Feds seek judicial review of human rights tribunal ruling on Indigenous child welfare

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The Liberal government is challenging a September ruling from a human-rights tribunal on compensation for First Nations children unnecessarily taken into the child-welfare system.

Ottawa filed an application for a judicial review of the ruling on Friday – three days ahead of an Oct. 7 deadline – prompting Indigenous leaders, advocates and the NDP and Green Party to question the extent of Justin Trudeau’s commitment to reconciliation with Indigenous peoples.

Perry Bellegarde, National Chief of the Assembly of First Nations (AFN), said he is “extremely disappointed” to learn of the government’s application.

“This is beyond unacceptable,” he said in a statement. “The Government of Canada is once again preparing to fight First Nations children in court.”

The Canadian Human Rights Tribunal ruled last month that the federal government willfully and recklessly discriminated against Indigenous children on reserve by failing to provide funding for child and family services.

It also ordered Ottawa to provide up to $40,000 to First Nations children who were unnecessarily taken into care on or after Jan. 1, 2006, adding that its orders also cover parents or grandparents and children denied essential services.

At the time of the tribunal’s ruling, the AFN said more than 54,000 First Nations children could be eligible for compensation with an estimated total of around $2-billion.

The application filed on Friday says Ottawa “acknowledges the finding of systemic discrimination and does not oppose the general principle that compensation to First Nations individuals affected by a discriminatory funding model can be made in appropriate circumstances.”

But it states that the government sees grounds for the application based on the fact that it believes the tribunal erred in its decision, including on the order of monetary compensation to First Nations children, parents and grandparents under the Canadian Human Rights Act.

Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society, called the government’s decision “disappointing" on Friday, adding that it is “another signal they are not accepting responsibility for their willful and reckless discrimination against children in ways that are causing child deaths and separation from families.”

“I don’t understand why they don’t just do the right thing for children," she said.

B.C.'s independent watchdog for children and youth also criticized the federal government’s move, adding that it is extremely disappointed.

The application comes at just past the halfway point in the election campaign as Mr. Trudeau seeks a second mandate and points to his record, including on his signature pledge to reconcile the country’s relationship with Indigenous peoples.

On Friday, Mr. Trudeau, campaigning in Saint-Anaclet, Que., defended his government’s actions, noting that it absolutely agrees there must be compensation but he stressed the question is “how.”

The tribunal’s decision came days before the writ was dropped, Mr. Trudeau added, saying it is not possible to respond to it given “the electoral context we are in.”

“The Canadian Human Rights Tribunal expects us to bring in a plan of action by December," he said. “That is simply not practical.”

The tribunal’s ruling is “significant” and raises important questions and considerations such as who is to be compensated, as well as the role of the tribunal itself, Seamus O’Regan, the Minister of Indigenous Services, added on Friday.

“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 in an interview.

The stay application itself notes that the government is concerned about “irreparable harm” that could be caused to Canada, adding that 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.”

Conservative Leader Andrew Scheer had urged the government to seek a judicial review while the NDP and Green Party said the government should accept the tribunal’s findings.

The decision to challenge the tribunal demonstrates a “complete departure” from the values Mr. Trudeau talks about in public, NDP Leader Jagmeet Singh said in Saskatoon on Friday.

“It is clear there are two different Trudeaus: one that talks about the importance of Indigenous relationships, and the other that takes Indigenous kids to court," he said.

Green Party Leader Elizabeth May also called on Mr. Trudeau to “explain and reverse this outrage.”