Thousands of First Nations kids unnecessarily taken from their homes and communities and placed in foster care deserve compensation from the government of Canada—Prime Minister Justin Trudeau says he doesn’t debate that idea, that he believes families are owed redress for their trauma, and that he wants to “get it right.” That realization has been a long time in coming—advocates for First Nations kids have been fighting first the Harper government, then this one, for more than a decade. Reforms of the system have been hard won, and the Canadian government has yet to hand over any money to the youth that need it.
Currently, there are two pathways that could lead to financial justice. In September, after a 12-year process, the Canadian Human Rights Tribunal (CHRT) ordered Canada to pay $40,000 to each child affected since 2006. By early October, the federal government was trying to appeal that ruling. And at the same time it’s fighting the CHRT, the Trudeau government is facing a $6-billion class action lawsuit filed on behalf of those same kids, one that goes all the way back to 1991.
In November, Justice Minister David Lametti and Indigenous Services Minister Marc Miller said that the government would work towards certifying the class action suit, meaning that it’s willing to go through a negotiated settlement, or even a trial. That might sound like good news. But having seen Canada dodge its responsibilities time and again, social worker and McGill University professor Cindy Blackstock isn’t celebrating a win quite yet.
“I’ve given up putting a lot of faith into what they say,” says Blackstock, who is also the executive director of the First Nations Caring Society, a non-profit that supports and advocates for child and family service agencies. “I measure them by what they do and what it means for kids on the ground. I want to see those youth formerly in care get their tuition money. That’s where I measure success.”
Blackstock’s skepticism is understandable. It was in 2007 that the Caring Society and the Assembly of First Nations filed its CHRT complaint, alleging that Canada had long known that its funding formula for on-reserve child welfare agencies was inadequate and harmful. It also stated that this chronic underfunding represented institutionalized racial discrimination.
This underfunding of family welfare agencies is a significant contributor to the overrepresentation of First Nations children in foster care. Today, they account for more than half the kids in care in Canada, though they make up only seven per cent of the population that is 15 years old or younger.
And one of the primary reasons social agencies cite for apprehending First Nations children is “neglect,” which more often than not simply means poverty. But tight budgets often prevent federal social agencies from offering help on-reserve, whether that’s referrals to foodbanks and social housing, or services such as counselling and parenting programs. Instead, children are put into provincially run foster care, so that the feds can pass on the cost of these crucial interventions.
As Blackstock points out, no other kid in Canada has to be taken out of their homes and communities to access essential services that can, in some cases, keep families together.
The 2007 human rights complaint was an attempt to “shock the government into doing the right thing” about that, says Blackstock, who had watched Canada ignore report after report about the effects of its negligence. She had to keep watching until January 2016, when the human rights tribunal finally ruled that by “inadequately and insufficiently” funding on-reserve child welfare, Canada had in fact racially discriminated against First Nations children. The CHRT made immediate recommendations for reforming the funding scheme.
Three years later, in September 2019, the tribunal turned its focus to the question of compensation, which is when it ordered the Canadian government to award $40,000 to every child taken from their homes and communities, as well as those denied health and education because of funding disputes between the federal government and the provinces.
But what should have been a huge, long-awaited win for Blackstock turned out to be yet another disappointment, when the Trudeau government announced its intention to appeal the order. It also asked to delay putting together a plan to implement the $40,000 payments until a decision is made about an appeal, but a federal court denied that request in November.
A spokesperson for Indigenous Services Canada reiterated that despite the attempt to appeal, Canada is “committed” to finding a compensation plan that “will ensure long-term benefits for individuals and families and enable community healing.”
In an email, press secretary Kevin Deagle said that all of the human rights tribunal’s other orders were being implemented, including reforming the funding formula for First Nations child and family services, and assigning Assistant Deputy Minister Valerie Gideon to work with both the tribunal and the class action appellants to develop a suitable compensation strategy.
“Nothing about our commitment to implement other orders from the CHRT or reforming child and family services changes,” said Deagle.
There are reasons why the government might choose to prioritize the class action over the tribunal ruling, says lawyer David Sterns, a partner with Toronto-based Sotos LLP, one of three law firms involved in bringing the class action.
For one, should the lawsuit go to settlement, there’s an opportunity to negotiate, including tailoring individual compensation to each child’s experience of trauma. Secondly, once the government paid out on discrimination, it wouldn’t have to revisit this issue again. This wouldn’t be the case if they obeyed the tribunal order. “The CHRT ruling does not give the government closure,” says Sterns. “They could…still be faced with the substantial liabilities that remain as a result of the class action.”
