It’s rare and difficult for a Canadian citizen to be able to successfully sue the government for negative consequences befalling him or her, or befalling society in general, as the result of the ordinary operation of government laws.
As the Supreme Court of Canada recently stated, “core policy decisions” by governments, as embodied in its laws, will not give rise to civil liability to citizens inevitably affected by them, because the legislative and executive branches have “core institutional roles and competencies that must be protected from interference by the judiciary’s private law oversight.” There is and must be government policy immunity in relation to such core policy decisions, institutional roles and competencies.
In its 2021 City of Nelson v. Marchi decision the Supreme Court explained why governments must be immune from liability for the consequences arising in society from the application of its core policies:
…there is no doubt that governments may sometime be held liable for damage caused by their negligence in the same way as private defendants. At the same time, the law of negligence must account for the unique role of public authorities in governing society in the public interest. Public bodies set priorities and balance competing interests with finite resources. They make difficult public policy choices that impact people differently and sometimes cause harm to private parties. This is an inevitable aspect of the business of governing. Accountability for that harm is found in the ballot box, not the courts. Courts are not institutionally designed to review polycentric government decisions, and public bodies must be shielded to some extent from the chilling effect of the threat of private lawsuits. Accordingly, courts have recognized that a sphere of government decision-making should remain free from judicial supervision based on the standard of care in negligence. Defining the scope of this immunity has challenged courts for decades.
The Court in Marchi stated that the types of core government policies that should be shielded from private lawsuit liability are “decisions as to a course or principle of action that are based on public policy considerations, such as economic, social and political factors, provided they are neither irrational nor in bad faith.”
Marchi sets out four factors to help frame the analysis for whether a government decision is one of core policy:
- The level and responsibilities of the decision-maker. The higher the level of the decision-maker, the more it will be that the decision is core policy. Actual legislation, passed by elected officials, is the highest, but not the only, form of core policy.
- The process by which the decision is made. Where there is debate and deliberation beforehand, and the policy is intended to be prospective and have broad application, like most government laws, it will likely be a core policy matter.
- The nature and extent of budgetary considerations. Decisions regarding budgetary allotments for government departments or agencies will be classified as core policy decisions because they are more likely to fall with the “core competencies of the legislative and executive branches”.
- The extent to which the decision was based on objective criteria. The more a government decision weighs competing interests and requires making value judgments, the more likely separation of powers will be engaged because the court would be substituting its own value judgment.
For instance, in the 2014 case, Tanudjaja v. Canada (Attorney General) , (leave to appeal to the Supreme Court of Canada refused), the applicants, concerned citizens, brought an application alleging that the provincial and federal governments had breached ss. 7 and 15 of the Canadian Charter of Rights and Freedoms by making decisions and implementing changes to programs which eroded access to affordable housing. The Ontario Court of Appeal ruled that this was not a question that could be resolved by application of law, but rather it engaged the accountability of the legislatures. “Issues of broad economic policy and priorities are unsuited to judicial review”, the Court said, and accordingly, are not “justiciable.”
It is noteworthy, given what follows below, that in Tanudjaja the government of Canada, under Prime Minister Stephen Harper, (along with the government of Ontario), vigorously asserted this timeless, necessary and proper defence of government core policy immunity, the fundamental idea underlying this defence being that, in this imperfect world, there can be no legally enforceable duty of care owed by government to private citizens, enforceable by private lawsuit, to create a perfect world, or a perfect anything, for its citizens.
But not so, according to the Trudeau federal government, with respect to Canadian citizens who are Aboriginals.
It is an obvious and unarguable fact that the government of Canada’s 150-year relationship with Aboriginal peoples has been, outside of constitutional matters, a manifestation of non-justiciable, core government policies.
The Indian Act, the provision of free medical and dental care, massive government grants for reserve operations and infrastructure, funding for reserve schools, grants for travel to public schools and for post-secondary education, business and housing grants, loans and loan guarantees, employment initiatives, funding for the various Aboriginal lobbying associations and federations, the establishment and operation of residential schools, Aboriginal child welfare policies, programs relating to safe drinking water on reserves: these are only a few of the many mainly ameliorative core government policies and programs affecting Aboriginal Canadians voluntarily enacted and/or provided by the federal government, after the deliberate weighing of competing interests and the making of value judgments by its elected officials.
None of these policies and programs are mandated by any treaty. Not being Aboriginal rights protected by section 35 of the Constitution Act, 1982, they are not constitutional in nature. They are all the result of the ongoing, ever-changing exercise of the highest level, discretionary, government core policy decision-making over the many years of Confederation. As such, as stated in Marchi and Tanudjaja, they are not justiciable. As the Supreme Court in Marchi said, in accordance with the principle of government core policy immunity, the remedy for people unhappy with these policies and programs, or who feel personally harmed in some way by them, is to be found only in the ballot box, not in the courts.
But the federal government, under Prime Minister Justin Trudeau, eschewing centuries of soundly based precedent in this regard, rooted in the ancient tenet that “the King can do no wrong”, has created, in relation to Aboriginal, private, non-constitutional litigation claims against Canada, a foolhardy, harmful exception to the government core policy immunity principle.
It is now a core federal government policy that the government core policy immunity principle no longer applies to Aboriginal private lawsuits claiming money damages against Canada for imperfect consequences experienced by Aboriginals as the result of the ordinary operation of core government policies. The fundamental idea underlying this radical departure from the long-established, soundly based government core policy immunity principle is that, in this imperfect world, government does have a duty, but one owed only to Aboriginal Canadians, to create a perfect world, or at least to act to a standard of perfection in relation to the carrying out of any core government policy relating to Aboriginals.
