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Tuesday, September 28, 2021

Did Trudeau’s government take Indigenous kids to court?

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EDMONTON — Liberal Leader Justin Trudeau’s record on Indigenous reconciliation was called into question Thursday during the English-language leaders’ debate when NDP Leader Jagmeet Singh cited the controversial legal challenge of two rulings involving First Nations children taken from their families by a chronically underfunded child-care system.

Trudeau immediately denied the allegation of “taking Indigenous children to court,” saying his government has committed to compensating children who were harmed by what his government has called a broken child-care system.

THE CLAIM

During the portion of the debate discussing Indigenous reconciliation, Singh attacked Trudeau’s record when it comes to keeping his commitments to Indigenous Peoples.

“You can’t take a knee one day, if you’re going to take Indigenous kids to court the next, that’s not leadership,” Singh said, referencing Trudeau kneeling during an anti-racism protest in June 2020.

“Mr. Singh, you love that line about taking Indigenous kids to court,” Trudeau responded.

After Singh interjected saying, “It’s not a line,” Trudeau continued, saying, “It’s actually not true, we have committed to compensating those kids.”

ANALYSIS

Ottawa’s controversial legal challenge of a pair of rulings involving First Nations children dates back to 2007, when the First Nations Child and Family Caring Society and the Assembly of First Nations filed a complaint under the Canadian Human Rights Act alleging that child welfare services provided to Indigenous children and families were underfunded, flawed and discriminatory.

The groups also claimed the government had failed to implement Jordan’s Principle – a rule that when different levels of government disagree about who’s responsible for providing services to First Nations children, they must help a child in need first and argue over the cost later.

In 2016, the Canadian Human Rights Tribunal ruled in favour of Indigenous families, despite multiple attempts by the government to have the case thrown out, and called for the redesign of the child welfare system and its funding model.

And, in 2019, the government was ordered to provide compensation of up to $40,000 to each Indigenous child who was taken away from their families after 2006, as well as some of their parents and grandparents.

The Liberal government has filed for judicial review of both decisions, arguing the human rights tribunal “erred in law” by “improperly” turning the case into a class action by awarding individual compensation, despite repeated calls from the opposition parties to end the litigation.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, which filed the original human rights complaint over 14 years ago, says rectifying the Indigenous child-care system was a top call to action from the Truth and Reconciliation Commission. Watching the debate in real time Thursday, she says she was “gobsmacked” by Trudeau’s statement.

“These calls to action were the survivors’ priorities for the country, and one of the first things they wanted to see is their grandchildren not suffering like they were, not being taken out of their families unnecessarily like they were,” Blackstock told CTVNews.ca on Friday.

“And for the federal government to falsely claim that they are not litigating against First Nations kids… I’m just so gobsmacked by this.”

Blackstock called Trudeau’s debate remark a “self-inflicted injury,” noting his statement stands at odds with what is on the public record – something The First Nations Caring Society maintains a detailed timeline of on its website.

“[His government] has every right to litigate against First Nations children, and they’ve chosen to do so,” she said.

“What they don’t have a right to do is lie about it.”

Trudeau and his cabinet ministers have insisted they are in favour of compensating children and their families through a settlement in two separate but related class-action lawsuits, claiming such a settlement would pay out larger sums than the tribunal’s maximum $40,000 award for each child. One of those lawsuits was filed in February 2020 by the Assembly of First Nations.

In a statement to CTV News, the Liberal campaign said: “The question is not whether we compensate. It is a question of compensating in a way that is fair, equitable, and inclusive of those directly affected.”

But Blackstock says that Trudeau’s rebuttal that he is committed to compensation doesn’t paint a full picture.

“They have two judicial reviews… the first is that they don’t want to provide Jordan’s Principle to First Nations kids who are recognized by their nations but don’t have Indian Act status… Then there was the second matter regarding compensation,” she said.

“Canada is appealing that decision, and in their application, they seek to quash all financial compensation. There’s none of this ‘we want to pay more’ in that order.”

The government’s factum on the case, filed in March, states:

“The issue in the first application is whether the Tribunal had jurisdiction, rather than this Court, to provide class action-like compensation to impacted individuals…. The Tribunal ordered the funding system be fixed, and Canada agreed. However, the issue here is whether the children should receive compensation in a Tribunal proceeding that focused on systemic discrimination, rather than in a class action in this Court where the rules better protect the interests of victims.” 

CONCLUSION

While Trudeau and his Liberal government have pushed back on the narrative that they are “taking Indigenous kids to court,” public records show litigation has continued.

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