With only two days until the court deadline, the Liberal cabinet still has not decided whether or not to appeal a decision that would see the government pay out billions of dollars in compensation to Indigenous families, according to Canada’s attorney general.
Last month the Federal Court upheld two decisions by the Canadian Human Rights Tribunal. The first found Ottawa didn’t properly fund child and family services, which resulted in it “wilfully and recklessly” discriminating against Indigenous children living on reserve.
The tribunal ordered the federal government to pay $40,000 each to about 50,000 First Nations children as well as their relatives.
The second legal battle stems from a separate ruling that expanded the scope of Jordan’s Principle, which is a rule stating when there is jurisdictional disagreement over what level of government should provide a service to First Nations children, Ottawa takes on the responsibility.
The government has committed to compensating the children and their families but officials say they have yet to decide whether to appeal the Federal Court decision.
“It’s a very complex case. We’ve been working very hard at analyzing all the possibilities,” said Justice Minister David Lametti after the Liberal’s first cabinet meeting since the election.
He said the government accepts the tribunal’s finding of systemic discrimination.
He cited issues of court jurisdiction and class actions as some of the complicating factors, but would not elaborate further.
“I can tell you that most lawyers would have difficulty understanding the complexities of it,” he said. “There are a number of different considerations. We’re trying to take them all into account and we’ll have a decision in the coming days.”
The government has until Friday to make a decision.
If the government chooses to pursue further court action, it will certainly be met with condemnation from Indigenous groups and opposition parties for undermining reconciliation efforts.
“It is time for Canada to put down its legal sword,” said Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada.
“The courts have already ruled, academics have studied and First Nations have presented solutions to end discriminatory public services for their children,” she wrote in a statement Wednesday to The Canadian Press.
“If the government appeals and continues to drag its feet fixing the discrimination, it will be writing another dark chapter for generations of First Nations children to follow. The country cannot let that happen.”
The NDP has repeatedly called on the government to cease any further appeals in the case.
“Justin Trudeau needs to stop the legal action against Indigenous kids, comply with the Canadian Human Rights Tribunal order, and work toward justice for Indigenous people,” Leader Jagmeet Singh said at a news conference Wednesday.
Singh said the Liberals need to let the Federal Court decision stand if they want to count on NDP support in the House of Commons to pass their legislative agenda.
“If they continue to fight kids in court, that would show to us they’re not interested in working together,” he said.
When asked who would ultimately make the final decision — cabinet, the attorney general or the prime minister himself — Crown-Indigenous Relations Minister Marc Miller would not say.
“The decision is the one of the government,” he said.
He added the decision will be made “one way or another” by Friday.
—Laura Osman, The Canadian Press