Ottawa to appeal Federal Court ruling on Indigenous child welfare

The federal government is appealing a Federal Court ruling that upheld a landmark Canadian Human Rights Tribunal ruling on Indigenous child welfare compensation.

The decision prolongs a 14-year legal battle that leaves Ottawa on the hook for billions of dollars.

In a notice of appeal filed on Friday afternoon, Ottawa requested an order to set aside both the Federal Court decision and the orders issued by the tribunal.

The federal government's argument is that the court erred by finding that the tribunal "acted reasonably" in its decision to order monetary compensation for children and families who were placed in the child welfare system.

"Canada acknowledges the finding of systemic discrimination and does not oppose the general principle that compensation to First Nations individuals who experienced pain and suffering as a result of government misconduct should be provided," the notice of appeal reads.

"Awarding compensation to individuals in the manner ordered by the Tribunal, however, was inconsistent with the nature of the complaint, the evidence, past jurisprudence and the Canadian Human Rights Act."

In 2016, the tribunal found the federal government discriminated against First Nations children by underfunding the on-reserve child welfare system.

It said Canada paid little attention to the consequences of removing First Nations children from their homes, resulting in "trauma and harm to the highest degree causing pain and suffering."

In 2019, the tribunal ordered Ottawa to pay $40,000 — the maximum allowed under the Canadian Human Rights Act — to each child in the on-reserve child welfare system from at least Jan. 1, 2006, to a date to be determined by the tribunal.

It said the parents and grandparents of those children (depending on who was the primary guardian at the time) would also be eligible for compensation, as long as children weren't taken away because of abuse.

The tribunal also directed the federal government to pay $40,000 to each First Nations child, along with their primary guardian, who was denied services or forced to leave home to access services covered by the policy known as Jordan's Principle.

That policy states that the needs of a First Nations child requiring a government service take precedence over jurisdictional disputes over who should pay for it.

The Jordan's Principle portion of the order covers the period from Dec. 12, 2007 — when the House of Commons adopted Jordan's Principle — to Nov. 2, 2017, when the tribunal ordered Canada to change its definition of Jordan's Principle and review previously denied requests.

The order also states compensation must be paid to the estates of deceased individuals who would have been eligible for compensation.