Prime Minister Justin Trudeau’s team waited until the very last minute on Friday, October 29 to announce they had filed an appeal to Federal Court Justice Paul Favel’s ruling of September 29. The ruling upheld a Human Rights Tribunal’s order that the government pay $40,000 to all victims of the underfunded First Nations child and family welfare system.
The government made this dubious announcement in such a way as to attract as little public and media scrutiny as possible.
Justin Trudeau’s father, Pierre Trudeau, did the same when he backtracked on crucial tax changes that had aroused the ire of the business community, and when he named his most senior political adviser to the Senate. He also chose dusky Friday evenings to make those controversial and embarrassing announcements.
Almost immediately following Trudeau’s appointment of his new cabinet, on October 26, this writer predicted the government would “do its darndest to bury the First Nations child and family services appeal by announcing it mere hours before the deadline.”
I hoped my cynical and pessimistic prediction might be wrong, but it was a vain hope.
Negotiations, with threat of appeal looming in background
The only surprise in the late Friday announcement was that the government will suspend its appeal process for a couple of months in order to work on a negotiated settlement with the complainants, the First Nations Child and Family Caring Society headed by Cindy Blackstock and the Assembly of First Nations.
Right until deadline time, the ministers responsible for this file — Justice Minister David Lametti, and newly named Indigenous Services and Crown-Indigenous Relations Ministers Patty Hajdu and Marc Miller — played their cards close to the chest.
Blackstock reports that on Tuesday, the day the new cabinet was sworn in, government officials reached out to her “with general questions.” Then, on Thursday, the day before the appeal deadline, officials asked her for more information — with, Blackstock says, “the idea of having discussions.”
But Blackstock had no idea the government planned the appeal until the day the government announced it.
Nonetheless, she welcomes the chance to negotiate and bring her 14-year fight for First Nations children to a conclusion.
Crown-Indigenous Relations Minister Marc Miller admits successive Canadian governments have done little to gain the trust of Cindy Blackstock and the others who joined in her long battle.
“I don’t blame them for not trusting us. I don’t blame them one bit,” Miller said on Friday evening.
Miller recognizes that the fact the government is appealing the Favel decision will only make building trust more difficult. But both Miller and Hajdu insist the negotiations they’ve now undertaken, however late in the game, represent an entirely new approach on the part of the government.
The two ministers spoke with at least the appearance of heartfelt sincerity at the Friday evening news conference.
“We’re here with open hearts, open hands; and we’re saying work with us to work on long-term reform,” Miller pleaded. “We’ve tried to do long-term reform or even reform on our own. It’s failed. [Now] we’re doing it with parties involved, and we’re prepared to move forward with a significant financial package to back that up … This is about being able to look at your own children in the morning. It’s about being able to look in the mirror.”
Blackstock and her partners at the Assembly of First Nations have accepted the government’s olive branch and are ready and eager to undertake good faith talks.
Still, we should not forget that the same government which is so full of chagrin and so fulsomely recognizes the injustices not only of the past but of the present did file a very real notice of appeal.
It is worth examining what that notice says to understand where the government really stands on this long-standing dispute. Indeed, the government’s game here is a bit like the old good-cop-bad-cop routine.
While the ministers wear their hearts on their sleeves, publicly, behind the scenes the government’s lawyers are showing they’re prepared to play hardball. They have a take-no-prisoners legal position.
Disputing definitions and challenging Tribunal’s jurisdiction
In their notice of appeal, federal government lawyers continue to take issue with key elements of the Human Rights Tribunal’s ruling. And they cannot hide their bitter disappointment with Justice Favel, who emphatically upheld the entire ruling.
The government lawyers’ notice enumerates a long laundry list of quibbles with the Tribunal’s orders.
They claim the Tribunal erred in ruling every child who experienced “denials, delays or service gaps” — in part, because of the government’s “wilful and reckless conduct” — deserves the maximum award for damages, $40,000.
Without saying as much, the government seems to suggest some children and their parents and caregivers deserve less compensation than others.
As well, the government lawyers say the Tribunal erred in “determining there is no end date for the compensation awarded in relation to removals.”
Further, the notice of appeal claims the Tribunal adopted “unreasonably broad definitions” of certain key terms, namely: “essential services,” “service delays,” and “unreasonable delays.”
The lawyers do not say what’s wrong with the Tribunal’s definitions, nor do they offer any of their own. Like much of their notice of appeal, their objection to certain words and phrases looks like something the lawyers concocted out of thin air — a spurious legal gambit they are throwing against the wall in the hope it might stick.
But the government lawyers’ most persistent and vexatious argument is that the Human Rights Tribunal overstepped its power.
In fact, federal government lawyers have long insisted the Human Rights Tribunal does not have jurisdiction to award compensation to an entire group which was victim of historic, systemic discriminatory treatment. They have argued repeatedly that it is impossible to accurately calculate a monetary value per victim for such systemic mistreatment.
No court has bought that argument yet, but the lawyers continue to pursue it because they are terrified this case could become a precedent.
Minister Miller indicated as much when he noted the Blackstock case has paved the way for other legal actions based on the inadequacy of child and family services for Indigenous people. He referred to other class-action lawsuits that are currently under way as a complicating factor in resolving the current impasse.
Miller told reporters on Friday evening that many of the child victims of the Indigenous system are now represented by “three or four sets of legal counsel.”
Government tight-lipped, Blackstock candid
And so, the good cops in government want a negotiated settlement in order to make all of its many legal hassles arising from Cindy Blackstock’s initiative go away.
Ministers Miller and Hajdu say they have put real money on the table, but will not say much more publicly about the government’s position.
Cindy Blackstock is more forthcoming.
“Regarding compensation, the Tribunal ordered Canada to pay each victim $40,000,” she says. “That order was upheld by the Federal Court. These funds belong to the victims and the Caring Society will not agree to any proposal to give victims anything less than what the Federal Court has said they are entitled to.”
For Blackstock, the failure to provide needed services to Indigenous communities is not an abstract, legalistic issue.
“The stress on families and the lack of services meant that First Nations children were going into foster care at greater rates than in residential schools,” she says. “As a result, First Nations kids did not get the other public services, such as education, health and social supports, they needed when they needed them. They would literally get less because they were First Nations.”
In the end, Blackstock and her allies will sit down with the government and sincerely hope for a settlement. But she is not intimidated by the government lawyers lurking in the bushes, with their armfuls of specious legal arguments.
Indeed, if the government proved to be intransigent and the negotiations were not successful, Blackstock would ask for an expedited appeal hearing. She would want to get another court to pronounce itself on the dispute as soon as possible.
“These service denials and delays were linked to the deaths of some children and harms to many others,” Blackstock points out. “These victims have waited long enough.”
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