A second day of arguments unfolds before the Federal Court on Tuesday over the federal government’s efforts to quash a human rights tribunal order to compensate First Nations children impacted by the on-reserve child welfare system. 

At issue this week is a federal government motion to stay — or pause the order — until the court rules on a related application filed by Justice Canada lawyers for a judicial review aimed at quashing the tribunal’s order.  

The Canadian Human Rights Tribunal ordered the federal government in September to pay $40,000 in compensation to each First Nations child impacted by the on-reserve child welfare system since 2006. There was an additional order of $20,000 in compensation to each parent or grandparent (depending on which was the primary caregiver) whose children were taken from their homes unnecessarily.

The tribunal also ordered Ottawa to pay $40,000 to all First Nations children — along with their parents or grandparents — who were forced to leave their homes to access services, or who were denied services covered by the policy known as Jordan’s Principle between Dec. 12, 2007 and Nov. 2, 2017.

Under Jordan’s Principle, the needs of a First Nations child requiring a government service take precedence over jurisdictional issues over who should pay for it.

Ottawa eyes class-action settlement

As arguments began before the judge Monday over the tribunal order, Justice Minister David Lametti and Indigenous Services Minister Marc Miller announced the Trudeau government would work with plaintiffs’ counsel with the goal of moving forward with certification of a class-action lawsuit on child welfare filed in March.

The $6-billion lawsuit was filed on behalf of children impacted by the child welfare system and who were denied services that should have been covered by Jordan’s Principle. 

The Trudeau government indicated it was looking to deal with the issue of compensation through a class-action settlement — like it has for the Sixties Scoop and the Indian Day School cases.

“The class action model is designed to give individuals the chance to have their interests represented, to address the interests of all impacted individuals and to allow parties to arrive at an appropriate resolution of past harms,” said the statement from the ministers.

However, in the courtroom, federal lawyers aimed their legal guns on the tribunal order.

Justice Canada lawyer Robert Frater argued on Monday that the tribunal order overstepped its boundaries into the realm of class-action law. Frater also argued that the case dealt with systemic discrimination which required a systemic fix and that the money award was unfair because it did not take individual circumstances into consideration. 

“The errors of this [tribunal compensation] judgment run wide and deep,” said Frater in his arguments. 

“Canada is committed to remedying the injustices of the past, but it has to be done in a fair and equitable way.”

Tribunal’s deadline for compensation proposals approaching

Barb McIsaac, a lawyer for the First Nations Child and Family Caring Society, told the court that while the government says it favours compensation, its actions haven’t matched its words.

“My friend has stated over and over again, as have various politicians, that Canada wants to compensate the children, but it hasn’t done anything yet.”

The First Nations Child and Family Caring Society, which was the lead on the human rights complaint, argued that the court should put a freeze on the judicial review until the tribunal decides on the process to distribute the compensation. 

The tribunal set Dec. 10 as the deadline for all parties to submit proposals on the mechanism for distributing the compensation. 

“The court can only fully understand and rule on the reasonableness of the compensation once all aspects of the compensation decisions have been determined by the tribunal,” McIsaac said.

“The arguments of the attorney general are not in the best interest of the children, but rather in this argument that we have to have perfection. If we wait for perfection, we’ll be here again and again and again, and we’ll never have a solution.”

Tuesday is the last day of arguments before Favel makes a ruling on the federal government’s motion for a stay. 

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