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Indigenous Leaders ‘Confounded’ as Ottawa Appeals Order to Compensate Kids

Government says the legal move is needed to negotiate an agreement and fix broken child welfare system.

Katie Hyslop 31 Oct

Katie Hyslop is a reporter for The Tyee. Reach them here.

The federal government has put forward an appeal to a Federal Court ruling upholding compensation orders for up to 165,000 First Nations kids and families discriminated against by the child welfare system.

However, at a press conference Friday, Crown-Indigenous Relations Minister Marc Miller said the appeal — while formally filed — is on pause while Ottawa works to reach an out-of-court agreement with Indigenous groups. Miller made the announcement alongside Justice Minister David Lammetti and was joined virtually by Patty Hajdu, minister of Indigenous services.

Starting Monday, Ottawa will sit down with the Assembly of First Nations and the First Nations Child & Family Caring Society to negotiate a financial package that will not only compensate the children affected, but reform a “broken” child welfare system and settle three class action lawsuits filed on behalf of First Nations youth.

“Fixing a broken system requires long-term reform,” Hajdu said. “The Government of Canada is determined to eliminate discriminatory policies and practices against Indigenous children, and we are doing it hand in hand with Indigenous partners.”

But the government does not believe the $40,000 per child compensation order is adequate, Miller said.

“There are children that are entitled to more than $40,000, and that’s something that’s probably hard for people to hear, but that’s the reality of it,” Miller said, adding the government has tabled a “significant” financial package in the billions of dollars.

So why the appeal? Miller said simply compensating the families would not be enough to fix the broken system.

“There’s no simple answer to the ‘Why don’t you just pay it out?’ argument. But people need to realize, and it’s very important, that there are parties that would not be compensated fairly if we were simply to implement the orders in the way that they have been issued,” he said.

The appeal is a response to the Federal Court ruling last month that the Canadian Human Rights Tribunal had the authority to issue a compensation order to the federal government.

Friday was the last day the federal government could file an appeal of the Federal Court decision, which upheld compensation orders made by the tribunal in 2019, as well as its 2020 decision on who was eligible for compensation for denied health-care coverage.

In 2019, the Canadian Human Rights Tribunal issued a compensation order for the 165,000 First Nations kids and their families, calling on the federal government to pay $40,000 to each child removed from their parents' care since 2006, with their caregivers entitled to $20,000 for every child removed.

The tribunal also called on the government to give $40,000 to every child denied medical coverage under Jordan’s Principle between 2007 and 2017.

Jordan’s Principle is named after Jordan River Anderson, a young boy from Norway Cree House Nation in Manitoba who died in hospital while the provincial and federal governments disputed who should pay for his in-home care.

Jordan’s Principle calls on whichever government receives the medical bill for a First Nations’ child to pay for it, determining responsibility for the bill later.

It’s been nearly six years since the tribunal ruled the federal government was willfully discriminating against 165,000 First Nations children and their families impacted by the government’s intentional and systematic underfunding of their child welfare and health-care services.

But despite putting more federal dollars into the system, seven court cases lost by the federal government and 20 non-compliance orders issued by the tribunal, the amount of funding for on-reserve child and family services and for medical costs via Jordan’s Principle remains below what’s provided for non-First Nations kids and families.

The federal government adopted Jordan’s principle in 2007. However since then, it has spent hundreds of thousands of dollars in court cases to fight paying for medical services and supplies.

The Canadian Human Rights Tribunal instructed the federal government to work with the Assembly of First Nations and First Nations Child & Family Caring Society — which first brought the case to the tribunal in 2008 — on determining who is eligible for compensation.

But just two weeks before the 2019 federal election, the Liberal government announced it would be filing a judicial review of the compensation order with the Federal Court.

In 2020, the government requested that the Federal Court dismiss a tribunal’s decision expanding eligibility for Jordan’s Principle to all children with Indian Act status; eligibility for status; or parents or guardians who have status, live on-reserve and whose First Nation acknowledges their membership.

