The issue of compensation for indigenous groups is back in the limelight after the Trudeau government announced that it would appeal the recent Canadian Human Rights Tribunal ruling (2019 CHRT 39). This marks the 8th non-compliance order regarding compensation for First Nations children and their families over failures and discrimination in the child welfare system. 

In the language of the ruling, Ottawa, “willfully and recklessly,” discriminated against Indigenous children living on reserves by not properly funding or providing equal child and family services. 

More specifically, the CHRT panel found that the federal government, “drastically underfunds” maltreatment intervention services aimed at indigenous children, including least disruptive measures like allowing children to remain in their communities while receiving care (as would normally be the case for other children in similar situations). A study published by The First Nations Child and Family Caring Society of Canada (one of the complainants) back in 2004 provides some examples of least disruptive measures that, at the time, could be found in provincial/territorial child and family services legislation. These include family counselling, guidance and assessment, in-home support, parent aides, parenting programs, services for improving the family’s financial situation or housing, drug or alcohol treatment and rehabilitation, and the mediation of disputes.

The CHRT ruling, delivered on Sept. 6, 2019, orders the federal government to pay up to $40,000 per child affected by the lack of sufficient services. The calculated amount was arrived at by considering the maximum amount available under the Canadian Human Rights Acts ($20,000) which is multiplied by the number of complainants (in this case, two), totalling a sum of $40,000. 

The court ordered Canada to pay $20,000 to each First Nation child unnecessarily removed from their home. This applies to all children removed between January 1st, 2006, and until the earliest of the following options occur: the parties agree on a long-term solution, the Panel finds that the unnecessary and discriminatory removal of children has ceased, or the Panel no longer has jurisdiction over the matter. 

Each child removed for enduring sexual, physical or psychological abuse in their home also receives $20,000. The fact that First Nations children had to be taken away from their families and communities to receive care, while non-indigenous children in similar circumstances are kept in their familiar environment, represents, “a good example of violation of substantive equality”.

The Assembly of First Nations estimates that the total sum of compensation for the 54,000 children involved would be $2.1 billion, not accounting for compensation due to parents and grandparents.

Sony Perron, the Associate Deputy Minister of Indigenous Services Canada (ISC), said in an affidavit filed in Federal Court on Oct. 3, 2019, that Ottawa could be facing  $5 to $6 billion in disbursements if it pays the compensation by 2020, adding that the bill could rise upwards to $8 billion if the time pay-out period is extended until 2025-26. His point, he said, is “not to identify costs with precision”. These estimates are based on the current Bank of Canada interest rate, which would increase the final payout if it were to rise in the future, Perron said.

Ottawa was ordered to reform the First Nations Child and Family Services program back in 2016. In ruling “2016 CHRT 2,” the program not only was found to have, “adversely impacted and, in some cases, denied adequate child welfare services,” to First Nations, but also, “creates incentives to remove children from their homes and communities.”

In response to the CHRT’s most recent findings, the Minister of Indigenous Services Seamus O'Regan said in a statement that while the government agrees with the court’s findings, there needs to be a “conversation” about this issue, as opposed to “litigation.” 

“In order to give us both clarity and time to have these conversations with our partners, which are not possible during an election, we are seeking a judicial review and stay,” the statement from his official Twitter account read.

It’s worth noting that in the Attorney General’s application for judicial review of “2019 CHRT 39,” the government has asked for “an order setting aside the Tribunal’s decision and dismissing the claim for monetary compensation.” 

The leader of the Conservative Party, Andrew Scheer, has said that he would also seek a judicial review if he became Prime Minister, while the NDP and Green Party leaders have both condemned the Liberals’ decision and promised that they would comply with the compensation order.