By fighting a compensation ruling, the government denies First Nations children justice — again

Canada is facing what former Minister of Indigenous Services Jane Philpott described as a "humanitarian crisis" with respect to Indigenous child welfare. And yet action taken last week by the Liberal government, which is challenging a landmark human rights ruling ordering compensation for First Nations children apprehended by on-reserve child welfare services, suggests that the government still isn't prepared to take the necessary action.

The Conservatives have indicated they would do the same if they form government. These actions continue to put the lives of First Nation children at risk.

More Indigenous children have been removed from their families and are in foster care today than were in residential schools at the height of that system. Over half of all children in foster care in Canada are Indigenous, despite the fact that Indigenous children represent only about seven per cent of the population aged 14 and under. In Manitoba, the rate of Indigenous children in foster care is almost 90 per cent. Times may have changed, but Canada's policies of removing Indigenous children from their families have not. 

Chronic underfunding

The root of the problem is that Canada has underfunded services for Indigenous Canadians for decades. A 2005 report by the First Nations Child and Family Caring Society of Canada found that funding for child and family and health services for Indigenous children in Canada was 30 per cent less than comparable funding for non-Indigenous children.

While services are often delivered by provincial, local, or even Indigenous child welfare agencies, Ottawa is responsible for providing the funding. The amount of funding provided is based on how many children are apprehended and placed in care, which creates a perverse incentive for child and family services agencies to remove Indigenous children from their families, instead of providing resources and supports that will enable kids to be raised in a culturally supportive environment in their communities. 

This perpetuates many of the generational problems fostered by the Indian Act and the residential school system, and the insufficient resources and supports in place has been found to result directly in elevated rates of abuse and even death in care.

In 2007, the Caring Society, under the leadership of Cindy Blackstock and the Assembly of First Nations, took Canada to the Canadian Human Rights Tribunal, asserting that Canada had been discriminating against First Nations children by underfunding child welfare services. Canada spent nine years trying to derail the proceeding through technical motions, appeals of those motions, and delays in disclosing documents. 

Nevertheless, in 2016, Canada lost. The tribunal ordered Canada to cease discriminating against First Nations kids and to change its child welfare policies. The tribunal found that Canada was fully aware of the impact its discriminatory actions were having on Indigenous children, and despite the numerous reports and recommendations provided to the government about how to address these systematic failures, Canada failed to act. 

Since the original ruling, the tribunal has issued eight non-compliance orders in an attempt to force Canada to comply with its original ruling. It also ordered Canada to compensate the children impacted by the on-reserve child welfare system since Jan. 1, 2006, with $40,000 each. This ruling would potentially provide billions in compensation to First Nations children and their families who have been separated due to Canada's discriminatory policies.

• Trudeau government seeks judicial review of tribunal decision to compensate First Nations kids

• Ottawa ordered to compensate First Nations children impacted by on-reserve child welfare system

This is what the government is now challenging. In a statement released last week, Minister of Indigenous Services Seamus O'Regan said that Canada agrees with the tribunal that there has been discrimination and that there is a need for compensation. Yet in its application for review of the tribunal's decision, Canada is requesting an order that would overturn the requirement that Canada compensate those children against whom it has knowingly discriminated.

All of this could have been avoided if successive Conservative and Liberal governments had done what they should have done in the first place: funded these services properly so that more Indigenous kids could grow up in their families and communities. Inaction, like action, has consequences. In this case it has had serious consequences for Indigenous children, families and communities. Canada must take responsibility for that. 

As the saying goes, justice delayed is justice denied. For too long, First Nations children have been denied justice, while governments squabble over who will foot the bill for services comparable to those that non-Indigenous Canadians enjoy. Canada now needs to commit to doing the right and honourable thing: to properly fund services in the future, and to properly compensate those who have been harmed in the past. Reconciliation calls for nothing less. 

Roy Stewart is an Indigenous lawyer with Burchells LLP, and works primarily with Indigenous Peoples to advance their inherent rights. Derek Simon is a lawyer with Burchells LLP, and works with Indigenous peoples on self-government and rights implementation.

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