The Assembly of First Nations and First Nations Child and Family Caring Society seized the chance to punch holes in Canada’s arguments — calling them callous, heartless, paternalistic and colonial — on day two of Ottawa’s bid to quash a Canadian Human Rights Tribunal ruling that orders compensation for victims of systemic discrimination.
Federal politicians have insisted a class action is the better way to compensate because it differentiates between and is proportional to varying levels of pain and suffering.
But critics have accused Canada of shopping around the legal system — playing the tribunal off against the class action in an attempt to save money — a point Caring Society counsel Sarah Clarke made on Tuesday.
“The only party who would benefit from this process, this divide and conquer approach, would be the perpetrator of the discrimination: the federal government,” Clarke told Federal Court Justice Paul Favel.
“To say that a process that involves a class action protects a victim’s rights is highly suspect, and it’s likely disingenuous of Canada to argue that a class action is better for victims.”
On Monday, Justice Canada chief general counsel Robert Frater argued the tribunal, by ordering individual compensation in a case about systemic discrimination, imposed a billion-dollar class-action settlement on Canada without a lead plaintiff, testimony from any victims or sufficient evidence of harm.
He said it was a “deeply problematic” jurisdictional over-reach that is not permitted by federal human rights legislation.
AFN and the Caring Society are advocacy organizations, added Frater, while a class action protects the rights and interests of the victims and gives them more control over the process.
“There was no evidence to support this massive compensation order,” Frater contended. “To compensate someone, especially if you’re going to give the maximum, there has to be real harm.”
The tribunal concluded in 2016 Canada racially discriminates against First Nations kids on reserves and in the Yukon by knowingly underfunding the child welfare system and refusing to fund essential social services.
In 2019, the tribunal handed down the ruling under review. Its quasi-judicial panel concluded Canada’s ongoing discrimination was “wilful and reckless” and “devoid of caution,” factoring into pain, suffering and some child deaths.
It awarded the statutory maximum of $40,000 to thousands of kids and family members.
“Canada focused on financial considerations rather than on the best interests of First Nations children and respecting their human rights,” the order said.
Clarke suggested Canada’s position was absurd and not to be trusted in light of these findings.
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“Canada has never put the rights of the victims at the forefront of any of its decisions. As we discussed yesterday, the parties have had to return to the tribunal time and time and time again to force the government to comply,” she said.
“This paternalistic and colonial view that it knows what’s best for First Nations children has echoes of past injustices, and so, at this point, we say Canada should not be trusted.”
AFN counsel David Nahwegahbow recited the same passage from the 2019 order for the court and then proceeded to rip into Canada’s arguments and conduct, calling them callous and heartless.
“Since 2008, Canada has engaged on a campaign of obstruction, delay, deflection and non-compliance in the legal proceedings alongside ongoing and knowing discriminatory conduct in its operations and utterly inconsistent political messaging to the Canadian and First Nations public,” he said.
“It is frankly heartless for Canada to be challenging the tribunal’s decisions, particularly the compensation decision, on the basis there was insufficient evidence to establish harms resulting from the removal of First Nations children from their families, homes and communities.”
Nahwegahbow argued removing kids from their homes — no matter for how long — causes indisputable harm. He said residential schools caused “undeniable harm” before laying out how the residential school and First Nations child welfare systems are similar.
He suggested the government’s discriminatory funding formula for child welfare was similar to the per capita, by-the-head system used in residential schools.
Child welfare funding was linked to apprehension numbers. The government paid unlimited cash to keep kids in the child welfare system but only provided a fixed envelope for prevention.
This created what legal filings call a “perverse” monetary incentive to apprehend kids and keep them in care; if the agencies had no kids in custody, their revenue stream would dry up.
Residential school funding was tied to the number of kids forced to attend, meaning the institutions received more money the more pupils they apprehended.
“By focusing on bringing children into care, the CFS program and corresponding funding formulas, and other related provincial/territorial agreements, perpetuate the damage done by residential schools,” Nahwegahbow said.
The class action was also filed in 2019 by Xavier Moushoom and joined soon by Jeremy Meawasige. The Assembly of First Nations filed a similar suit of its own in 2020, and the two cases have since combined.
AFN lawyer Stuart Wuttke said Canada appeared to be “wilfully blind” by arguing the class action is better.
“This may be Canada’s preferred approach to address discriminatory conduct, however it is not the only avenue,” he said. “I can understand why Canada would appreciate or prefer a class-action process, but that’s not what we have here.”
He joined the Caring Society in saying AFN believes the compensation order was reasonable and ought to stand. In the alternative, he said it should go back to the same panel — not a different one as Canada requests.
The Chiefs of Ontario submitted brief arguments through its lawyer Maggie Wente on Tuesday afternoon.
She said the organization “agrees wholeheartedly” with the Caring Society and AFN.
Other First Nations and human rights organizations are scheduled to speak Wednesday.
Canada is scheduled to explain why Favel should quash a separate tribunal order expanding Jordan’s Principle eligibility to certain non-status kids on Thursday and Friday.