Sixties Scoop rally and march at Allen Gardens, Toronto, Fall of 2011. Image: Crystal Luxmore/Flickr

The federal government is still on the hook to compensate tens of thousands of First Nations children and their families to the tune $40,000 each, after it failed to provide them with the same level of service and care other Canadian children and families receive.

That is the amount a Canadian Human Rights Commission Tribunal awarded as part of a series of decisions in 2019 and 2020.

On Wednesday, September 29, Federal Court Justice Paul Favel rejected the Trudeau government’s appeal of those decisions.

A process that lasted more than a decade

The Canadian Human Rights Commission started hearing about the neglect suffered by First Nations communities and their children in 2007. 

A good part of that neglect, the Tribunal determined, resulted from jurisdictional wrangling between the federal and various provincial governments. In some cases, the Tribunal noted, children died because nobody was willing to take responsibility for them.

The First Nations Child and Family Caring Society, headed by the indefatigable and ever-patient Cindy Blackstock, brought the original case to the Human Rights Commission. Blackstock was subsequently joined by other Indigenous groups, including the Assembly of First Nations and Amnesty International.

The Human Rights Commission Tribunal took its time. It heard scores of witnesses and examined hundreds of documents.

The federal government did not make the Tribunal’s task easy.

In his judgement, Justice Favel recounted how part way through the process, “there was a three-month delay when the Caring Society discovered that the Applicant [the Government] had knowingly failed to disclose 100,000 documents.” Many of these documents were later held to be “prejudicial to Canada’s case and highly relevant.”

Justice Favel quotes the Tribunal’s description of the government’s obstructionism. It demonstrated, said the Tribunal, a “lack of transparency and blatant disregard” for the process.

In the end, the Tribunal ruled decisively in favour of the First Nations and human rights groups. It not only awarded money to the putative victims, many of whom are now adults, it ordered the federal government to assume its full share of responsibility for First Nations child and family welfare.

Prime Minister Justin Trudeau has long claimed that reconciliation with First Nations is his government’s highest priority. Justice Favel notes that in its presentation to his court, the government admitted the First Nations child and family welfare system was deeply flawed.

The government recognized, Favel said, First Nations were victims of discriminatory treatment, exacerbated by a long legacy of colonialism.

Nonetheless, when the Trudeau government received the Tribunal’s rulings in 2019 and 2020 it did not act immediately to redress what it agreed were decades of neglect. Instead, it mandated its platoons of lawyers to look for flaws in the Tribunal’s decisions, hoping to find a way to get the government off the hook for what looked to be a costly settlement with First Nations.

The government’s legal team sifted through the Tribunal’s rulings and found what they deemed to be many technical legal issues, which justified an appeal.

Government lawyers cited the example of class action lawsuits, in which a large group of people seek damages as a result of, say, a faulty product. It is possible in such cases, the lawyers argued, to assign a monetary amount to which each victim is entitled. 

On the other hand, the lawyers said, the First Nations child and family welfare case was a different kettle of fish.

The suffering of First Nations arising from the government’s failure to provide necessary services to families and children could not be quantified in the same way as class action damages, the lawyers claimed. It might be a case of systemic discrimination, but there was no reasonable way to determine a monetary amount as compensation to the victims as there would be with a class action lawsuit.

In his ruling, Justice Favel flatly rejects government lawyers’ arguments based on class actions — and every other nitpicking legal argument they presented.

This is what he said about the class action argument:

“Canada compares the award to the type of damages that one may obtain in a court proceeding. However, awards for pain and suffering under…the Canadian Human Rights Act are compensation for the loss of one’s right to be free from discrimination, from the experience of victimization, and the harm to their dignity. A victim is not required to prove [monetary] loss.”