Another of the basic laws (amongst many more) that the Trudeau federal government is ignoring when “defending” (see below) Aboriginal private lawsuits claiming money damages from the Canadian taxpayer is The Crown Liability and Proceedings Act, which states that a legal cause of action, in order to be enforceable, must be commenced within either two years or six years (depending on the nature of the claim), from the time the events giving rise to the cause of action occurred. This “statute of limitation” does not expunge rights but deals with when rights might be enforced. Statutes of limitations apply to all personal remedies claimed, which includes claims for money, whether in contract or tort or on any other basis. There is no legal exception to limitations statutes for any type of Aboriginal money damages claim, nor does section 35 of the Constitution Act, 1982 provide an exception for such Aboriginal legal claims.
All of the residential schools-related claims discussed below, and aspects of the others, were instituted decades after the events giving rise to them occurred. Yet in not one of these claims did the federal government defend itself, the public purse or the Canadian taxpayer on the basis that the claims were unenforceable on the grounds that they were filed well beyond the expiration of the statutory limitation period.
The first of the Aboriginal litigation claims that ignored the government core policy immunity principle and the limitation period defense were the first claims in relation to Indian residential schools, which resulted in the 2006 Indian Residential Schools Settlement Agreement. This agreement was negotiated by the Paul Martin Liberal government and finalized and carried out by the Harper Conservative government. Tom Flanagan, Professor Emeritus of Political Science at the University of Calgary, in his 2018 article, The Costs of the Canadian Government’s Reconciliation Framework for First Nations, fixed the cost to Canadian taxpayers for this settlement at approximately $6 billion.
After the apology for these necessary and mainly positive residential schools was read out by Stephen Harper in the House of Commons in 2008, which apology was accepted as satisfactory by Aboriginal leaders of the day, Canadians naturally thought that this matter was finally resolved- that a form of closure and “reconciliation” had been achieved- that they were set free from further such claims- and that all Canadians could move on into the future together.
Perhaps Canada’s decision to waive the government policy immunity principle and its numerous other legal defenses in this one instance was understandable. It was likely understood at the time to be a “one-off” situation arising out of special circumstances.
Not so. Instead of bringing closure and reconciliation, as Canadians hoped, it has only created an insatiable appetite for more such legally baseless claims, more such compensation, and more racial division amongst the citizenry.
As soon as the Trudeau Liberal government was elected in 2015 it began setting the table for the satisfaction of that appetite, and Aboriginal litigation claimants and their lawyers have been dining heartily and freely at this federal table since.
Leading the way for the Prime Minister in this regard was his new headwaitress at this table, Minister of Justice and Attorney General Jody Wilson-Raybould, who declared early in her term that with respect to all Aboriginal claims against Canada, “laws need to be changed and policies need to be re-written.”[i]
One new, radical policy change that she and the Prime Minister Trudeau made, was to almost immediately adopt a “throw in the towel and surrender”, white flag policy with respect to almost all Aboriginal civil litigation claims against the federal government. This policy, although it was consistently implemented on a de facto basis from the very beginning of the Trudeau government tenure, was finally formalized in writing and made public on January 11, 2019, under the title, The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples. (“the Directive”) A more realistic title for it would have been, as this writer characterized and describes it: The Trudeau Government’s Crown Sovereignty Surrender Directive.
The Directive, entirely without legal justification, states that “Indigenous peoples” are“partners” in Confederation with the federal government- that Canada’s approximately 635 relatively tiny, totally dependent Indian bands, and other unnamed, nebulous- also completely dependent– Aboriginal groups, associations and interests, are, legally, “distinct orders of government”- distinct “nations” or “governments”- and are thus virtual constitutional co-equals with the federal government, the territories and the provinces.
In this regard the Directive constitutes a radical State-weakening and fragmenting, de facto, purported transfer of constitutional power and authority from the federal government to “Indigenous peoples”, based on an unprecedented, historically and legally baseless re-interpretation of our Constitution, effected solely by federal Ministerial decree, with no provincial, parliamentary or public input.
More directly to the present subject matter, the Directive also heralds the federal government’s policy shift to “the recognition and implementation of Indigenous rights as the basis for relations with Indigenous peoples,”with the goal of supposedly advancing “reconciliation”,“respecting and advancing Indigenous self-determination and self-governance” and “fostering strong, healthy, and sustainable Indigenous nations.”
The Directive declares that if a First Nation band or any other Indigenous group or organization advances a legal claim against Canada then Canada’s approach to the litigation must be to “promote resolution and settlement” and to “seek opportunities to narrow or avoid” the litigation by “pursuing dialogue, co-operation, partnership and negotiation based on recognition of rights”, because, as the Directive asserts, Indigenous peoples are “full partners in Confederation, with their rights, treaties and agreements recognized and implemented.”
And, when Canada is sued by an Aboriginal group, is the goal of Crown lawyers to win the case for His Majesty, and thereby defend His revenue and treasury and His sovereignty, laws, rights and privileges?
No, because the Directive states that “litigation cannot be the primary forum for achieving reconciliation”, and, if litigation is unavoidable, the new litigation goal is not to stand up for the King’s traditional Crown interests: His sovereignty, treasury, revenue and powers, and His Canadian taxpayer subjects. Rather it is merely tolimply “assist the Court constructively, expeditiously and effectively so that it may provide direction on the matters in issue.”
For all of Canada’s history up until the election of Justin Trudeau, as recently evidenced by the Tanudjaja case, the federal government zealously defended the government core policy immunity principle, jealously protected the public purse, jealously protected its own sovereignty and powers, and vigorously defended the Crown’s traditional interests generally, including by, wherever appropriate, invoking the Crown Liability and Proceedings Act.
