Ottawa urged to drop litigation on human rights tribunal orders that affect Indigenous children

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Representatives of the Canadian Bar Association are urging the federal government not to pursue any further legal action against a pair of human rights tribunal decisions that could make Canada liable for billions of dollars in compensation to Indigenous children and their families.

The Liberal government has until Oct. 29 to decide whether it will appeal a landmark ruling from the Federal Court, which upheld findings from the Canadian Human Rights Tribunal (CHRT) related to two orders that affect Indigenous children.

Legal professionals who belong to Canadian Bar Association groups devoted to Aboriginal law, youth law and human rights law sent a letter on Friday to Indigenous Services Minister Marc Miller and Justice Minister David Lametti. It asks the ministers to avoid “perpetuating further harm by continuing to challenge CHRT rulings in this matter.”

Prime Minister Justin Trudeau said on Monday, during a visit to the Tk’emlúps te Secwépemc First Nation, that the government has not yet decided whether to appeal the Federal Court’s ruling. He reiterated the government’s frequent assurance that it remains committed to compensating First Nations children.

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In 2019, the CHRT found that Ottawa had discriminated against Indigenous children on reserves by failing to provide funding for child and family services. In the tribunal’s ruling, it ordered the government to provide up to $40,000 to each First Nations child unnecessarily taken into care on Jan. 1, 2006, or later, and said its order also covered parents or grandparents of children denied essential services. A second tribunal decision, made last year, widened the scope of Jordan’s Principle, a rule that says when governments disagree about who is responsible for providing services to a First Nations child, they must prioritize helping the child.

Ottawa sought judicial review of the CHRT findings, but Federal Court Justice Paul Favel upheld both tribunal decisions on Sept. 29.

In the letter, the CBA representatives say that litigation against the First Nations Child and Family Caring Society and the Assembly of First Nations – which filed the complaints that led to the CHRT orders – stands in the way of reconciliation and does not serve the administration of justice.

The letter also expresses agreement with comments from Justice Favel that it is time to take meaningful steps to address the Truth and Reconciliation Commission’s calls to action. The TRC spent six years examining the impacts of government-funded, church-run residential schools, where thousands of Indigenous children died and many were abused.

It is best to “find resolution through good faith negotiation rather than further litigation,” the letter says.

“This is important on behalf of all the children who did not make it home from residential schools and for the Indigenous people who struggle today to address the lingering effects of those injustices.”

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The CBA is a national association representing 36,000 jurists, including lawyers, notaries, law teachers and students across Canada.

The government’s deliberations over whether to appeal are taking place against a backdrop of increased attention to reconciliation with Indigenous peoples in Canada. The reconciliation process was brought into sharp focus this summer after several First Nations announced that they had discovered unmarked burial sites near former residential schools.

When contacted on Tuesday, Mr. Miller’s office did not comment on the CBA letter. Instead, it pointed to a government statement from the day the Federal Court handed down its decision. The statement says Canada is reviewing the decision and that further information will be forthcoming.

Mr. Miller previously said his department is moving forward on a compensation model for Indigenous people who suffered the types of discrimination covered by the tribunal’s orders. He has also said that private discussions are happening related to two class-action lawsuits that deal with compensation for Indigenous children.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, said Tuesday that her sense, based on Mr. Trudeau’s most recent public comments, is that the government is going to appeal. If the government does decide to fight the court’s ruling, she said, it would be “beyond disappointing.”

“Every time they do this, the victims are the children and the families,” Ms. Blackstock said. “That’s what is always on my mind. They continue hurting people.”

NDP MP Charlie Angus, who has been outspoken throughout the CHRT case, told The Globe it is very concerning that the federal government has not said it will accept the Federal Court’s ruling.

“The ruling was damning and threw out every single one of the government’s arguments,” Mr. Angus said. He added that an appeal would result in Mr. Trudeau’s credibility on reconciliation being “finished forever.”

“They need to do the right thing,” Mr. Angus said. “That’s it. End of story.”

Jamie Schmale, Conservative MP for Haliburton-Kawartha Lakes-Brock, said in a statement Tuesday that the Liberal government has spent years on this “shameful court battle” and that reconciliation must be achieved in partnership with communities.

Ms. Blackstock said that Indigenous leaders who were present at the Tk’emlúps te Secwépemc First Nation on Monday along with the Prime Minister raised this case with him specifically, and that they stressed the need for the government to end litigation in order to prove that it is committed to reconciliation. She said Ottawa needs to “put down its sword.”

“It needs to stop fighting reconciliation,” she said. “It needs to understand that when First Nations children win, the country wins, too.”

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