After a legal battle lasting 12 years, the Canadian Human Rights Tribunal (CHRT) has ordered the federal government to pay compensation to First Nations children and their families who were unnecessarily separated by the child welfare system.
The September 6 ruling awarded $40,000 to each child taken from their homes since 2006 for reasons other than sexual, physical or psychological abuse – the maximum amount allowed for worst-case scenarios involving “wilful and reckless” racial discrimination.
“Canada’s conduct was devoid of caution with little to no regard to the consequences,” stated Tribunal members Sophie Marchildon and Edward Lustig in the order. “The Panel stresses the fact that this amount can never be considered as proportional to the pain suffered and accepting the amount for remedies is not an acknowledgement on your part that this is its value.”
It also awarded maximum damages to each parent or grandparent with a child taken unnecessarily, each child who experienced abuse in foster care, and each child taken into foster care because proper medical supports were not made available to their families.
The government had until October 6 to appeal the ruling two weeks before the upcoming federal election.
“This is about our children, their safety, their right to be with their families, kin and communities and their right to quality of care,” stated Assembly of First Nations (AFN) National Chief Perry Bellegarde. “No government should be fighting these fundamental values.”
Bellegarde added that work remained to see the ruling implemented, building on Bill C-92, which recognizes Indigenous jurisdiction over child and family services.
The human rights case was filed by the AFN and the First Nations Child and Family Caring Society in 2007. Since a first ruling in favour of First Nations children in 2016, the Tribunal has now issued seven more compliance orders against Canada, which refused for years to provide equivalent funding for child welfare services on reserves as provincial governments provided for those off-reserve.
The paltry resources for on-reserve social services incentivized removing Indigenous children from their families, the ruling found. Jordan’s Principle, which requires the child’s needs to take precedence over jurisdictional issues over who should pay for it, was insufficiently implemented. While the Liberal government finally committed to funding prevention services adequately last year, infrastructure for these services is still lacking.
“The Tribunal’s finding demonstrates how little Canada learned from the residential school and the Sixties Scoop apologies and class actions,” stated Cindy Blackstock, who heads the Caring Society. “Treating kids fairly should not require a court order.”
With an estimated 50,000 children eligible for compensation, the payout could easily exceed $2 billion. The Tribunal ordered Ottawa to enter discussions with the Caring Society and AFN to establish an independent qualification and distribution process, returning with proposals before December 10.
Blackstock has said people across the country should ask every candidate about their plans to fix this long-standing discrimination against vulnerable children. Bellegarde said an appeal would be a slap in the face to the idea of reconciliation.
When asked at a town hall meeting in Saskatoon whether the Liberal government would accept the Tribunal ruling, Prime Minister Justin Trudeau didn’t directly respond. Saskatoon Tribal Council Chief Mark Arcand, who asked the question September 19, said he meant to send a signal that whoever wins the election will be held accountable to the ruling.
“What happened with the residential schools quickly was replaced by child welfare interventions that continued to break up families,” Arcand said.
Logistical issues still to be arranged include establishing trust funds for children, opt-out provisions, and protections for mentally disabled children and those with no parents or grandparents. The Caring Society provides a list of guidelines for determining eligibility on their Facebook page.
Although reports have suggested the largest proportion of affected children are in the Prairies and British Columbia, First Nations children throughout Canada have been impacted by this mass removal. Though it is unclear to what extent the problem impacted Eeyou Istchee, a spokesperson for the Cree Health Board asserted the foster-care system is significantly different in the territory.
“As the TRC (Truth and Reconciliation Commission) pointed out in its calls to action, we don’t have a solid number of children in care, or First Nations kids in provincial systems versus the federal system,” said Andrea Auger, the Caring Society’s reconciliation and research manager. “There was no data in the ruling showing where those kids were coming from.”
A separate $3.05-billion class-action lawsuit filed against Ottawa in March is still pending, based on similar claims of systemic discrimination but extending to the period between April 1, 1991 and March 1, 2019. According to the claim, “there are approximately three times the numbers of First Nations children in state care now than there were in residential schools at their apex in the 1940s.”