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The Federal Government Picked a Fight With First Nations Kids. Three Years and Millions in Legal Fees Later, They Lost.

'Canada’s conduct was willful and reckless', Human Rights Tribunal sasy as it awards First Nations kids maximum compensation

September 6, 2019

The federal government lost its three-year long battle before Canada’s Human Rights Tribunal to avoid compensating Indigenous families and youth for discrimination in Canada’s child welfare system.

In a ruling, released Friday morning, the tribunal ordered the federal government to compensate — to the maximum extent within human rights legislation — those harmed by unequal funding and discriminatory  practices within the system.

The fee is to go towards compensating Indigenous families and youth harmed by the discrimination in Canada’s child welfare system or who were denied services owing to the discriminatory implementation of Jordan’s Principle.

Jordan’s principle, among other things, obligates the government to provide substantively equal access to housing, health and other services to Indigenous children and to safeguard the interests of children.

In its ruling, the tribunal found “Canada’s conduct was willful and reckless resulting in what we have referred to as a worst-case scenario under our Act.”

The federal government’s legal battle has a lengthy history.

Soon after Trudeau’s Liberals formed government, the Tribunal issued a ruling that the federal government’s chronic under-funding of First Nations children on reserves was discriminatory, with 38% less being spent on kids on reserve compared to children in other communities across Canada.

The tribunal said funding for First Nations children needs to be equalized in comparison to kids elsewhere in Canada.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society which initially filed the human rights complaint, estimated compensation to First Nations kids could amount to nearly $1.7 billion.

While the federal government could have fixed the funding imbalance, it instead launched a costly legal battle racked up millions of dollars in lawyer’s fees.

Blackstock says the federal government’s full legal costs between 2016 and 2019 are not known because the government hasn’t released that information.

“It was at least 12 million as of 2016,” Blackstock told PressProgress, referring to the 9-year-long legal battle with Harper government over her initial complaint between 2007 and 2016.

In 2017, the Liberal government decided to fight the Human Rights Tribunal’s ruling, arguing it can’t force the government to give equal funding to Indigenous kids.

In December 2017, former Justice Minister Jody Wilson-Raybould disclosed that the Liberal government spent over $800,000 in lawyer’s fees between 2016-2017 fighting the Human Rights Tribunal’s 2016 ruling to implement Jordan’s Principle.

That amount is likely larger today.

Today’s ruling noted:

“Many federal government representatives of different levels were aware of the adverse impacts that the Federal FNCFS Program had on First Nations children and families and some of those admissions form part of the evidence and were referred to in the Panel’s findings.”



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