With respect to Aboriginal private lawsuit claims, this is no longer the case.
As the Directive states: “Transitioning out of this practice is part of the work of forming new nation to nation, government to government, and Crown-Indigenous relations…recognition of rights speaks to the need for the Government of Canada to prioritize resolution and settlement through collaboration and co-operation.” (Italics added.)
In other words, don’t fight Aboriginal lawsuit claims, regardless of their lack of legal merit. In response to an Aboriginal lawsuit against Canada, don’t defend the Crown’s traditional interests any longer. Raise the white flag at the earliest opportunity. Abandon the government core policy immunity principle and all other long-established laws and legal assumptions, precedents and practices. Let the unelected civil servants and conflicted or ideologically driven Cabinet Ministers decide the outcome of these claims behind closed doors, on politically expedient grounds alone, and then, by administrative fiat, through obedient, (but no doubt privately chafing), government career lawyers, just hand over essentially free taxpayers’ monies to the legally undeserving Aboriginal lawsuit claimants and their lawyers.
The record bears out how this harmful and unprincipled policy has been followed to the present day.
As reported by Professor Flanagan in his Costs article, (linked to above):
“Shortly after winning the 2015 federal election, the new Liberal government agreed to discontinue legal actions regarding residential schools in the province of Newfoundland & Labrador. Because of their history (Newfoundland was not part of Canada until 1949), these had not been included in the 2006 Residential Schools Settlement. Now the government negotiated a settlement for Newfoundland & Labrador on principles similar to those of the 2006 agreement. The result is a $50 million fund for individuals who attended five residential schools between 1949 and 1980, plus some collective expenses for healing and commemoration.”
In 2017, as the result of a highly flawed Superior Court decision, Brown v. Canada (Attorney General), the aforesaid highly-conflicted Attorney General of Canada, Jody Wilson-Raybould, (her former job was Assembly of First Nations B.C. Regional Chief, making her the proverbial fox in the henhouse of Canadian government sovereignty), following her white flag principles in this regard, instead of appealing it, as would have happened in the past, unjustifiably settled the case, which has consistently been mindlessly and improperly called the “Sixties Scoop” case.
In Brown the Court had declared that there was “a common law duty of care to take reasonable steps to prevent on-reserve Indian children in Ontario who had been placed in care of non-aboriginal foster or adoptive parents, (they numbered about 16,000),from losing their aboriginal identity”, and that Canada had breached that duty of care, resulting in a loss of each of these children’s “Indian culture and identity”, further resulting in “psychological problems associated with a loss of culture, self-esteem and identity.”
The Brown decision was based on a summary judgment motion, which is usually only brought by litigants and accepted by the court as a method of resolving cases when there are “no material facts in dispute”, which was not the case here. In a summary judgement hearing, there is no “live” trial with witnesses called to testify in the witness box and be cross-examined. In Brown there was only untested affidavit evidence. Little or no evidence was presented of the existence of a distinct aboriginal culture in 1960’s Ontario, when these children were taken out of their dysfunctional and dangerous homes for their own protection. There was no evidence of actual, compensable harm suffered by anyone. The existence of a distinct Aboriginal culture was wrongly presumed as a fact.
The irresponsible Trudeau federal government, following the Directive, immediately stated that it would not appeal this legally baseless decision. This is shocking, because the legal idea that the federal government, in this child welfare situation, owed a duty of care in negligence to each of these 16,000 now-adult Aboriginals arising out the ordinary operation of core government policies and laws, in this case Ontario’s child welfare laws, was and is so offensive to the government core policy immunity principle, the common law of negligence, and to numerous other laws and legal precedents.
Then, in October of 2017, the Trudeau government, still waving its white flag, entered into a settlement with the plaintiffs involving the payment to them or on their behalf of almost 900 million taxpayers’ dollars. Professor Flanagan wrote of this as follows:
“The settlement will set aside $750 million to be distributed among Inuit and First Nations people who were adopted out of their communities between 1951 and 1991 and as a result did not grow up with an Indigenous culture. It also provides $75 million for legal fees and $50 million for collective commemoration and healing activities.”
Surely there was and is a real issue as to whether, in 1960s Ontario, there was any distinct “Indian culture and identity” still in existence that was capable of being “lost”, and surely that issue, involving so many contentious issues of fact, law and legal precedent, deserved a hard-fought, live trial followed by a lengthy judicial decision.
Surely, in our modern world characterized by constant multi-cultural contact and exchanges, resulting in constant change and more change, there is a strong and compelling argument that the “loss of cultural identity”-an abstract, fluid, malleable, totally subjective and unmeasurable concept if there every was one, and which we all experience- is not compensable at law.
Surely there is a strong and compelling argument that the law of negligence and private duty of care should not be radically extended to the government in this type of nebulous and legally unprecedented situation, and in complete violation of the government core policy immunity principle and of established negligence principles.
Surely there was a significant damages issue with respect to each and every one of the 16,000 claimants, where the story of each of them would be unique.
It’s trite law that even though you may suffer a compensable breach of a duty of care towards you, if you don’t suffer a loss, then you have no damages, and thus no legal case worth pursuing. And in the case where you end up better off because of the breach of the duty of care, you may have a technical, abstract legal injury, but you have no damages, so again, you have no reason to sue. Here, it may be that the lives of most of the allegedly “legally injured” Aboriginal claimants, objectively viewed, were at least as “good”, in their adoptive homes, as they would have been had they been left by social welfare authorities in what those authorities reasonably and in good faith considered to be dangerous and dysfunctional homes. No doubt, in many cases, the lives of the children taken out of these homes, because they were deemed “in need of protection”, (the child welfare test of the day), turned out better because they were raised in a safe, caring and responsible environment.
