There has been no indication that Canada will withdraw its application for judicial review of two orders from a human-rights tribunal despite a motion that passed in the House of Commons on the matter on Monday, First Nations child advocate Cindy Blackstock says.
Ms. Blackstock told The Globe and Mail that her organization, the First Nations Child and Family Caring Society of Canada, is preparing for hearings that will be held in Federal Court beginning Monday.
“We will go to court and the children will win,” she said. “And when they do, Canadians will win, too.”
An NDP motion passed in the House of Commons on Monday with 271 MPs from all political parties voting in favour, including several Liberal MPs, and 0 against. The motion included calls for Ottawa to end legal actions against Canadian Human Rights Tribunal orders on discrimination of Indigenous children.
Prime Minister Justin Trudeau and members of his cabinet abstained from the vote on the motion. Its passage is seen as an expression of the House but is non-binding, meaning the government cannot be forced to take action. The Liberal government has faced increased political pressure on supports offered for First Nations children after remains of children were reported on the site of B.C.’s former Kamloops Indian Residential School.
Mr. Trudeau said Tuesday that his government has been “very clear that kids or now adults” who suffered harm at the hands of the child welfare system deserve compensation. He also noted the passage of legislation on the child welfare system and work to ensure Indigenous communities “stay in charge of and can protect, within their language and culture, kids who are at risk.”
NDP MP Charlie Angus said Tuesday the Liberal caucus did not stand with the Prime Minister on the motion Monday.
“This is supposed to be his most important relationship and he skipped the vote,” Mr. Angus said. “I don’t think that that gives him a free pass, then, to go back to court to continue to fight the children. Parliament has spoken.”
Ottawa has filed applications in Federal Court for judicial review of two orders from the Canadian Human Rights Tribunal. The body was created by Parliament in 1977 and legally decides whether a person or organization has engaged in a discriminatory practice as defined by the Canadian Human Rights Act. The purpose of the act is to protect individuals from discrimination and states all Canadians have the right to equality, equal opportunity, fair treatment and an environment free of discrimination.
In 2019, the tribunal found 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.
Ottawa said in its legal 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 the government sees grounds for the application based on its belief 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.
A second order from the tribunal is related to Jordan’s Principle, which is designed to ensure First Nations children can access services and supports when they need them. It requires that children get access to services without delays caused by jurisdictional issues.
In 2020, the tribunal found that criteria for Jordan’s Principle could include a child who is registered or eligible to be registered under the Indian Act, a child who has a parent or guardian registered under the Indian Act, a child recognized by their community for the purposes of Jordan’s Principle and a child who is ordinarily a resident on reserve.
The government also said legal issues around the scope of the tribunal’s authority to issue these decisions are important and it was seeking guidance from the court.
A spokesperson for Indigenous Services Minister Marc Miller said in a statement that Ottawa has made “substantial progress” to respond to Canadian Human Rights Tribunal rulings.
“Our position in regards to the September, 2019, ruling is that the CHRT is overreaching their jurisdiction, and as a result, is unilaterally imposing a one-size-fits-all solution that hinders fair compensation,” said press-secretary Adrienne Vaupshas.
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