Canada Continues to Drag Out Legal Battle with First Nation Child and Family Caring Society
Policy Brief by Charlotte Mackenzie.
Today, there are more Indigenous children in welfare care than when residential schools were at peak capacity [1]. This statistic is heartbreaking and while true, it is nearly unbelievable. There are many contributing factors to this situation, but one can be traced to an ongoing legal battle between the federal government and the First Nation Child and Family Caring Society (the Society).
In 2007, the Society submitted an official complaint to the Canadian Human Rights Commission, claiming that the federal government discriminated against “First Nation children living on reserve and in the Yukon by providing inequitable and insufficient funding for [child and family] services”[2]. This discrimination is contrary to the Canada Human Rights Act.
For every other Canadian, these services are provincially funded however, the federal government is constitutionally responsible for funding and administering these services on Indigenous reserves [3]. In their complaint, the Society emphasized that on average, the federal government provides 22 per cent less funding for child and family services on reserves than the provincial government provides to “predominantly non-Indigenous communities”[4]. This chronic underfunding has led to Indigenous children being “drastically over-represented in child welfare care” as parents and guardians are not provided with sufficient services to keep their families afloat [5].
Even though the initial complaint was made fourteen years ago, the case is still not resolved, largely due to the fact that the federal government under both Stephen Harper and Justin Trudeau used legal measures to extend the process. After the complaint was initially filed in 2007, the government appealed the case, claiming they “should be shielded from complaints of discrimination” since there was no other comparable situation; no other specific group of citizens has funding from the federal government for these services [6]. This motion was rejected by the Federal Court of Appeals in 2013, and the case was then heard by the Canadian Human Rights Tribunal (CHRT) in 2014 [7].
By 2016 the CHRT reached a decision and determined there was an overwhelming amount of evidence of the federal government’s discrimination against Indigenous people by “den[ying] essential services after significant and detrimental delays, causing harm to the children and their parents” [8]. While this harm cannot be undone, the CHRT decided that the federal government owed the victims and their families financial reparations.
In 2019, the CHRT ruled that the federal government owed reparations of $20,000 “to each First Nations child who was removed from their home since 2006, and to each of their parents or grandparents where the removal was unnecessary”[9]. This is a landmark decision because $20,000 is the maximum penalty the tribunal can prescribe. The CHRT rarely orders the maximum amount that should be paid to victims as it is reserved for “worst-case scenario[s]” [10]. Many Indigenous advocates see this decision as an important step towards reconciliation, as systemic discrimination was finally acknowledged and dealt with at the highest level.
Yet, this struggle remains unresolved. While the federal government claims to acknowledge the systemic discrimination in the welfare system and also claims to support financial compensation for affected individuals, they view the compensation ordered by the tribunal as “inconsistent with the nature of the complaint and the evidence presented” [11]. They filed for a judicial review of the tribunal’s decision, asking for financial reparations to be “set aside” [12].
This request sparked harsh criticism, as many Indigenous advocates argue these actions represent the government’s attempt to reverse the decisions and avoid compensating victims for decades of underfunding and racist policy. As of February 2020, the federal government has not paid any compensation and remains in consultation with leaders of the Society to determine who is eligible for the compensation [13].
The last update on the case occurred before the Covid-19 pandemic engulfed national and international policy, so it is unlikely that this case will be a priority for the government until the pandemic is under control. However, once it is finally resolved, it will give the public an indication of the federal government’s commitment to reconciliation with Indigenous people.
Citations:
First Nations Child and Family Caring Society. “Why Is This Case Important?” The Caring Society. First Nations Child and Family Caring Society, 2021. https://fncaringsociety.com/why-case-important.
2. Gunnarsson, Maya. “First Nations Child and Family Caring Society of Canada v. Canada, 2019 CHRT 39.” McGill Journal of Law and Health. McGill Journal of Law and Health, December 12, 2019. https://mjlh.mcgill.ca/2019/10/15/first-nations-child-and-family- caring- society-of-canada-v-attorney-general-of-canada-2019-chrt-39/.
3. Legal Team. “FIRST NATIONS CHILD AND FAMILY CARING SOCIETY ET. AL. V. CANADA.” Amnesty International Canada. Amnesty International Canada, November 20, 2016. https://www.amnesty.ca/legal-brief/first-nations-child-and-family-caring-society- et-al-v-canada.
4. Legal Team, 2016 5. First Nations Child and Family Caring Society, 2021
6. Legal Team, 2016
7. Legal Team, 2016. Note: CHRT. “Welcome to the Canadian Human Rights Tribunal .” CHRT. CHRT, February 3, 2021. https://www.chrt-tcdp.gc.ca/index-en.html. The CHRT was created by Parliament in 1977, and is very similar to a court of law however it is less formal and only hears cases where there is alleged discrimination.
8. Gunnarson, 2019
9. Gunnarson, 2019
10. Gunnarson, 2019
11. Stefanovich , Olivia. “Trudeau Government Challenges Decision to Compensate First Nations Kids | CBC News.” CBCnews. CBC/Radio Canada, October 5, 2019. https://www.cbc.ca/news/politics/human-rights-tribunal-liberal-child-welfare-appeal- 1.5308897.
12. Gunnarson, 2019
13. Legal Team, 2016