Ottawa argues Jordan’s Principle should be restricted to children with Indian Act status or those living on reserve only.

On Sept. 29, 2021, nine days after the Liberals won a minority government and one day before the first National Day for Truth and Reconciliation, the Federal Court dismissed the federal government’s requests to set aside the tribunal’s orders.

On Friday, Miller said simply paying the compensation as ordered would not be fair to children who deserve more than $40,000, nor would it fix a broken child welfare system. So the federal government has put a significant financial package on the table to negotiate directly with the Assembly of First Nations and First Nations Child & Family Caring Society.

How much money is offered will remain private until a deal is reached, Miller said, but it “makes sense in the spirit of what the judge in the Federal Court has said, which is getting our heads together and talking about it.”

He said the Federal Court order did not call for both sides to work together to fix the broken system. Filing an appeal and arranging for these negotiations allows for that, Miller added.

Cheryl Casimer, an executive member of the First Nations Summit in B.C., said she is confused by this stance, as the Federal Court order encouraged negotiations between the parties to end the discrimination.

According to the order from Federal Court Justice Paul Favel: “Negotiations, as part of the reconciliation process, should be encouraged whether or not the case involves constitutional issues or Aboriginal rights. When there is good will in the negotiation process, that good will must be encouraged and fostered before the passage of time makes an impact on those negotiations."

A 2018 non-compliance order from the Canadian Human Rights Tribunal also noted the federal government had convened a National Advisory Committee whose membership included the Assembly of First Nations and the First Nations Child & Family Caring Society.

“The stage has already been set, but they’re still choosing to move forward by filing an appeal,” Casimer said. “What they say seems to be contradictory to what the order says.”

The Tyee requested an interview with Cindy Blackstock, executive director of the First Nations Child & Family Caring Society but did not receive a response prior to publication.

Blackstock told CBC’s Power and Politics the government should pay out the $40,000 settlements and then, if it is not enough, figure out how to pay more.

“We’ve been to Federal Court seven times now, and at every turn the Federal Court has disagreed with the government,” she said, adding she wants to get into the negotiation room to see if the government’s offer is enough to end the discrimination.

“I want the discrimination to stop, number one, because every day there [are] more victims.”

The federal government hurt children through residential schools, Blackstock said, then through the process of adopting Indigenous children out known as the ’60s Scoop — which is still ongoing — and now through the systemic, decades-long underfunding of child welfare services.

“We as a country have a historical moment right now to make sure that this is the last generation of kids that’s hurt by the federal government,” she said, adding children have died because of the discrimination against them. “But we have to keep the pressure on.”

More than 50 per cent of the kids in government care in Canada are Indigenous — which includes First Nations, Métis and Inuit youth — despite making up less than 10 per cent of children overall.

In B.C., the number of children in care has dropped to its lowest in 30 years, with 5,163 kids currently in the system, and its lowest number of Indigenous kids in care in 21 years. Still, roughly 67 per cent of youth in care are Indigenous. Three-quarters of Indigenous kids in care are taken in for neglect — a word that child welfare researchers say is synonymous with poverty.

Chief Terry Teegee of the B.C. Assembly of First Nations says he is “confounded” by the government’s continued appeal of the compensation orders, which directly impacts First Nations children in the province who are in or have spent time in government care.

“They still haven’t received the compensation that was identified and agreed to by the colonial courts [that] said they were discriminated against,” he said. “Our children are being discriminated against as they appeal this case again.”

Both Teegee and Casimer urged Canadians to hold the federal government accountable by calling on their members of Parliament and the federal NDP to pressure the government to end its court appeals of the tribunal rulings.

At Friday’s press conference, Miller told the media he understands trust is thin between the parties. But he said the process his government has proposed is about “being able to look at your own children in the morning. This is about being able to look in the mirror.”

But Teegee noted trust in the federal government isn’t just thin: it’s barely there at all.

“We’re going onto a number of years here since the original court case came down and stated that our children have been discriminated upon,” he said. “I don’t know. We’ll see.”  [Tyee]

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