The Federal Court will begin hearing a child-welfare case Monday that emerged during the election as a key flashpoint between Justin Trudeau and Indigenous leaders whom he has pledged to work with.
The case concerns a ruling from the Canadian Human Rights Tribunal that said the federal government willfully and recklessly discriminated against First Nations children living on reserve by failing to provide funding for child and family services.
The tribunal’s decision in September ordered Canada to provide compensation of up to $40,000 to First Nations children who were unnecessarily taken into care on or after Jan. 1, 2006, and said it applied to parents or grandparents and children denied essential services.
Government official Sony Perron said this fall that satisfying the entire order could cost up to $7.9-billion, depending on the final percentage of children necessarily removed from care and if the compensation process continues until 2025-26.
In October, Ottawa asked the Federal Court to review the ruling and requested a stay – a decision that prompted immediate backlash from a number of Indigenous leaders and advocates, as well as the NDP and Green Party, who questioned the decision given Prime Minister Justin Trudeau’s commitment to reconciliation with Indigenous peoples.
The hearing for the request for a stay, which begins Monday and continues Tuesday, is to be webcast by the Federal Court as part of a pilot to give access to proceedings of significant public interest for the media and the public.
Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society, said the court’s decision to webcast the proceedings is a “landmark” move that will allow Canadians to hear the arguments for themselves.
“I really welcome that,” she said. "People can listen to Canada and listen to us and then make up their own minds about what they think is going on here."
The government is “totally out of step” with the views of many Canadians who can’t understand “why they’re doing this," Ms. Blackstock added.
During the election campaign, Mr. Trudeau defended his government’s actions to file an application for a judicial review, saying it agreed there must be compensation, but he stressed the question is “how.”
The tribunal’s decision came days before the writ was dropped, Mr. Trudeau said, adding it was not possible to respond to it, given the electoral context the government was in.
Then-Indigenous services minister Seamus O’Regan also said the tribunal ruling raised important considerations such as the role of the tribunal itself.
“We are asking the Federal Court to review the ruling and the stay just allows us to put a pause while … the court considers the judicial review," he said.
Mr. O’Regan was moved to natural resources from Indigenous services last week as Mr. Trudeau announced the cabinet for his minority government. Quebec MP Marc Miller has taken on the Indigenous file.
Veteran NDP MP Charlie Angus, an outspoken advocate on Indigenous issues, said he did not buy Mr. Trudeau’s explanation during the election campaign and he urged the government to change course.
The child welfare case is going to continue to “dog” Mr. Trudeau in the new Parliament, he added, saying his party has requested the Trudeau government drop the appeal of the September findings.
“We will stay on him until they do the right thing,” Mr. Angus said. “It is a fundamental issue for us going into this Parliament. Mr. Trudeau will have to take responsibility for his actions.”
It is going to be difficult for the Prime Minister to build relations if he continues to use the powers of the Justice Department to fight fairness for Indigenous children, Mr. Angus added.
The government’s stay application says Ottawa is concerned about “irreparable harm” that could be caused to Canada, adding the “hardship” caused to the country and the public interest “significantly outweighs any harm" caused by a delay in implementing the tribunal’s orders on compensation.
Mr. Perron, the associate deputy minister of Indigenous Services Canada, also said in an affidavit this month that Canada “might not agree” with the tribunal’s compensation ruling but that does not undermine its commitment to improving the lives of First Nations children and remedying the discriminatory practices that were at the heart of the claim before the tribunal.
Ms. Blackstock said the hearing will afford an opportunity for Canada to bring political statements in line with what is really happening in court, adding she has written to the Prime Minister to express concern over mixed messages and the harm it causes.
"I guess we’ll all watch to see if there’s any change,” she said.
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