Government flagrantly disregarded obligations under Jordan’s Principle

Justice Favel’s judgement refers to Jordan’s Principle, named after Jordan River Anderson, who was from Norway House Cree Nation in Manitoba, and died at the age of five in 2005:

“Jordan had complex medical needs. His parents surrendered him to provincial care so that he could receive the necessary treatment. Jordan could have gone to a specialized foster home but Canada and Manitoba disagreed over who should pay the foster care costs. Jordan died…having never lived outside the hospital.”

In 2007, the House of Commons unanimously passed the Jordan’s Principle resolution, in memory of Jordan.

In the government’s own words, the resolution was “a commitment that First Nations children would get the products, services and supports they need, when they need them.” Payments would be worked out later.

“Jordan’s Principle is a child-first principle,” Favel notes.

“[It] provides that where a government service is available to all other children and a jurisdictional dispute arises between Canada and a province/territory, or between departments in the same government regarding services to a First Nations child, the government department of first contact pays for the service and can seek reimbursement from the other government/department after the child has received the service.”

Jordan’s Principle, Favel explains, “is meant to prevent First Nations children from being denied essential public services or experiencing delays in receiving them.”

The federal court judge then goes on to describe how the government, in practice, failed to live up to Jordan’s Principle. He cites the case of the Wapekeka First Nation in northern Ontario:

“In July 2016, Wapekeka made a proposal to Health Canada seeking funding for an in-community mental health team. In the proposal, Wapekeka alerted Health Canada to concerns about a suicide pact amongst a group of young girls. In January 2017, two twelve-year-old children tragically took their own lives.”

According to the testimony before the Human Rights tribunal of Dr. Michael Kirlew, a community and family doctor for Wakepeka, Health Canada told him it delayed responding to the Wapekeka proposal because it came at an “awkward time” in the federal funding cycle.

In other words, Jordan’s Principle that children come first, that the government should do what is necessary and worry about the money later, took a back seat to petty, bureaucratic imperatives.

Government lawyers likely to recommend appeal

The government can appeal Justice Favel’s decision to a higher court. From inside the bureaucracy there will be much pressure to do so.

Former justice minister Jody Wilson-Raybould faced that kind of push-back when she tried to instill a new culture in her department with regard to First Nations’ litigation. Rather than fighting Indigenous peoples’ all the way, Wilson-Raybould wanted government lawyers to negotiate and seek mutually satisfactory settlements.

The point is not to use the immense power of the federal government to win every dispute with poorly resourced First Nations, the former minister said. The goal should be justice, not victory at all costs.

Wilson-Raybould’s pleas fell on deaf ears. Most government lawyers regard themselves as staunch and uncompromising defenders of their client’s narrowly defined self-interest. As a rule, they will spare nothing to win every single case on behalf of the government of Canada.

The federal judge in the child welfare case, Justice Favel, happens to be an Indigenous person from the Poundmaker Cree Nation. Inside government, some will no doubt whisper sotto voce that the Justice’s identity explains his decision which, they will say, is overly generous to First Nations and “unfair” to the government.

They will almost certainly urge the Trudeau government to seek what they call “fairness” in another venue.

If this case ever gets to the Supreme Court, the government will not have worry about dealing with any Indigenous judges. There are none on that court, and there are no prospects of any in the foreseeable future.

Trudeau made a point of appointing an Indigenous person to the powerless position of Governor General. But when he had a chance to fill the vacancy on the Supreme Court created by Justice Rosalie Abella’s retirement not too long ago, he chose a different option.

The government will now wait a while before announcing its decision on an appeal of Justice Favel’s ruling.

There’s a good chance it will choose to make the announcement late on a Friday evening, when few are paying attention — and long after the first National Day for Truth and Reconciliation.

Karl Nerenberg has been a journalist and filmmaker for more than 25 years. He is rabble’s politics reporter.

Image: Crystal Luxmore/Flickr

Karl Nerenberg

Karl Nerenberg joined rabble in 2011 to cover news for the rest of us from Parliament Hill. Karl has been a journalist and filmmaker for over 25 years, including eight years as the producer of the CBC...