Ottawa must resolve First Nations child welfare case: Jody Wilson-Raybould

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The Liberal government needs to resolve the First Nations child welfare case playing out in Federal Court and “not put children through this,” former justice minister Jody Wilson-Raybould says.

Ms. Wilson Raybould, who was the first Indigenous justice minister in Canada, said she is “extremely disappointed” in the Trudeau government’s decision to seek a judicial review of findings by the Canadian Human Rights Tribunal, as well as a stay pending that review.

“We need to, as a country, recognize that Indigenous children have been treated very unfairly," said the independent MP, who was re-elected on Oct. 21 in her Vancouver riding.

"I would have hoped that it wouldn’t have come to this.”

In September, the tribunal said it found sufficient evidence that Canada’s conduct was willful and reckless, and ordered the federal government to provide compensation of up to $40,000 to First Nations children that were unnecessarily taken into care on or after Jan. 1, 2006.

It also said its findings applied to parents or grandparents and children denied essential services.

Satisfying the entire order from the tribunal could cost $5-billion to $6-billion if the compensation was paid out by 2020, assistant deputy minister of Indigenous services Sony Perron said in an affidavit this fall.

At a hearing on the request for a stay on Monday, Justice Department chief general counsel Robert Frater told Federal Court Justice Paul Favel that the tribunal’s decision is wrong in law.

Canada is committed to remedying injustice of the past, but the government wants to find a more inclusive compensation process, Mr. Frater told the court.

Justice Favel reserved making a decision on the stay request on Tuesday.

Outside the courtroom, Indigenous Services Minister Marc Miller and Justice Minister David Lametti announced Monday that the government plans to work with the plaintiffs’ counsel in a separate Indigenous child welfare lawsuit to have it certified as a class action.

Canada continues to “fully implement all other orders from the tribunal,” the ministers said in a statement, noting steps it has taken including the reform of funding approaches in First Nations child and family services.

Ms. Wilson-Raybould, who resigned from Prime Minister Justin Trudeau’s cabinet this year over the handling of the SNC-Lavalin affair and was later ousted from the Liberal fold, said Thursday that the government’s response to the tribunal decision does not help in building trust necessary for reconciliation.

In its September findings, the tribunal gave the parties in the case until Dec. 10 to discuss a plan to distribute compensation, but it agreed Wednesday to push this date back to Jan. 29 after the Attorney-General’s Office requested an extension.

The tribunal said it was disappointed the office did not request an extension of the December date in September or October, adding it felt “cornered."

The government needs to get away from having courts or tribunals take leadership roles in the case, Ms. Wilson-Raybould said, adding there is a reason she issued a directive as attorney-general on civil litigation involving Indigenous peoples.

“Litigation is by its nature an adversarial process, and it cannot be the primary forum for achieving reconciliation and the renewal of the Crown-Indigenous relationship,” the directive said. “This is why a core theme of this directive is to advance an approach to litigation that promotes resolution and settlement.”

There has always been an option to settle the First Nations child welfare case, Ms. Wilson-Raybould added, saying the parties could have sat down and reached an agreement by now.

“There’s been ample time to do it and to recognize that we are talking about kids."