Consider in this latter regard what Aboriginal author Tanya Talaga wrote about this in her 2018 book All Our Relations- Finding the Path Forward:[ii]
The (child welfare) workers compared how children were being raised in First Nations homes to their own Euro-Canadian ways and values. So if they entered homes where the food was all wild game, berries, and vegetables, where they saw the poverty, addictions and other social ills of reserves, they assumed the kids were in danger and took them away– often without informing anyone in the community.
(Italics added. As well, it’s impossible that child welfare workers would have taken any child into care without that child’s family having full knowledge of it.)
Consider what retired Manitoba Provincial Court Judge Brian Giesbrecht wrote in the linked-to article about the pervasive problem of child neglect and alcohol abuse on First Nations reserves, and what Aboriginal lawyer and author Harold Johnson wrote[iii] about “the poverty and the violence and the hopelessness” characteristic of modern, remote First Nations reserves, representing the reality of so-called modern “Indian culture and identity”. He further described these reserves as:
…impoverished areas…pockets of hopelessness, with their shabby housing, unemployment, addictions, underfunded primary schools, scarcity of healthy food and scarcity of natural space and where predators from neighbouring communities come to buy drugs and sex. When hope has been siphoned away, all that remains is daily existence.
Canadians will never know how the higher courts would have dealt with the profound legal and social issues referred to above, because the Trudeau government, in a slap in the face to the taxpayers of Canada and to all those well-intentioned child welfare workers and all those good people who adopted these children, simply deemed them all to have been legally harmed and entitled to compensation for that harm.
The Brown settlement sent a clear message to high powered class action lawyers in urban Canada that the Canadian government, in the face of Aboriginal grievance-based, private law class actions, was going to be easy pickings. They saw that they would never have to face a real fight. They would never have to go to trial and prove their case. They could be assured of a summary judgment procedure. Long-standing laws like the government core policy immunity principle, the Crown Liability and Proceedings Act, and negligence legal principles focussing on the existence of a duty of care, causation and damages, which would normally prohibit such claims, were not going to be an impediment. All the years of arduous work, stress, huge financial risk and uncertainty involved in having to prove their case in court would be avoided. There was no risk of losing and having to pay costs. The payday was virtually guaranteed. All they had to do was issue and serve a credible-looking statement of claim, go through the motions of building a case for trial, and hang in there generally, while all the while waiting for the Directive-mandated white flag to inevitably be raised, and a positive outcome, ($75 million for the lawyers in Brown), was assured.
In the shamefully settled lawsuits described below, all the same, deliberate, white flag federal government litigation failures were on display: supine passivity generally, neglect of winning defences, agreeing to procedural shortcuts like the summary judgment procedure, sacrificing the Crown’s traditional interests, deeming all Aboriginal claimants to have been harmed and never bettered, avoidance of issues of causation, neglecting to examine individual cases, avoiding ascribing responsibility to the parents of the children involved, avoiding ascribing responsibility to First Nations band councils, neglecting to claim over against the provinces, eschewing all legal precedents and principles, and most fundamentally again, suspending the operation of the government core policy immunity principle and agreeing to pay Canadian taxpayers’ monies to legally undeserving Aboriginals at the conclusion of Potemkin-like “adversarial” legal proceedings, where, in similar circumstances involving non-Aboriginal Canadians, the government would never agree to such procedures and such payments.
In 2019 the federal government entered into the Federal Indian Day School Settlement, agreeing to compensate up to 200,000 Aboriginals for alleged harms, including physical and sexual abuse, associated with attending a Federal Indian Day School. Every person who attended such a school will be entitled to an automatic $10,000 and those who assert that they suffered some form of sexual or physical abuse will be entitled to additional compensation in amounts ranging between $50,000 and $200,000. The negotiated settlement also included, according to the government, “a forward-looking investment of $200 million in the McLean Day Schools Settlement Corporation for Legacy Projects to support healing, wellness, education, language, culture and commemoration”.
The claimants here are former students who were educated by the federal government at federally run schools situated on reserves, but who lived at home, just like non-Aboriginal small community students who attended the local public or separate school. There’s no total yet of the cost to the taxpayers of this giveaway, but the numbers, for both the claimants and the lawyers, are going to be in the many, many millions.
The Gottfriedson Indian Residential School Day Scholars Class Action Settlement is the result of a class action claiming compensation for individual “Day Scholars” who attended an Indian Residential School during the day but did not sleep overnight at one. Presumably they slept at home.
325 Indian bands also joined in the class action, claiming compensation allegedly owing to these bands.
The action as a whole was based on the alleged “great loss of our sacred languages and cultures” allegedly experienced by the both individuals and the bands separately. (That same dangerous and dysfunctional reserve culture described by Tanya Talaga, retired Judge Giesbrecht and Harold Johnson, above.)
The last day for an Aboriginal individual to submit an individual claim is in October of 2023, so there’s no bill to Canadian taxpayers yet totalled up for the individual claim part of this giveaway settlement.
The settlement of the other part of this class action- the separate claims of the bands, was announced on January 21st, 2023, when Ottawa announced that it had completely caved on this aspect of this case, and agreed to pay them as well. The amount that the profligate and unprincipled Trudeau government agreed to pay the bands is $2.8 billion.
This is a classic case of double compensation- unjust enrichment- because the bands are made up of individuals, who are all getting their own individual cheque for their alleged “loss of language and culture”. In a sane world that would be deemed at the same time to be compensation to the bands of which they are a part. But not to the benignly racist, legally nihilistic Trudeau government.
