Federal Court denies Ottawa's attempt to pause First Nations child welfare compensation order

The Federal Court of Canada has denied the federal government's motion to pause a human rights tribunal ruling ordering compensation for First Nations children apprehended through the on-reserve child welfare system. 

Justice Paul Favel said in his ruling that the federal government could not prove it would suffer "irreparable harm" from the Canadian Human Rights Tribunal compensation ruling because no money was currently at stake. 

Favel said the tribunal order asked the parties to submit proposals on the mechanism for distributing compensation along with the criteria for selecting who qualifies.

"I see no prejudice or harm to Canada in engaging in discussions with the parties on process and to report back to the CHRT," said Favel's ruling.

"There are no imminent compensation payments to be made by Canada."

The federal government also filed a related application for a judicial review aimed at quashing the human rights tribunal compensation order. The application will be heard at a later date.

The federal government has so far refused to engage in any discussions over the tribunal compensation order with the First Nations Child and Family Caring Society and the Assembly of First Nations — which filed the original human rights complaint in 2007.

'This will not be a wasted exercise'

The human rights tribunal order instructed the parties to submit proposals on the compensation distribution mechanism by Dec. 10. The tribunal this week pushed back the deadline to Jan. 29, 2020, a fact noted in Favel's ruling.

Favel also denied a motion from the First Nations Child and Family Caring Society to put a freeze on the federal government's application for a related judicial review aimed at quashing the compensation order from the human rights tribunal. 

"Having a judicial review proceeding in the future will provide an incentive for the parties to use the time before the CHRT to expedite good faith discussions with one another and possibly reach a framework to bring before the CHRT for approval," wrote Favel.

"This will not be a wasted exercise."

Indigenous Services Minister Marc Miller's office issued a statement saying that it was looking forward to "constructive conversations with partners on how to better compensate all affected children."

The statement said the government has a "strong belief that we must compensation First Nations children harmed by past government policies."

Cindy Blackstock, who heads the Caring Society, said the ruling was a "good day for kids" because it means that the parties can get down to work on sorting out the process for compensation.

"Canada can continue to fight against the victims of its discrimination and pursue its judicial review to quash the compensation order or put down its sword and fully adhere to the tribunal's order," said Blackstock, in an emailed statement.

Blackstock said the Caring Society would file its submissions on a proposed compensation process to the tribunal by Dec. 10 — the original deadline.

The human rights tribunal ordered Ottawa to pay $40,000 to each First Nations child apprehended through the on-reserve child welfare system and in Yukon going back to 2006. The compensation order followed a 2016 ruling from the tribunal which found Ottawa discriminated against First Nations children by underfunding on-reserve child welfare services.

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 Dec. 12, 2007, and Nov. 2, 2017.

The federal government said in court filings that the compensation order could cost up to $8 billion. 

The federal government also announced this week it was looking to settle the compensation matter through a proposed $6 billion related class action lawsuit that was filed in March.