Stop Indigenous child-welfare award so more can be paid, federal lawyers say

OTTAWA — While the federal Liberals insist they are appealing a Canadian Human Rights Tribunal ruling on First Nations children because it limits the families that could receive compensation, multiple parties arguing on behalf of Indigenous children and families say the government simply doesn't want to pay.

Legal arguments began in Federal Court Monday in Ottawa, where Justice Department lawyers asked Judge Paul Favel for a stay of the tribunal's September decision ordering the federal government to compensate First Nations families wrongly split apart by the child-welfare system.

The ruling said the Ottawa "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. Others were removed from their families because authorities couldn't provide supports to help keep them together.

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 underfunding 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."

Frater also argued that adhering to the Canadian Human Rights Tribunal's decision would cause "irreparable harm" to Canada in part because it forces the government to "take a piecemeal approach to settlement."

"Canada should not be required to engage in a process that does not lead to an inclusive, global settlement. We should do it right, but we should do it once," Frater said.

"The tribunal's judgement, with respect, is an obstacle to the inclusive talks necessary for a fair and equitable settlement and should be stayed for that reason alone."

Instead, the government intends to deal with a wider-scale compensation negotiation by pursuing a settlement to a separate class-action case brought earlier this year, Marc Miller, the newly appointed minister of Indigenous services, and Justice Minister David Lametti announced Monday morning.

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, in the 1990s. 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 Meawasige, was also added as a plaintiff and the lawsuit's claim was raised from $3 billion to $6 billion. The 25-year-old from Nova Scotia was born with cerebral palsy, spinal curvature and autism and had to fight Ottawa to get adequate funding for essential services.

Miller and Lametti say Canada "agrees it must fairly and equitably compensate First Nations children who have been negatively impacted by child and family policies."

"To that end, we will work with plaintiff's counsel with the goal of moving forward with certification of the Xavier Moushoom and Jeremy Meawasige 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.

Meanwhile, the human-rights tribunal decision came in September, ordering Ottawa 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 the Dec. 10 deadline imposed by the tribunal.

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

In court Monday, lawyers representing the Caring Society, the AFN and the Nishnawbe Aski Nation took issue with the notion that Ottawa is appealing the tribunal's decision because it wants to be more generous to Indigenous families hurt by Canada's child welfare policies.

"It is simply straining credulity to suggest that the real problem with these decisions is that they don't go far enough or that they're not sufficiently inclusive. That isn't the problem," said lawyer Julian Falconer, representing the Nishnawbe Aski Nation.

"They don't want this tribunal to order compensation, pure and simple. That's what the fight's about."

The Caring Society is asking for an abeyance of the government's application for a judicial review of the tribunal decision. It, along with virtually all other parties involved, argued Ottawa jumped the gun in taking the tribunal decision to court.

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 by all parties and a ruling issued by the tribunal on exactly how children and families would be paid. The government could then appeal that decision, if it felt it must, lawyers argued Monday. Allowing the current appeal to move forward could result in multiple judicial reviews happening simultaneously.

"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.

"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."

This report by The Canadian Press was first published Nov. 25, 2019.

Teresa Wright, The Canadian Press

Note to readers: This is a corrected story. A previous version misspelled Jeremy Meawasige's last name.