“Bands” are collectives, not individuals. Normally only individuals can sue for civil wrongs against them causing them compensable damages. Collectives normally can’t sue for damages suffered by the individuals who comprise the collective. A website for this class action is www.bandreparations.ca, indicating that the apparent legal strategy was to focus the claim on “reparations” in order to get around this problem.
They needn’t have bothered. The Trudeau federal government has long since abandoned all financial, legal and precedential concerns regarding Aboriginal lawsuits against it.
In January of 2023 Marc Miller, Minister of Crown-Indigenous Relations, proudly announced the settlement of the Federal Indian Boarding Homes class action lawsuit, which will see individual payments of $10,000 flowing to every Aboriginal placed in a boarding home, all at federal government expense, in order to attend a public school away from his home community, (because of the obvious fact that his home community had no school), regardless of his experience at the boarding home.
The lawsuit alleges that this was another “assimilation plan” of the federal government, rather than a simple, good faith, well-intended plan, where no education whatsoever was available on their home reserves, to ensure that Aboriginal children got an education in order to improve their chances in life.
There will also be individual payments of amounts between $10,000 and $200,000 for each former student who experienced “incidents of physical or sexual abuse or other abuse” while residing in a boarding home placement. There will be a $50 million fund established “to support commemoration, healing, language and culture”.
Said Minister Miller, a white flag notionally fluttering gaily above him: “This is a milestone for thousands of Indigenous Peoples (sic) who suffered abuse while residing in a boarding home placement”.
In January of 2023, not wishing to be left out, six Metis “survivors” of the Ile-a-la-Crosse, Saskatchewan boarding school- a school run from the 1860s to the 1970s by the Catholic Church for non-Indians, with never any federal funding- started a class action against the federal and Saskatchewan governments. They allege that they “suffered the same trauma that all residential schools did. We couldn’t speak our languages. The agenda was to take the culture out of the child”, Louis Gardiner, who attended the school from 1961 to 1969, said. The lawsuit was also filed on behalf of ‘intergenerational survivors” of the school.
A Metis today is a descendant of a Euro-Canadian man and an Aboriginal woman who, in addition to laudably partnering up in their personal lives, partnered up in the joint pursuit of Euro-Canadian farming or some aspect of the Euro-Canadian, capitalistic fur trade or buffalo hunt.
Metis are not “Indians.” This legal category of Aboriginal Canadians exists as a result of post-contact, frontier capitalism. Why they were included as one of the “aboriginal peoples of Canada” in section 35 of the Constitution Act, 1982 is an enduring mystery.
Metis, even amongst themselves, can’t decide who should qualify to be a Metis, or what Metis “culture” is.
But if the past is any indication, that won’t stop the federal government from deeming Metis culture to be something– something unique and different- (but don’t ask us to explain how unique and how different)- which was cruelly “lost” as the result of these so-called “survivors” being given a free education, which their parents had to consent to, which “loss” must be compensated for by generous cheques from the Canadian taxpayer.
The Indian Hospitals class action was started in 2018 and was certified as a class action in January of 2020. It claims $1.1 billion in compensation for former patients of hospitals established by the federal government, despite the absence of any treaty obligation in this regard, to provide medical care to Aboriginals. It also seeks a formal acknowledgment of the federal government’s alleged “negligence” in the operation of these hospitals. It appears that the action has not yet been settled. But no doubt the white flag will shamefully fly again, and “compensation” cheques will flow to Aboriginals who suffered the pain and indignity of being provided with health care, albeit likely imperfect health care.
In 2019 Aboriginals sued the federal government, alleging in their Statement of Claim that Canada was liable to them because, as Canada later shamefully admitted, it failed “to ensure that class members have access to potable water of adequate quality and quantity”, and “in comparison to municipal and private water systems, First Nations disproportionately experience long-term drinking water advisories”. The claimants alleged that Canada violated their rights under the Canadian Charter of Rights and Freedoms, breached their alleged fiduciary duty to them, and failed to act in accordance with the “Honour of the Crown.”
In December 2021 a formal white flag court proceeding occurred, at which the First Nations Drinking Water Settlement Agreement was approved by the court.
The Aboriginal claimants in this lawsuit, as in many of the other ones discussed herein, pleaded that their rights under the Charter of Rights were violated. This is ironically rich, given that Aboriginals are now arguing before the Supreme Court of Canada that the Charter of Rights does not apply on First Nations reserves.
The doctrine of the Honour of the Crown does not give rise to an independent cause of action. It requires “that the Crown act diligently and endeavour to ensure that it accomplishes the intended purpose of a constitutional promise to Indigenous Peoples”.[iv] (Italics added.) In constitutional matters, (which none of the cases discussed herein are), “it guarantees a process, not a specific result”.[v]
The fiduciary principle is only possibly relevant in section 35 constitutional cases. It is not relevant in any of the cases discussed herein.
This settlement pays money to individual Aboriginals, numbering 142,300, and to First Nation bands, numbering 258, all affected by long-term drinking water advisories.
The Honourable Marc Miller, Minister of Indigenous Services, is quoted by the Judge approving the settlement as saying: “The deficits pertaining to drinking water infrastructure on reserves are a result of systemic racism”.
Under the settlement Canada agrees to pay $1.438 billion into a trust fund for distribution to the claimants. Individual Aboriginals will be paid between $1300 and $2000 per year for every year they lived on a reserve subject to a drinking water advisory, going back to 1995. Aboriginals who have suffered “specified injuries” can claim additional compensation from a special fund totalling $50 million.
