the House of Commons that called for the federal government to end legal actions on the two human rights tribunal orders discrimination of Indigenous children.
The motion, put forward by the NDP, said the government should also accelerate implementing the calls to action from the Truth and Reconciliation Commission issued in 2015, including to provide “immediate funding for further investigation into the deaths and disappearances of children at residential schools .”
The motion, which is an expression of opinion from the House but was not binding, got support from some Liberals, in addition to the Conservatives, Bloc Québécois and Greens. The final vote was 271 in favour and 0 against.
“Today was an absolute victory for First Nation children,” Ontario NDP MP Angus said Wednesday. “For six years Justin Trudeau spent millions fighting the rights of Indigenous children and trying to overturn a ruling that found his government guilty of ‘wilful and reckless’ discrimination against vulnerable Indigenous kids. The court has thrown his case out.”
Mr. Angus also said it is imperative that the federal government take clear steps towards truth, justice and reconciliation for all Indigenous people and that Prime Minister Justin Trudeau needs to accept responsibility to deal with the federal government’s “systemic denial of rights.”
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