Cree judge appointed to tribunal compensation case for First Nations kids in care

Federal Justice Paul Favel from Poundmaker Cree Nation has been appointed to manage the parties involved in a compensation case that has pitted Canada against First Nations children over receiving thousands of dollars in compensation.

The appointment of Favel, by Chief Justice Paul Crampton of the Federal court, suspends a scheduled hearing on Oct. 23, two days after the federal election.

“I think it’s good, right? It’s just more representation at the bench and we just need more of these people to come forward and serve in that capacity,” said Cindy Blackstock, executive director of the First Nations Child and Family Caring Society (FNCFCS), the lead plaintiff in the discrimination case against Canada.

“So I think just given the nature of the case, that they put it right into case management with a judge which is good for us, good for the kids.”

The hearing was triggered after the federal government filed for a judicial review of a compensation order issued by the Canadian Human Rights Tribunal (CHRT) on Sept. 6.

In that ruling, the CHRT ordered Canada to pay compensation to First Nation children, youth and families who were taken from their homes on reserve and put in care of the state.

The CHRT ruled in 2016 that Canada discriminated against First Nations children who live on-reserve for failing to provide the same level of care that exists in the provincial child welfare system.

On Sept. 6., the tribunal awarded $40,000 to each child who was taken from their parents for reasons other than sexual, physical or psychological abuse.

“The Panel finds that it has sufficient evidence to find that Canada’s conduct was wilful and reckless resulting in what we have referred to as the worst-case scenario under our Act,” the ruling said.

“This case of racial discrimination is one of the worst possible cases warranting the maximum awards.”

Read More: 

‘Wilfully and recklessly’: Human rights tribunal awards compensation for First Nation children in care

The government is asking the federal court to kill the order and have the parties in the case, First Nation Child and Family Caring Society, the Assembly of First Nations, Amnesty International, and the Nishnawbe Aski Nation, and the Chiefs of Ontario pay Canada’s court costs.

According to Blackstock, none of the parties requested a case manager.

“All we know is that the court wants to control its own process. It doesn’t want the parties saying you’re going to have a hearing now and the rest of it,” she said. “They understand that this is a complicated case that needs to be handled properly. It’s gone up to the federal court of appeal and it’s really important that everything is followed to the T. That’s what I take the federal court to be doing right now.

“I think this is positive any way that we have someone who knows the lay of the land at least.”

Favel was appointed to the federal court by former justice minister Jody Wilson-Raybould on Dec. 11, 2017. Before that he was a partner at a law firm in Saskatoon and specialized in Aboriginal law with an “emphasis on corporate and commercial law related to First Nations economic development,” the federal court’s website says.

Favel also served as deputy chief commissioner with the Saskatchewan Human Rights Commission and was a member of the oversight committee established by the Indian Residential Schools Settlement Agreement. In addition, he was a sessional lecturer for a course on First Nations economic development at the University of Saskatchewan’s College of Law.


No change in legal documents despite comments from Justin Trudeau

If the Oct. 4 filing of a judicial review to have the tribunal’s order to compensate First Nations children, and their families caught up in the child welfare system didn’t come as surprise, Justin Trudeau’s comments during the Oct. 7 federal party  leaders’ debate certainly did.

When challenged about asking the court to quash the compensation order, the prime minister said that the First Nations children will get compensation.

“We recognize the tribunal’s ruling that says that children need to be compensated and we will be compensating them,” he said.

Trudeau wasn’t asked how this would happen, or why the government was asking for a judicial review by any of the leaders, or the debate moderator.

Trudeau didn’t offer any more information about his statement.

More than a week has passed since the debate and according to the Federal court registry, lawyers for Canada have not amended any of the court documents to reflect Trudeau’s comments.

“So we have the prime minister saying he’s for compensation, and then we have the legal submissions saying they want to quash all monetary compensation,” said Blackstock.

“They have consistently opposed compensation.”

APTN News contacted the prime minister’s campaign asking if there would be any changes to the judicial review.

Liberal spokesperson Eleanore Catenaro referred back to comments made by Trudeau on the day the judicial review was requested by the government.

“We agree with the Tribunal’s finding that there must be compensation for those who were harmed,” Trudeau said on Oct. 4. We need to have conversations with partners, we need to have conversations with communities and with leaders to make sure we’re getting that compensation right.

“Those are conversations that we cannot have during a writ period. Government can’t be having those discussions because we’re in a writ period,”

But according to Blackstock, and Chiefs of Ontario Grand Chief Joel Abram, it seems the government didn’t want to have the conversations before the writ period either.

“Canada says that it accepts there was discrimination against First Nations children and accepts that there should be compensation. But yet it also says this is not the appropriate forum to get that compensation,” said Abram, shortly after Canada’s challenge became public. Canada is saying we need to negotiate.

“We have been trying to negotiate about compensation for these children since 2016, and we never get responses.”

The election is Oct. 21.

Conservative party leader Andrew Scheer has said that he supports the call for a judicial review.

“This is a far-reaching decision that has major impacts on multiple levels of government,” Scheer told the media. “It would be appropriate to have a judicial review.”

The NDP and Green party said they would pay the compensation.

A case conference with Favel, Canada, the FNCFCS, AFN, Amnesty International and NAN is scheduled for Oct. 25.

A hearing is expected to happen in mid-November.

“We’ve been up to Federal court four times on this case, they know it well, and I think that they understand what’s at stake here for kids,” said Blackstock.

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