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Indigenous Services Minister Marc Miller during a news conference, May 19, 2021, in Ottawa.Adrian Wyld/The Canadian Press

Lawyers arguing on behalf of First Nations children and youth unnecessarily taken from their families by an underfunded and discriminatory child-welfare system say Canada harmed these kids, but is “shamefully” trying to avoid paying for its wrongs.

But even while federal officials insist they believe these children should be compensated, their lawyers argue the Canadian Human Rights Tribunal’s decision was based on “seriously flawed reasoning” when it awarded $40,000 to each Indigenous child and their parents and grandparents after being separated by the foster system.

Opposing arguments were heard in Federal Court Monday on the first of five days of hearings in the case, which are taking place virtually due to the ongoing COVID-19 pandemic.

The federal government’s lawyer, Robert Frater, told Federal Court Justice Paul Favel the government contends the tribunal’s award was far too broad and sweeping.

Frater argues the tribunal did not have the authority to award individual damages because it did not hear any evidence or testimony from children or their families to justify individual compensation.

“The compensation decision was inconsistent with the nature of the complaint, the particulars to that complaint and the evidence, and thus exceeded the tribunal’s limited statutory jurisdiction,” he told the court.

“There are many examples of irrationality in the tribunal’s reasoning process. Seriously flawed reasoning led to unreasonable outcomes.”

He also argues the tribunal’s decision to award its maximum amount possible does not take into account that some children may have suffered more harm than others.

But Sarah Clarke, one of a team of lawyers representing the First Nations Child and Family Caring Society, which filed the original complaint over 14 years ago, focused her arguments on the children at the heart of the case and on policies and practices the tribunal has ruled were highly discriminatory – an argument Ottawa does not contest.

In a 2016 CHRT ruling on the merits of the case, the tribunal noted that Canada’s funding formula for Indigenous child-welfare “provided an incentive to remove children from their homes as a first resort rather than a last resort,” Clarke said.

Agencies did not allow workers to deliver actual services based on needs of First Nations families and were provided with insufficient funding to do their work, the CHRT found in 2016.

“While this underfunding has massive and complicated impacts on the entire system, which again the tribunal did an excellent job of articulating, at the level of the child Canada’s discriminatory conduct meant that they were denied services that could have kept them safely at home,” Clarke told the court.

“Instead, they were removed and they were never given that chance.”

Clarke argues it was the systemic discrimination of the policies and practices themselves, based on the fact these children were of a different race, that warranted the tribunal’s award – not the individual harms suffered by each child.

The tribunal’s September 2019 ruling said 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.

Another of Ottawa’s arguments is that the human-rights tribunal “erred in law” by “improperly” turning the case into a class action by awarding individual compensation. Frater argues the tribunal did not have the authority to award individual damages.

Clarke disputes this, saying the tribunal’s ruling was grounded in solid legal principles and human rights law.

“There is no legal foundation or policy reason to deny the tribunal’s jurisdiction to award compensation to the children in this case. Canada’s arguments in this regard are not about advancing the rights of First Nations children, or protecting the rights of victims,” she said.

“Instead, these arguments reflect a shameful strategy aimed at saving money at the expense of First Nations children and families across the country.”

Ottawa instead wants to compensate these children and their families through a settlement in two separate but related class-action lawsuits, which Indigenous Services Minister Marc Miller says could lead to higher compensation paid to those who suffered the greatest harms.

NDP Leader Jagmeet Singh said the human rights tribunal’s rulings are a bare minimum when it comes to rectifying the damages inflicted on Indigenous children.

“The fact that the Liberal government wants to fight the bare minimum, wants to spend millions of dollars fighting a decision from one of the highest tribunals respecting human rights in Canada, really shows their lack of commitment,” he told reporters in Ottawa Monday.

He is calling on to government comply with the tribunal’s orders, and if additional damages are warranted – as Ottawa has argued – the government can cover them later.

Further arguments will be heard Tuesday from the Caring Society and from the Assembly of First Nations, which is one of a large group of Indigenous and human rights organization participating on the case.

With files from Maan Alhmidi

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