Feds launch protective appeal, seek resolution in First Nations child welfare discrimination case

Law360 Canada (November 1, 2021, 12:33 PM EDT) -- Ottawa has filed an appeal of a landmark human rights award to tens of thousands of on-reserve First Nations children and families who were denied equal child welfare and health services, but the litigation is being put on hold to allow for more time to come to a resolution in the case.

In September, the Federal Court upheld a Canadian Human Rights Tribunal (CHRT) decision ordering the federal government to pay $40,000 to each First Nations child on reserve who had been compelled since 2006 to leave home due to what was classified as discriminatory underfunding of child welfare services. The award also ordered payment of $40,000 to each child’s parents or caregiving grandparents. Some estimates have said the award could affect 50,000 children and cost several billion dollars (Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada 2021 FC 969).

And in a statement issued Oct. 29, Minister of Justice David Lametti, alongside Indigenous Services Minister Patty Hajdu and Crown-Indigenous Relations Minister Marc Miller, said the federal government had reached an agreement to pause the litigation on the tribunal decision. They said that “providing the space to reach agreement on compensation and funding for future reforms will help us reach the best outcome.”

“This means that while Canada filed what is known as a protective appeal of the Federal Court decision of Sept. 29, 2021, the appeal will be on hold and the focus will be squarely on reaching an agreement outside of court and at the table,” the statement said.

The ministers said they plan on reaching a “global resolution” by December on the issues related to the litigation, which are providing fair, equitable compensation to First Nations children on-reserve and in the Yukon who were removed from their homes by child and family services agencies, achieving long-term reform of the First Nations child and family service program and funding for the purchase and/or construction of capital assets that support the delivery of child and family services on-reserve.

“As we work to ensure that those who have been harmed are fairly compensated, we are also committing to significant investments to address long-term reform of the First Nations Child and Family Services and will work with the parties to put in place an approach that best serves these children,” the statement said. “We will also continue this work through the ongoing implementation of An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, which affirms and recognizes their jurisdiction over child and family services.”

The ministers said as “part of our collective responsibility to end discrimination against Indigenous peoples, we must redress past harms.”

“We have been unequivocal from the start: we will compensate those harmed by child and family services polices in order to mend past wrongs and lay the foundation for a more equitable and stronger future for First Nations children, their families and communities,” the statement said.

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