$400 million will be used to establish a “First Nations Economic and Cultural Restoration Fund”. From that fund, First Nation class members, (Indian bands), will receive a base payment of $500,000 and an amount equal to 50% of the damages, not including specified injuries, paid to individual Aboriginals living on that First Nation’s reserve. The retrospective compensation received by First Nation class members allegedly reflects the harms to the community, which are deemed to be different from the harms to its individual members. First Nations are free to use that money for any purpose.
In addition to compensating both First Nations bands and their individual members, (surely a form of double compensation), Canada has also agreed to provide funding to fix the problem moving forward. Canada agreed to make “all reasonable efforts” to ensure that Aboriginals have regular access to safe drinking water in their homes. This water must meet either federal or provincial water quality standards, whichever is stricter. The amount of water must be enough that it allows people to use water for all the usual things people in Canada use water for, “like drinking, bathing and showering, making food, washing dishes, and cleaning their home and clothes”. In support of this Canada is required to spend at least $6 billion through March 31, 2030, at a rate of at least $400 million per year on water and wastewater on First Nation reserves.
Contrary to the principle stated in Marchi and Tanudjaja that issues of government core policies and priorities should not be subject to judicial review and supervision-that these are ballot box issues, not judicial ones- Canada agreed that this prospective $6 billion (minimum) obligation will be subject to judicial review and supervision- it will remain “justiciable”. Canada can be hauled back into Court if for any reason it fails to deliver on this clean water utopia promise to the Aboriginal claimants.
Amongst a myriad of other reasons why this white flag settlement is harmful to the national interest, the $6 billion prospective aspect of it represents a shocking and craven submission by the executive branch of the government to the judicial branch- a profound breach of the separation of powers doctrine- which is contrary to the reputation, function and best interests of both. The Judge approving the settlement dealt with this profound issue as follows:
There remains uncertainty about the Courts’ ability to compel the type of prospective relief contemplated in the Settlement. For example, Representative Plaintiffs asked the Court to compel government spending on a go forward basis to ensure access to safe drinking water.
“Uncertainty”? No. Marchi and Tanudjaja, and numerous other Anglo Canadian legal precedents going back centuries, show that it is certain that Courts, acting judicially, can’t compel governments to undertake a specific core policy like “deliver a perfect water system to all Aboriginals in Canada”.
Notwithstanding this, the Judge approved the settlement. His extremely feeble rationale for doing this was that perhaps “Aboriginal issues and litigation are sui generis.” Given that no Court has ever said this, except with respect to constitutional issues, most likely they are not. By approving this prospective aspect of the settlement, the presiding judge showed partisanship and failed in his duty to protect the independent function of both his court and of the legislative branch of government.
Judges, citing the public interest, frequently reject negotiated litigation settlements brought before them for judicial approval. Justice Favel should have rejected this one.
The settlement occurred less than two years after the commencement of the two class actions against Canada that are settled by it. Like in the Brown case, the federal government, as a procedural gift to the Aboriginal claimants, agreed to have these incredibly complicated and disputed issues of fact and law decided by summary judgment.
Following the letter and spirit of Prime Minister Trudeau’s surrender Directive, Canada didn’t even file a Statement of Defence in either action. Canada merely filed an affidavit in the class action certification motions stating (correctly) that Canada’s position “was that it funded water systems on reserves rather than managed them, and that it could not be liable for funding decisions that reflected a core policy, (italics added), indicating that notwithstanding that Canada was aware of the government core policy immunity principle, it consciously chose not to defend either action on the basis of it.
It seems like the whole thing was a friendly setup from the beginning. Justice Favel too-quickly skated over and away from the government core policy immunity principle. He ignored the limitations law. He misleadingly and inaccurately stated that “uncertainty in the law meant that both parties faced a real and present risk of failure”. In fact, all the legal risks were on the Aboriginal claimants. Especially notable were his unusual remarks- as if he was being self-consciously pre-emptive in this regard- as if collusion was in the air- asserting how the settlement was arrived at only after “arms length…hard-bargaining sessions”, and that “there has been no collusion in reaching the settlement.” (Paragraphs 96 and 97 of his Reasons.)
Adding to the sense of unseemliness surrounding this settlement was the fact that the pre-appointment career of Justice Favel gives rise to a reasonable apprehension of bias on his part in this matter. Prior to his appointment to the Federal Court in 2017, while in private practice, Justice Favel acted largely for Aboriginal clients, was a member of the Oversight Committee of the Indian Residential School Settlement Agreement, taught “First Nations economic development” at the University of Saskatchewan College of Law, and, according to the government website announcing his judicial appointment, is “a member of Poundmaker Cree Nation, (who) maintains close connections with his community and served on the Band Council from 2012 to 2013.”
Adding to this unseemliness is the fact that the Settlement Agreement order Justice Favel signed defines “First Nations Class Members”, who have until March 7, 2023, to make a claim, include “any Impacted First Nation that elects to join this action in a representative capacity.” Justice Favel would have known that it was and is a distinct possibility that Poundmaker Cree Nation would elect to join in the action and claim compensation. They may already have done so. In such circumstances, as a member of Poundmaker First Nation, he has a potential conflict of interest, or perhaps even an actual one, which brings the administration of justice into disrepute. He may be entitled to a compensation cheque some day arising from his own court order. On this ground he should have recused himself from involvement in this matter. Federal government lawyers should have asked him to recuse himself. Had they not been so cowed and neutered by the Directive, they would likely have done so.
The area of child welfare is another category of giveaway of free taxpayers’ monies to legally undeserving Aboriginal litigation claimants- giveaways that completely ignore the government core policy immunity principle.
