Ottawa admits it's 'wrongdoer' as judge prepares ruling on compensating First Nations children

Federal Court Justice Paul Favel said Tuesday he would soon issue a ruling on a federal government motion that is part of a two-phase legal strategy to quash a human rights tribunal ruling ordering compensation for First Nations children apprehended through the on-reserve child welfare system.

Favel said he would issue the ruling "very quickly" on a federal government motion to stay — or pause the order — until the same court rules on a related application filed by Justice Canada lawyers for a judicial review aimed at quashing the Canadian Human Rights Tribunal's ruling.

"I am fully aware of the time constraints that the parties have all expressed," said Favel, following the second day of hearings before the Federal Court. "I do know I will do my utmost to render [a judgment] as soon as humanly possible."

The tribunal ruled on Sept. 6 that the federal government should pay $40,000 in compensation to each First Nations child unnecessarily taken from their homes on reserves and in Yukon and put into care since 2006. 

The ruling included an additional order of $20,000 in compensation to each parent or grandparent (depending on which was the primary caregiver) whose children were taken.

The ruling also ordered Ottawa to pay $40,000 to all First Nations children — along with their parents or grandparents — who were forced to leave their homes to access services, or who were denied services covered by the policy known as Jordan's Principle between Dec. 12, 2007, and Nov. 2, 2017.

Under Jordan's Principle, the needs of a First Nations child requiring a government service take precedence over jurisdictional issues over who should pay for it.

The compensation order sprung from a landmark 2016 ruling by the human rights tribunal that found the federal government discriminated against First Nation children by underfunding on-reserve child welfare services.

Justice Canada lawyer Robert Frater told the court in his final argument Tuesday that Canada readily admits it's the "wrongdoer" in the case, but the human rights tribunal order is so flawed in law that it required the federal government to challenge it. 

"Canada has no emotional case to make here. We are the wrongdoer, our funding was clearly discriminatory, but this case is about more than emotion. It is about getting the compensation question right," said Frater. 

"That will not and cannot happen while this [human rights tribunal] judgment remains in effect."

The federal government indicated this week it wants to settle the compensation issue through a separate, $6 billion proposed class action filed in March. The lawsuit was filed on behalf of children apprehended through the child welfare system or who were denied services that should have been provided under Jordan's Principle dating back to 1991.

The class action also includes a family class that comprises siblings, parents or grandparents of children who were apprehended through the child welfare system. 

Favel will also rule on a counter motion seeking a freeze on Ottawa's judicial review application until the tribunal decides on the mechanics of distributing the compensation. The tribunal set Dec. 10 as the deadline to hear proposals on how the compensation should be handled.

The motion was filed by the First Nation Child and Family Caring Society, which, along with the Assembly of First Nations, filed a human rights complaint in 2007 that led to the compensation order.

Sarah Clarke, the lawyer representing the Caring Society, told the court that Canada has opposed the human rights case before the tribunal at almost every step for 13 years.

"Listen to the voices in this room who represent the victims, those who have been wrong-done-by and listen to what they are asking for, because over the last 13 years these children and families have been waiting," she said. 

"It's all well and good for Canada to say today...that they want to compensate First Nation children, but they don't say why they can't do it here and elsewhere...they owe it to the kids to try."

Singh says Trudeau needs to drop challenge

NDP Leader Jagmeet Singh, who attended Tuesday's hearing, said he told Prime Minister Justin Trudeau during a recent meeting to drop its challenge of the tribunal compensation order.

"The right thing to do is say we're going to drop the appeal and immediately get down to addressing the inequality and start funding kids equally," said Singh. 

Singh said it's not enough for the federal government to deal with this matter solely through the separate class action lawsuit. 

He said the federal government has been fighting the tribunal for 13 years and needs to comply with the order. 

"How can anyone that's faced this injustice believe that the government is not going to magically do what's right? The tribunal is pushing the government, and rightly so," said Singh. 

"The government is not going to act unless it's pushed."

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, accused the federal government of shopping around for the best deal. 

"If they have a proposal that honours the children, honours the ruling of the tribunal than we're all ears," Blackstock said.  

"What I'm not prepared to do is negotiate down human rights damages. Canada is facing this award for a reason because it has willfully and recklessly discriminated against these kids in a worst case scenario, and one of my key things is they need to end the discrimination." 

The federal government should pay both the tribunal order and whatever settlement is necessary to make amends for its discrimination, according to Blackstock.

"It's not an either or," Blackstock said. "It's a yes and."

So far, Blackstock said she is not involved in any discussions pertaining to the proposed class action.

Honoured with song

For a few moments after the hearing, the lobby of the Supreme Court of Canada fell silent to hear the voice of Patricia Stacey sing a sacred water song honouring women for Blackstock.

Stacey, 64, is a survivor of a federally operated day school on-reserve in the Mohawk territory of Kahnawake, Que. She attended the Kateri Tekakwitha School, which was run by the Roman Catholic Church, from age eight to 12 in the 1960s.

"I know what it is to be damaged and nobody listens," Stacey said as she fought back tears. 

"It's very emotional because the children need to be heard."