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Federal court blocks Ottawa’s attempt to pause compensation order for First Nations children


Nov. 30, 2019

OTTAWA—A federal court judge has blocked the Liberal government’s attempt to pause the compensation process for thousands of First Nations children deemed to have suffered racial discrimination through underfunded social services.
But the judge will allow the government’s judicial challenge of that compensation order to move ahead — meaning the compensation process ordered by the Canadian Human Rights Tribunal will go ahead even as the Liberals seek to have it struck down in court.
The decision by Federal Court Justice Paul Favel was published Friday afternoon, after two days of hearings near Parliament Hill this week.
At issue is a Sept. 6 ruling by the rights tribunal that ordered the federal government to compensate First Nations children harmed by underfunded child welfare and health services on reserves and in the Yukon since 2006. The tribunal ordered the federal government to pay the maximum amount of $40,000 to affected children and their parents or grandparents — which a government lawyer estimated this week could cost up to $6 billion — and submit a plan for how to compensate the affected children and families by Dec. 10. That deadline was extended this week to Jan. 29.
A government lawyer argued in court this week that the compensation order is fundamentally flawed, in part because it excludes children affected by underfunded services before 2006. The Liberal government said it wants to compensate children who suffered harm, but that it prefers to do so by working with a class-action lawsuit that was proposed last March and includes children affected since 1991.
The Liberal government is therefore challenging the human rights tribunal’s Sept. 6 compensation order, and argued in Federal Court this week that Justice Favel should suspend the payout process while that challenge goes ahead.
Favel rejected that argument in his decision Friday, concluding he sees “no prejudice or harm” in the government starting the process to obey the tribunal order — even as it challenges that order in court — because there is no timeline to make payments.
“There is no risk that any compensation will not be recovered because there is no compensation to be paid out at this time,” Favel wrote.
At the same time, however, Favel rejected a motion from the First Nations Family and Caring Society to suspend the government’s judicial review of the compensation order — paving the way for the court challenge to continue.
In a statement Friday, federal Indigenous Services Minister Marc Miller said the government is holding fast to its “strong belief we must compensate First Nations children harmed by past government policies.
“We will continue to seek a solution that will provide comprehensive, fair and equitable compensation for First Nations children in care,” he said.
Cindy Blackstock is the executive director of the First Nations Child and Family Caring Society, which filed the initial human rights complaint with the Assembly of First Nations in 2007 that led to the tribunal’s compensation order this fall.
In an interview Friday, Blackstock welcomed Favel’s decision and called on the government to drop its court challenge of the compensation order, arguing it contradicts its 2019 legal directive to pursue mediation rather than adversarial court fights “with the goal of achieving reconciliation with Indigenous peoples.”
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“They’re acting in a way that’s the antithesis of that…They’re actively aggressing against the victims of their own discrimination,” Blackstock said.
“If (the government is) really serious about reconciliation, it needs to drop this judicial review.”
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