Here, once again, the federal government has agreed to pay “compensation” to allegedly aggrieved Aboriginals on the assumption that it has a duty of care in negligence to deliver to them a more perfect world, in this case a happy, carefree childhood, where, as stated, in similar circumstances, it would never agree to compensate non-Aboriginals.
In 2021 Aboriginal children made up 53.8 per cent of all children in government care, while only comprising 7.7 per cent of all Canadian children under 14 years of age. In Manitoba there are 10,000 children in government care. Ninety per cent of them are Aboriginal children.
The causes of this tragic situation have little to do with racism, colonialism, residential schools, underfunding of child welfare systems and poverty, the usual excuses trotted out by Aboriginal leaders when they make their incessant demands for more money- more money to solve a problem that cannot be solved by money.
The causes of this tragedy are rooted in section 35 of the Constitution Act, 1982, which entrenches an ever-expanding “separate but equal” legal regime oppressing Aboriginals, (but enriching their elites), just as the separate but equal doctrine oppressed Blacks in America for 100 years. The causes are structurally rooted in the very existence of Indian reserves themselves, and in the anomie, hopelessness, civic infantilization and profound social dysfunction that is characteristic of them, as only touched upon by Harold Johnson, retired Judge Giesbrecht and Tanya Talaga, above.
Aboriginal elites selfishly embrace the status quo and want to expand it. On the other hand, they hypocritically want to be able to sue the government and get compensation for the natural and foreseeable negative consequences of it.
The Justin Trudeau government encourages and rewards this legal hypocrisy.
In 2022 his government settled a class action against Canada brought on behalf of off-reserve Aboriginal children living in a situation of danger with their off-reserve dysfunctional families, (the only reason a child would be taken out of his family setting), and placed in the care of a non-Aboriginal person or family. The claim is based on Canada’s alleged “duty to protect apprehended Indigenous children from harm, specifically as it relates to the loss of their Aboriginal identity”. It covers all Aboriginal children who were so rescued over a period extending from the 1950’s to the 1990’s.
Why should Canada have such a “duty to protect”? It’s the provinces, not the federal government, who carry out child welfare policy, and it was provincial child welfare workers, carrying out their “duty to protect” Aboriginal children from domestic situations of danger, as they reasonably and in good faith saw it, who removed the children from their dangerous and dysfunctional homes. Inexplicably the provinces were not named in lawsuit or brought into it by the federal government.
If Aboriginals have the” inherent right of self-government”, as Mr. Trudeau’s Principles respecting the Government of Canada’s relationship with Indigenous Peoples assert, and as Aboriginal leaders assert, shouldn’t that “duty”, assuming it exists, lie on the shoulders of First Nations governments, rather than on the Canadian government?
What “Aboriginal identity”? Hadn’t each child’s parents, by moving off reserve to a town or city, already willingly forgone much of that?
Isn’t it the height of racist thinking to suggest that there’s something wrong with placing an Aboriginal child with a non-Aboriginal family?
The now-certified class action alleges that Canada “failed to take reasonable steps to protect and preserve the aboriginal identity of the Indigenous children and youth who were apprehended”, and that “Canada denied Indigenous children and youth any reasonable opportunity to maintain connections to the language and territory of the Indigenous community, group or people to which they belonged”.
These parents of off-reserve children, having moved their families from their home reserves to towns and cities, had already voluntarily moved away from their “language and territory.” Assuming that there was a legitimate cause of action, which there is not, why should Canadian taxpayers have to pay for this?
Again, none of these obvious, common-sense questions will be addressed, because, partly to avoid having to deal with these and many similar ones, Ottawa caved and sold out both itself and its taxpayers once again.
In January of 2022, in another, much bigger and still ongoing case, the federal government announced a $40 billion settlement of alleged, nation-wide Aboriginal child welfare “inadequate funding” claims. As described by Professor Emeritus Tom Flanagan:
“The original complaint, launched in 2007, took issue with the First Nations Child and Family Welfare program, which came into effect in 1991, and is now being phased out under new legislation. The essence of the claims, which were adjudicated by a Canadian Human Rights Tribunal, is that the federal program was underfunded in comparison to provincial child welfare programs, and thus discriminatory under the Canadian Human Rights Act.
The settlement will provide $20 billion for improvement of services for the next five years, and $20 billion for compensation to First Nations children living on Indian reserves who were taken into care form 1991 onwards. Compensation will also be paid to these children’s caregivers- parents or grandparents.
No concrete harm to individual children was ever demonstrated in the litigation; the harm was said to be discriminatory underfunding of the program.
Two unelected lawyers who constituted the Canadian Human Rights Tribunal nullified long standing government policy without any consideration of how to replace it or what that might cost.
His $40 billion settlement sets a new benchmark for Indigenous claims far higher than the previous maximum amounts in the range of $6 billion-$8 billion.”
Agreeing to this settlement constitutes a more stunning than usual abrogation by the federal government of the government core policy immunity principle- a more stunning than usual betrayal of not only Canadian taxpayers, but the very rule of law itself.
No government-created, administrative Tribunal should be able to in effect make new government policy- policy purporting to have the effect of law- and then order the very government that created it to make new laws, find, (borrow), billions of dollars of new money and then spend that money in accordance with the Tribunal’s dictates. This constitutes a massive, judicial usurpation of the power of the legislative branch of government.
As the political philosopher Edmund Burke wrote:
The constituent parts of a state are obliged to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with separate communities. Otherwise, competence and power would soon be confounded, and no law left but the will of a prevailing force.[vi]
The Court decision that preceded this settlement was written by Federal Court, Trial Division Judge Paul Favel, whose pre-appointment career, as stated, gives rise to a reasonable apprehension that he might have been biased in favour of the Aboriginal claimants. His decision, just as his drinking water settlement decision did, skated over and skated away from the government core policy immunity principle, which principle, in this writer’s respectful submission, was his duty to consider and uphold.
