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The Canadian Human Rights Tribunal sought to compensate Canada’s “victims of discrimination” through two orders now subject to a judicial review, a lawyer representing an organization for First Nations children told the Federal Court on Tuesday.

The court is hearing submissions this week on Ottawa’s application for a judicial review of findings from the Canadian Human Rights Tribunal (CHRT). A 2019 ruling from the tribunal found the federal government discriminated against Indigenous children on reserves by failing to provide funding for child and family services.

Sarah Clarke, who is representing the First Nations Child and Caring Society, told the court Tuesday that the tribunal quite reasonably found Ottawa was devoid of caution and was willful and reckless with respect to the lives of First Nations children.

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“We would ask your honour that you really review the record in its entirety, the purpose of the Canadian Human Rights Act and what the tribunal has reasonably done here, which is to compensate Canada’s victims of discrimination,” Ms. Clarke said.

Canada trying to save money at the expense of First Nations kids, lawyer argues

In 2019, the tribunal ordered Ottawa to provide up to $40,000 to each First Nations child unnecessarily taken into care on or after Jan. 1, 2006. The order would also require payments to parents or grandparents, and children denied essential services. A second order in 2020 broadened eligibility for what’s known as Jordan’s Principle.

The principle, named after five-year-old Jordan River Anderson, who died in hospital in 2005 after a lengthy battle between the federal and Manitoba governments over home care costs, requires that First Nations kids get access to services without delays caused by jurisdictional issues.

The tribunal said those eligible for the principle’s protections now include children who are registered or eligible to be registered under the Indian Act, children who have parents or guardians registered under the Indian Act, children recognized by their First Nations communities for the purposes of Jordan’s Principle and children who are ordinarily resident on a reserve. (Previously, a child who lived off reserve needed to be registered under the Indian Act in order to be eligible for Jordan’s Principle.)

The government’s request for a judicial review of the tribunal’s finding has sparked political pushback from opposition parties, who say that the Trudeau government should put a stop to the legal proceedings because they’re not in keeping with its commitment to reconciliation with Indigenous people. A non-binding motion passed in the House of Commons last week that called on the federal government to drop the review. Prime Minister Justin Trudeau and his cabinet abstained from the vote.

On Monday, Robert Frater, a lawyer for the Attorney-General of Canada, told the court that Canada acknowledges the need to reform its child welfare policies and programs, and recognizes that old policies caused harm. He also said Canada has recognized the need to compensate those who were affected.

But he said that the need to redress those wrongs and prevent them from happening again does not justify the tribunal’s orders. Mr. Frater said the CHRT’s decisions were reached through a flawed chain of reasoning. In its review application, Ottawa says it believes the tribunal erred by ordering the same monetary compensation to all of the First Nations children, parents and grandparents.

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David Nahwegahbow, a lawyer for the Assembly of First Nations, told the court Tuesday it is “frankly heartless” for Canada to be challenging the tribunal’s decisions, particularly on compensation, on the basis there was insufficient evidence to establish harms resulting from the removal of First Nations children from their families, homes and communities.

With a report from The Canadian Press

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