Ottawa plans to settle First Nations child welfare class-action lawsuit as it battles tribunal order

Ottawa plans to settle First Nations child welfare class-action lawsuit as it battles tribunal order

The Trudeau government announced Monday it's planning to settle a class-action lawsuit filed on behalf of First Nations children affected by the on-reserve child welfare system, while its lawyers launched arguments in a courtroom aimed at torpedoing a human rights tribunal order that it pay compensation to many of the same affected children.

Justice Minister David Lametti and Indigenous Services Minister Marc Miller issued a joint statement that the government would work with plaintiffs' counsel with the goal of moving forward with certification of a class action filed in March. It seeks $6 billion in compensation for First Nations children impacted by the on-reserve child welfare system and who were denied health services. 

"The Government of Canada is committed to seeking a comprehensive settlement on compensation that will ensure long-term benefits for individuals and families and enable community healing," the statement said. 

"The class action model is designed to give individuals the chance to have their interests represented, to address the interests of all impacted individuals and to allow parties to arrive at an appropriate resolution of past harms."

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.

David Sterns, a partner with Toronto-based Sotos LLP, one of three law firms bringing forward the lawsuit, said he was notified Monday morning of the federal government's intention to proceed with certification. 

The three law firms brought the action on behalf of Xavier Mushroom and Jeremy Meawasige — the representative plaintiffs in the case.   

"This is a positive development. Agreement to certification means we have the forum to pursue a global resolution that will be subject to court approval," said Sterns. 

"We view it as a positive. So far, these are just words. They need to match their words with action."

Sterns said any settlement would eventually involve the parties to the human rights tribunal case, which include the First Nations Child and Family Caring Society and the Assembly of First Nations.

Indigenous Services Minister Marc Miller said the Trudeau government has a solid track record dealing with historical wrongs inflicted on Indigenous children by Ottawa's historic policies through class-action settlements. Miller pointed to recent settlements around the Sixties Scoop and Indian day schools. 

We have shown good faith in engaging with families, with victims, in ensuring this compensation is properly and fairly addressed," said Miller. 

"We are committed to compensation; we do not deny the discrimination."

Fighting tribunal order

The two ministers issued the statement about the class-action suit as federal government lawyer Robert Frater told Federal Court Justice Paul Favel the Sept. 6 Canadian Human Rights Tribunal order — that Ottawa provide $40,000 in compensation to each First Nations child impacted by the child-welfare system or denied health services — was an overreach.

Adrian Wyld/The Canadian Press

The compensation order, which also includes payments of at least $20,000 to some parents and grandparents, followed a 2016 ruling that found Ottawa discriminated against First Nations children by underfunding child-welfare services and by not following Jordan's Principle.

Frater was arguing for a motion seeking a stay — a pause — of the tribunal compensation order until the Federal Court decided on a judicial review filed in October by Ottawa.

"The errors of this [tribunal compensation] judgment run wide and deep," said Frater, in his arguments. 

"Canada is committed to remedying the injustices of the past, but it has to be done in a fair and equitable way."

Frater argued that the case before the tribunal, originally filed in 2007, was about systemic discrimination, which required a systemic fix that the federal government had already begun. He also said the compensation order wandered outside of the tribunal's legislative parameters into the purview of class-action law. 

He said the compensation order was fundamentally unfair because it treated all cases the same, regardless of individual circumstance.

"There ought to be some sort of recognition of individual experience," Frater said.

Ignoring the continuing tragedy

Barb McIsaac, a lawyer for the First Nations Child and Family Caring Society, told the court that while the government says it favours compensation, its actions haven't matched its words.

"My friend has stated over and over again, as have various politicians, that Canada wants to compensate the children, but it hasn't done anything yet."

The Caring Society, which was the lead on the human rights complaint, argued that the court should put a freeze on the judicial review until the tribunal decides on the process to distribute the compensation. 

The tribunal set Dec. 10 as the deadline for all parties to submit proposals on the mechanism for distributing the compensation. 

"The court can only fully understand and rule on the reasonableness of the compensation once all aspects of the compensation decisions have been determined by the tribunal," McIsaac said.

"The arguments of the attorney general are not in the best interest of the children, but rather in this argument that we have to have perfection. If we wait for perfection, we'll be here again and again and again, and we'll never have a solution."

Cindy Blackstock, who heads the Caring Society, said the government is ignoring the continuing tragedy inflicted on First Nations children by the systemic discrimination exposed by the human rights tribunal.  

"So this waiting around might make sense for them bureaucratically or even politically," Blackstock said.

"But for these children, they will never get their childhoods back, and in some cases they'll never get their lives back, and in some cases they'll never get their families back, and that is what Canada isn't paying attention to." 

NDP MP Charlie Angus, who attended the Monday hearing, said the Trudeau government needs to drop its challenge of the tribunal's compensation order.

"The damage that this system has done is incalculable and yet the Government of Canada is here with all their lawyers, with all their power, to fight yet once again a basic finding that they've been discriminating against children," Angus said.

Class action move 'political obfuscation'

Julian Falconer, the lawyer acting on behalf of Nishnawbe Aski Nation, which intervened in the case, said the government's argument that the tribunal ruling covers too few people rings hollow.

"There is a simple answer to that — accept the order and then compensate others," said Falconer, who was acting on behalf of an organization that represents 49 northern Ontario First Nations — some of the poorest in the country. 

"There is nothing stopping Canada from adding to the compensation."

Blackstock said the move by the federal government to announce it was proceeding with the class-action lawsuit rang "of political obfuscation and putting this downstream." Blackstock said the class action actually leaves people out because it doesn't include the parents or grandparents of apprehended children in its statement of claim.

"It doesn't deal with the pain and suffering that their families went through," said Blackstock. 

"It's the same old story where they're saying they'll talk about things. There's no commitment to change children's lives."

The hearing continues Tuesday.