Two orders from a human rights tribunal on discrimination against Indigenous children are unreasonable, a lawyer for the Attorney-General of Canada said on Monday.
The Federal Court is hearing Ottawa’s application for a judicial review of findings from the Canadian Human Rights Tribunal (CHRT). The issue is a legal matter and a source of political pressure for the Trudeau government, which says its most important relationship is with Indigenous peoples. Critics argue that Ottawa’s approach in court is out of step with its commitment to reconciliation.
Last week, an NDP motion that the federal government accelerate efforts to document unmarked graves at residential schools and drop legal battles against Indigenous people passed in the House of Commons with 271 MPs from all parties voting in favour, including several Liberals, and 0 against. Prime Minister Justin Trudeau and members of his cabinet abstained. The motion is not binding on the government.
The tribunal in 2019 ordered Ottawa to provide up to $40,000 to First Nations children who were unnecessarily taken into care on or after Jan. 1, 2006. Its order also covers parents or grandparents, and children denied essential services. A second order requires services to be provided to children without delays over jurisdictional issues.
Lawyer Robert Frater told the court on Monday that Canada acknowledges the need to reform its child welfare policies and programs, and recognizes that old policies caused harm. He also said it has recognized the need to compensate those who were affected.
The need for reform has been rendered “all the more urgent and poignant” by the discovery of remains at the former Kamloops residential school, Mr. Frater added.
But he said the need to redress those wrongs and prevent them from happening again does not justify the tribunal’s orders.
Mr. Frater said the government will try to demonstrate that the CHRT’s decisions were reached through a flawed chain of reasoning. For example, he said the tribunal failed to differentiate among the children’s experiences, and that the orders lack any sense of proportion.
“Seriously flawed reasoning led to unreasonable outcomes,” he said.
NDP Leader Jagmeet Singh said on Monday the Liberal government wants to “spend millions of dollars fighting a decision from one of the highest tribunals respecting human rights in Canada” and this demonstrates a lack of commitment.
Indigenous Services Minister Marc Miller said the Prime Minister been clear that First Nations children who have suffered discrimination at the hands of a “broken child-welfare system in Canada will be fairly, justly and equitably compensated.”
Mr. Miller said the issue is immensely complex from a legal perspective, but he and Justice Minister David Lametti have spent an “immense amount of time” to make sure the government’s approach in court is respectful of its relationship with Indigenous communities.
The tribunal was created by Parliament in 1977 and decides whether a person or organization has engaged in a discriminatory practice as defined by the Canadian Human Rights Act.
The tribunal’s 2019 ruling said the federal government willfully and recklessly discriminated against Indigenous children on reserve by failing to provide funding for child and family services.
Ottawa said in its application for judicial review that it did 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 said it believes the tribunal erred in its decision, including ordering the same monetary compensation to all of the First Nations children, parents and grandparents.
Mr. Frater said Monday that the compensation decision was inconsistent with the nature of the complaint of discrimination, the particulars of it and the evidence, and that it exceeded the tribunal’s “limited statutory jurisdiction.” He also said the evidence does not support the “sweeping orders,” and the tribunal’s reasoning process shows examples of irrationality.
“Our argument is that this decision suffers from a variety of defects,” he said.
The tribunal’s second order is related to Jordan’s Principle, which is designed to ensure First Nations children can access services and supports when they need them.
In 2020, the tribunal found criteria for Jordan’s Principle could include a child who is registered or eligible to be registered under the Indian Act, has a parent or guardian registered under the Indian Act, is recognized by their community for the purposes of Jordan’s Principle and is ordinarily a resident on reserve.
Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, told The Globe and Mail last week that the children “will win” in court. She added that when they do, “Canadians will win too.”
Sarah Clarke, one of the lawyers for the caring society, said Monday the tribunal’s decisions were grounded in solid legal principles and human rights law.
Canada’s arguments do not advance the rights of First Nations children or protect the rights of victims, she added. Ms. Clarke said the arguments reflect a “shameful strategy” aimed at saving money at the expense of the children and families.
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