A federal court in Canada has paved they way for billions in compensation to First Nations children who suffered discrimination in the welfare system, after a judge dismissed a pair of legal challenges by the government.
Two years ago, the Canadian Human Rights Tribunal ruled that the federal government had “wilfully and recklessly” discriminated against Indigenous children living on reserves by failing to properly fund child and family services.
The tribunal ruled the federal government was required to pay compensation worth C$40,000 to each child removed from his or her home – the maximum allowable under the country’s human rights act.
But instead of paying out the compensation, the prime minister Justin Trudeau said his government would appeal the ruling to “make sure we’re getting compensation right”.
On Wednesday, however, a federal judge wrote that the tribunal’s compensation ruling was not unreasonable.
“No one can seriously doubt that First Nations people are among the most disadvantaged and marginalized members of Canadian society,” justice Paul Favel wrote in his decision. “The tribunal was aware of this and reasonably attempted to remedy the discrimination while being attentive to the very different positions of the parties.”
The court also weighed in on a separate battle over “Jordan’s principle”, which states First Nations children shouldn’t be deprived of care while governments fight over responsibility of cost. The principle was named after Jordan River Anderson, a five-year-old child who died of a medical condition while governments fought over who should pay for his care.
Favel concluded that in both cases, the government failed to establish that either of the tribunal’s decisions were unreasonable.
The battle for compensation dates back 14 years, when Cindy Blackstock, executive director of the First Nations Child and Family Caring Society and the Assembly of First Nations argued that by underfunding child welfare on reserve, Ottawa’s actions amounted to racial discrimination.
Indigenous leaders have long criticized prime minister Justin Trudeau’s decision to fight both of these rulings. Critics have said the refusal to provide compensation to children is not in line with a government committed to reconciliation.
In June, New Democratic party leader Jagmeet Singh brought forward a motion asking the federal government to abandon its legal challenges. The motion passed unanimously in the House of Commons.
In September’s election debate, Singh again attacked Trudeau for his government’s refusal to compensate children.
“You can’t take a knee one day if you’re going to take Indigenous kids to court the next. That’s not leadership,” he said – a reference to Trudeau kneeling during an anti-racism protest last year.
Wednesday’s landmark ruling was celebrated by Indigenous leaders – and by lawmakers who have long called for the government to compensate the affected children.
“Today was an absolute victory for First Nation children. For six years Justin Trudeau spent millions fighting the rights of Indigenous children and trying to overturn a ruling that found his government guilty of ‘wilful and reckless’ discrimination against vulnerable Indigenous kids. The court has thrown his case out,” lawmaker Charlie Angus of the NDP said in a statement.
The First Nations Caring Society called the decision a “huge win” for Indigenous children and families.
“Today’s decision acknowledges the personal harm caused by Canada’s discrimination and affirms that First Nations deserve justice,” tweeted the Assembly of First Nations. “We hope that Canadians stand with us in recognizing that #EveryChildMatters.”
