M’CHIGEENG – The Anishinabek Nation Grand Council Chief Glen Hare said recent updates in the court battle over First Nations child welfare compensation has led him to question why courts exist if the decisions made within them are not followed.
“Why have courts if this is the case?” stated Grand Council Chief Hare, in regards to the federal government being in court this week in hopes of overturning the First Nations child welfare compensation order. The government is also in talks to settle the proposed class action lawsuit on First Nations child welfare.
“Why is the government spending millions of dollars when courts have already ruled in our favour? They should be honouring the rulings that have been made,” Grand Council Chief Hare told the Recorder. “Instead of following the rulings in court they are going to waste millions appealing the decision. (Prime Minister Justin) Trudeau wants good relations with First Nations, but when they do things like this they are going backward.”
This week Canadian government lawyers are set to argue against compensating First Nations children impacted by the on-reserve child welfare system. As reported previously, in September the Canadian Human Rights Tribunal ordered Ottawa to pay $40,000 to each First Nations child affected by the on-reserve child welfare system since 2006. The compensation order followed a 2016 tribunal decision that found the federal government discriminated against First Nations children by underfunding the on-reserve child welfare system.
Ottawa said the tribunal order could cost up to $8 billion and filed for a judicial review this past October, calling for the federal court to overturn the decision, leading to hearings that began Monday on related legal maneuvers.
Ottawa will argue before the federal court that it should stay—or pause—the tribunal order until the judicial review application gets decided.
“The important thing is as a country we need to be unified, come together, on a whole lot of issues,” said Grand Council Chief Hare. “The courts have ruled on this case, but the government says, ‘if you don’t agree with us, it isn’t going to happen’.”
Grand Council Chief Hare pointed out the compensation order would not include all First Nations persons in Canada. “A lot of people may think that $40,000 would go to every First Nations person, but it wouldn’t. It would only go to those affected by the child welfare system since 2006. I’m not one of the candidates for this funding. But many more of our people have gone through hell waiting.”
The government has argued in court filings that the tribunal order was an overreach and that the original case was about systemic discrimination, which required a systemic fix, not individual compensation, which is the purview of class action law.
The federal court will also hear arguments from the First Nations Child and Family Caring Society and the Assembly of First Nations against the stay, so that Ottawa will be forced to discuss how a compensation model could work.
The tribunal has ordered all sides in the case—Ottawa, the First Nations Child and Family Caring Society and the Assembly of First Nations—to negotiate a method for dealing with the mechanics of the compensation and present it by December 10. Thus far, however, the government has not participated in discussions, and has decided to litigate, while the other parties have already begun the work of developing potential models, according to court records.
The tribunal additionally ordered that the parents or grandparents (depending on who was the primary guardian) whose children were taken unnecessarily from their care would be eligible for at least $20,000.
The ruling also ordered $40,000 in compensation for First Nations children, along with their parent or grandparent, who had to leave their homes or failed to get services that should have been covered by Jordan’s Principle between December 12, 2007 and November 2, 2017.
The hearings were scheduled to be held this week at the Supreme Court of Canada in Ottawa.