The federal government is preparing to argue against two decisions of the Canadian Human Rights Tribunal. The first awarded billions of dollars in compensation to First Nations children inappropriately taken from their parents after 2006, as well as their parents and grandparents.
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The second decision extends Jordan’s Principle to children who live off reserve or who are not registered under the Indian Act.
Jordan’s Principle is a rule that when different levels of government disagree on the responsibility of providing services to First Nations children, they must help a child in need first and discuss bills later. . It was named in honor of Jordan River Anderson, a boy from Norway House Cree Nation in Manitoba who died in hospital as the Manitoba and federal governments fought for five years over who should pay for his care in a special home.
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Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, which filed the original human rights complaint over 14 years ago, says the case is fundamentally about redressing the harm suffered by children. Indigenous children who have experienced systemic discrimination by Canadian child protection policies and practices.
“Frankly, it turns me off as a citizen to think that the government is spending taxpayer money and energy to tackle little children who have been found to be racially discriminated against in a way that harms them, separates them from their families and in some cases contributes to their death, ”said Blackstock.
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But even as Ottawa continues its legal battle to challenge the tribunal’s rulings – despite repeated and growing calls to end the litigation – Liberal ministers and Prime Minister Justin Trudeau continue to insist they are in. for compensating aboriginal children who have been injured by what they call a “broken child care system”.
Instead, Ottawa wants to compensate these children and their families through a settlement in two separate but related class actions.
Indigenous Services Minister Marc Miller said such a settlement would pay out more than the court’s maximum $ 40,000 for each child and would be able to provide more commensurate compensation for harms than they suffered.
“We are not denying that damage has been suffered. We’re not denying that systemic discrimination exists, ”Miller told reporters last week.
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“But it’s very difficult to look at the CHRT tribunal, which can only award a maximum amount of $ 40,000. And he did it, we said, in a way that wasn’t proportional, in a vacuum. And this is the subject that will be discussed primarily in court proceedings next week.
There has been a “practical narrative” that the government is dragging First Nations children to court and refusing to pay, Miller says. But he argues that’s just not the case.
“We have been in full compliance with the orders as they came out,” Miller said.
“We have fundamental problems with the CHRT decision, with its assertion of jurisdiction, without disparaging some of the great work that has been done. “
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The September 2019 court ruling said Ottawa had “willfully and recklessly” discriminated against Indigenous children living on reserves by failing to properly fund child and family services. As a result, children were removed from their homes, families and reserves because if they lived off reserve they would be covered by better funded provincial systems. Others were taken from their families because the authorities could not provide support to help them stay together.
In submissions to the Federal Court, Ottawa argues that the human rights tribunal “erred in law” in “improperly” turning the case into a class action lawsuit by awarding individual compensation. Since there were no individual or representative plaintiffs, but rather the Caring Society advocating on behalf of all First Nations children in inappropriate care, federal lawyers argue that the court did not have the right to do so. power to award individual damages.
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“The court does not have the right to turn a complaint of discriminatory systemic underfunding into a complaint for individual compensation,” the government’s brief said.
“To do so is incompatible both with the power of the tribunal to hear the complaint and with its power to remedy it. “
Ottawa is not claiming that systemic underfunding affects children, the brief says, arguing that it is more about whether the tribunal, rather than the Federal Court, was the appropriate forum to award compensation to children and children. families.
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In its arguments against expanding Jordan’s Principle, the federal government argues that the court ruling “transformed” Jordan’s Principle from a resolution passed in the House of Commons to ensure that jurisdictional disputes did not arise. no impact on the health of First Nations children, in a rule of providing services to a much larger group.
Blackstock and the Caring Society legal briefs accuse Canada of a “colonialist” attempt to control the identity of Indigenous peoples by using the “racist” Indian Act to define status.
“The Indian Act is the same law that forced children to attend residential schools and it is still relevant today,” Blackstock said in an interview.
“No other child in this country has to undergo a government litmus test to determine their racial identity and then be issued a card or not. “
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A large group of Indigenous organizations, First Nations and human rights groups have joined the Caring Society and the Human Rights Tribunal in challenging Ottawa’s attempt to overturn the ruling. court.
Ottawa is also asking the Federal Court to send the decisions back to a differently constituted panel for reassessment due to what it believes to be a “lack of procedural fairness” from the 2019 panel that made the award of damages. .