TEHRAN - Canadian Prime Minister Justin Trudeau’s government has filed a last minute appeal against a federal court decision which upheld a ruling that it must provide billions of dollars in compensation to indigenous children who suffered from discrimination by the country’s welfare system.
It has emerged that just before a court deadline, the government filed papers indicating it planned to fight a ruling by a human rights tribunal ordering the government to handout the funds and compensate indigenous children as well as their caregivers.
If the negotiations don’t end in a resolution after two months, the appeal process will press ahead very swiftly. The governments’ move to battle the tribunal’s ruling and while pausing the legal procedures was swiftly condemned by prominent Indigenous voices.
Mi’kmaw lawyer and chair in Indigenous governance at Ryerson University, Pam Palmater, has been left astonished by the Federal government’s position saying “Feds had years to sit and negotiate. Courts have told them to negotiate. Instead feds refused to abide by tribunal orders. Discrimination and harm continued to our kids. Now, before feds agree to negotiate, they wait till Friday 4.30pm and get their appeal in first. Wow.”
The legal battle for compensation stretches back to 14 years ago, when the executive director of the First Nations Child Family Caring Society, Cindy Blackstock, together with the Assembly of First Nations, argued that by underfunding child welfare for indigenous children, Ottawa’s conduct amounted to racial discrimination. Blackstock says that she is waiting to see “words put into action”.
“What we're not prepared to do is negotiate them out of their legal liability.”She told local media “the government has the money to be able to remedy these injustices and we have the solutions so they just need to implement, they just need to do that”.
Referring to the victims, Blackstock says “while they’re waiting, they’re still being hurt… that's what is really the heartbreak for me is that when we started this case in 2007, with the Assembly of First Nations, I was convinced that the government would finally take it seriously and they would do the right thing.
“Had the government implemented the solutions back then in 2007, they wouldn't owe any compensation because there would have been no victims.”
The Assembly of First Nations Chief Rose Anne Archibald has also issued a statement saying “while we are disappointed that Canada continues to pursue an appeal, we are encouraged that a deadline will be set to negotiate a settlement of this matter”. She also said “Our priority remains to ensure that our children and families are supported to thrive”, before adding “First Nations children and families have waited far too long for justice and healing. In order to walk the healing path together, Canada must acknowledge the harms that discrimination has had on our children and families. Our collective goal is to ensure that discrimination ends and never happens again. Our children are precious and our families matter.”
The government is claiming the appeal will be put on hold as it wants to negotiate with First Nations indigenous groups to determine how compensation should be paid out with those who made the initial complaints. The move is also a sign that Prime Minister Justin Trudeau's government, which has long pledged its commitment to indigenous people, feels its chances of success are far better outside the courtroom.
Analysts argue by avoiding the legal route, the federal government is also avoiding full responsibility; something that would have been registered on record in the history books for the discrimination indigenous children had to endure. On the other hand, it comes against a backdrop of several key legal victories for indigenous peoples in Canada on human rights, treaty rights and fiduciary duty.
Some experts say the number of successful results away from the courts, is encouraging the federal government to talk rather than take on legal battles they end up losing.
In a statement, Indigenous Services Minister Patty Hajdu said the talks will focus on compensating indigenous children, long-term reform of the indigenous child welfare system and funding to support delivery of child and family services. Speaking to reporters later, she claimed that the government approach will build "a better system, an equitable system, a compassionate system where no more harm is done."
Some 55,000 children are affected by the compensation decision and that is estimated to cost the government billions of dollars. Government ministers refused to discuss how much money the government had put on the table to obtain the agreement to hold two months of talks.
Blackstock says they will not agree to anything that is under the C$40,000 per child compensation the Human Rights Tribunal had mandated.
She slammed the government saying "what we are interested in is stopping the discrimination to create more victims. What we're not prepared to do is negotiate them out of their legal liability."
There have been some key victories for Canada’s indigenous population at the judiciary. They include a Supreme Court order to recalculate payment for century-old actions, basing compensation not on the bare minimum a government might have done in a case involving Lac Seul First Nation but what Lac Seul First Nation lost in the process.
In another case, a court certified a class action on behalf of indigenous people alleging police brutality in Canada's northern territories - the first certified class action alleging systemic discrimination by a police force in Canada, said James Sayce, a lawyer representing the plaintiffs. The federal government is fighting the certification.
In British Columbia, Blueberry River First Nation won a victory that was unique in its focus on the diminishment of treaty rights and the cumulative effects of industrial development, said lawyer Paul Seaman, leader of Gowling WLG's Indigenous Law Group.
"This is a moment of reckoning," Bruce McIvor, a partner at First Peoples Law in Vancouver, said earlier this year of recent indigenous cases in Canada. Governments have pledged reconciliation, he said. Now Canadians expect them to "live up to the rhetoric."
Back in 2019, the Canadian human rights tribunal declared the federal government had “willfully and recklessly” discriminated against First Nations children living on reserve by underfunding child and family services.
The tribunal had ordered Ottawa to pay C$40,000, the maximum the tribunal can award, to each child as well as their parents and grandparents, but the federal government appealed the ruling.
That appeal was dismissed by a federal court judge who found that the government had failed to provide any evidence the tribunal’s decision was unreasonable.
Indigenous leaders have long criticized the prime minister’s decision to fight both of these rulings, however they had recently expressed some hope the Liberal government would end the multi-year battle.
In its submission, the government claims it “acknowledges the finding of systemic discrimination and does not oppose the general principle that compensation to First Nations individuals who experienced pain and suffering” – but to the disappointment of the First Nations it claimed the way compensation was being determined was problematic. In its statement on Friday, the government claimed it had hopes to reach a settlement by December.
It’s not the first case of discrimination against Canada’s indigenous population. From the 1800s up to the 1990s, more than 150,000 children went through the system of 139 institutions across Canada, run by catholic churches and funded by the federal government. But the Catholic church has never offered a formal apology, nor has the pope.
Children from Indigenous families were forced to attend boarding schools to assimilate them into white Canadian society.
The system would become notorious for neglect and abuse of children and was deemed by Canada's Truth and Reconciliation Commission to have amounted to cultural genocide.
The discovery this year of nearly 1,300 unmarked graves at the sites of the former residential school system has triggered fresh calls for a reckoning over the legacy of the institutions. The discoveries have shocked both Canadians and the international community.
Earlier this month, Canada marked its first-ever National Day for Truth and Reconciliation, commemorating the victims and survivors of the Indigenous residential school system. The event was snubbed by the country’s Prime Minister who chose to go on a family holiday instead; a decision that was widely criticized.
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