The federal government properly appealed Justice Favel’s decision. It argued, amongst other arguments, that the Tribunal did not have jurisdiction to provide compensation similar to that given in a class action and that no individuals were party to the proceeding or provided any evidence of harm before the Tribunal. It argued that the Tribunal failed to respect the principles of damages law, such as principles of causation and betterment, discussed above. The federal government, absent the Directive, would also likely argue that the Tribunal’s compensation orders violated the government core policy immunity principle. It was a solid and necessary appeal, and fully in the national interest.
But then, to its shame, and again, for the shallowest and most transient of political purposes only, the federal government completely reversed itself, abandoned the appeal and , on January 5th, 2022 entered into the legally unprincipled, unprecedented and baseless settlement so well summarized by Professor Flanagan, above.
The settlement was contingent on Federal Court approval and the approval of the Canada Human Rights Tribunal.
Shock upon shock, in October of 2022 the out-of-control Canadian Human Rights Tribunal, imperiously citing deficiencies in the settlement to the effect that all possible Aboriginals who might be entitled to compensation were not included in it, refused to approve the settlement. It appears that their approval must first occur before it goes back to a Federal Court judge for final approval. This is good news for Canadian taxpayers, but for the wrong reasons. The Tribunal members should have refused to approve the settlement because, based on their own second thought, they realized that they had no right to make the compensation orders in the first place- that they, as members of a quasi-judicial Tribunal, were usurping the sole function of the legislative branch of the federal government to make discretionary core policy decisions.
On November 23rd, 2022, the Assembly of First Nations joined in, filing an application for judicial review of the Tribunal’s decision to refuse to approve the settlement, “in order to ensure that all individuals who were harmed by Canada’s discrimination would be entitled to compensation.”
And there the sorry matter now sits.
Some informed writers suggest, with reason, that all of the above cases are manifestations of an unhealthy, unjustified and counterproductive culture of Aboriginal grievance and victimhood. There is an aspect of that here, but this writer respectfully disagrees with the main proposition. The main blame lies elsewhere.
These cases are a manifestation of the complete abrogation by the federal government of its near sacred duty to protect and defend the traditional, necessary and fundamental rights, interests and prerogatives of the federal Crown.
In settling these cases simply in terms of their sense of right and wrong- their moral feelings- rather than in accordance with long-established, state-protecting, government laws, policies and precedents, the individual actors who allowed these settlements to occur betrayed both their own fundamental interests and the high degree of trust they owe to all the citizens of Canada.
In allowing their clearly strong moral feelings- feelings devoid of any basis in critical thought or judgement- to triumph over every other consideration, they also violated the rule of law.
The whole point of the rule of law is to set standards of governance that transcend individual moral feelings. If all we have are our moral feelings, we are no better than religious and political fundamentalists who insist that their moral scheme justifies destroying other incompatible moral systems…the rule of law substitutes legal reasoning for moral righteousness.[vii]
Aboriginal writer Calvin Helin wrote in his seminal book Dances with Dependency- Out of Poverty Through Self-Reliance[viii]:
“The current problem is that many Indigenous leaders still seem to be stuck in grieving mode when the time to move on has already come and gone…How is dwelling on historical injustices going to lift Indigenous peoples out of the morass of social and political pathologies?… We should be asking, “What pragmatic steps can we take now to make the lives of ordinary Indigenous peoples better? It should be obvious that we must begin moving forward and looking for real solutions. To paraphrase Bill Wilson, the result of simply continuing to seek blame is that we continue to “wallow in the puke of our own suffering”.
Aboriginal Canadians will never leave their civically infantile state and “grow up” until their leaders stop so relentlessly blaming- and suing- the rest of Canada for their present situation, and start to see their history in more relative, mature terms- start to regard non-Aboriginal Canadians, past and present, as generally the well-meaning, flawed humans, (just like them), that we were and are- and start to move on and away from the petulant, culturally adolescent, intellectual and psychic state their leaders are presently mired in.
Our federal government owes Aboriginal Canadians less performative consolation that does nothing to improve their situation and more truth and competence.
Instead of encouraging Aboriginals to passively and purposelessly wallow in their present civically childlike state, as the above litigation settlements do, and damaging the Canadian state and the rule of law in the process, the federal government should be focussed on positive, pragmatic, forward-looking solutions for Aboriginal Canadians- solutions that treat them as civic adults- with the goal of integrating them legally, economically and socially into the fabric of 21st century Canada.
This is the only true path to meaningful progress for Aboriginal Canadians and the only true path to reconciliation with non-Aboriginal Canadians.
January 29, 2023
[i] Sean Fine, Residential School Deals Need to be Probed, The Globe and Mail, November 18, 2015
[ii] House of Anansi Press Inc. 2018
[iii] In Peace and Good Order-The Case for Indigenous Justice in Canada, McLelland & Stewart, 2019
[iv] Saugeen First Nation v. The Attorney General of Canada, 2021 ONSC 4181, at paragraph 646
[v] Ktunaxa Nation v. British Columbia (Forest, Lands and Natural Resource Operations), 2017 SCC 54, at paragraph 79
[vi] Reflections on the Revolution in France, Penguin Books Ltd. London, 2004, first published in London in 1790
[vii] Lief Carter and Thomas Burke, Reason in Law, London Classics, 2010
[viii] Ravencrest Publishing, Woodland Hills, California, 2008
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