In effect, should the CHRT order stand and the class action be won, the government could end up paying twice.
The class-action is a familiar arena for redressing Canada’s wrongs against First Nations. Both the Indian Residential Schools settlement and the more recent Indian Day School settlement were class action lawsuits. Sterns says there are some potential benefits for survivors. There is no cap applied to the amount of compensation granted to affected individuals, whereas the CHRT was hampered by a maximum limit of $40,000. Moreover, the class action dates back to 1991, making more people potentially eligible for reparations. Sterns says if the case is certified and goes to settlement, it could be completed in six months.
Where the question of compensation will wind up—how payments will be structured and how much will be awarded—remains unknown. The struggle to get equal care and treatment for First Nations kids has been an arduous, uphill battle, and it’s not over yet. Blackstock is in it for the long haul—here, she discusses her lengthy confrontation with the government about how systemic racism and discrimination has played out in the lives of First Nations kids, and what Canadians can do about it.
Let’s start with the compensation order. Can you walk us back on your dealings with the government in that regard?
The Tribunal didn’t issue a direct order on compensation in 2016—it decided it wanted to deal with the worst effects of the discrimination on an ongoing basis so that’s what it prioritized, and rightly so.
But about a year and a half ago, we started to think, “Well, they’re going to turn their minds to this [the issue of compensation].” I reached out to Canada and said, “Look, why don’t we just mediate a settlement to this? Why isn’t this the first generation of kids that doesn’t have to sue you to get you to accept responsibility?”
In December of last year the federal government sent us a letter saying “we’re not prepared to discuss this with you. We are going to litigate this at the tribunal.” We had a hearing in April… Canada’s opinion then was, it’s unfair to Canada to pay individual compensation because this is a systemic case. Had we wanted individual children to get compensated, then we ought to have had those children testify.
One of the federal government’s arguments against paying out via the Tribunal order is that there are no individual victims identified. What’s your response to that?
I’ve said this publicly and privately to Canada—they are a repeat offender with First Nations kids. They are a wrongdoer. So, the hubris it takes for them to say, “I’m going to compensate you, but I’m not going to do it under the legal system I’ve been operating on…In order to get that compensation, you just tell me what you’ve gone through and I’ll put a dollar value on that.”
The whole imagery of a four- and five-year-old being asked to say what it’s like to be taken from your family unnecessarily in order for Canada to cough that [money] out is just ridiculous.
Is it true that under the current system, funding for things like parenting programs and counselling only kicks in when you take kids away from their families?
That’s exactly it. We have First Nations agencies testify that…they work with families who, if they got the same kind of prevention services that everyone else enjoys [throughout Canada], could be kept together.
Can you imagine if I took over a province and said, “I’m cutting every public service by 30 to 50 percent and one in six communities [won’t] have clean water to drink” and I went back to check on their kids a year down the line? How many neglect complaints would I find? Quite a few. It’s not the parents, it’s that the town hasn’t got the equal opportunity to provide the level of care for the children that they want.
One of the primary reasons cited for taking First Nations kids from their families is “neglect.” Can you unpack what that term means?
When we hear “neglect,” it brings up this image of a person who has the resources to do something that they are choosing not to do. But what we find with First Nations families [is that neglect includes factors like] poverty, poor housing conditions and addiction—which is something people have to take responsibility for, but which is almost impossible to deal with unless you have services and support. Addiction is a symptom of mental health conditions and a lot of these people got no support to deal with [trauma related to] the residential school system.
We can do something about to keep these families together, and that’s what the Tribunal found. They said, “look if we can give families the same kind of opportunities to care for their kids, many of these kids can stay at home.”
I’m not an idealistic thinker. I think some First Nations kids need to be in care, whether it’s because of physical abuse or sexual abuse or whether the parent does have the resources and is choosing to neglect them anyway. But when you see kids in care [at disproportionate rates] it means the system is broken, not the kids.
Has this ongoing fight with the government resulted in any positive changes?
The biggest change is in the Canadian public. I remember when we started the I Am a Witness campaign to raise awareness about the [human rights] complaint and we invited people to read the documents and come to the hearing. The truth is almost no one came. It was empty courtroom after empty courtroom. I’ll never forget the day some non-Indigenous youth and some First Nations youth showed up. They were from an alternative school, which means they get into trouble a lot, and I said, “okay, so do I.” And they said, “sometimes we deserve it, but a lot of times it’s these systems [at fault], and no one takes them on. But you’re here and you need our help.” They came and sat through that hearing, and they came and sat in on the next hearing, and by 2012 we had so many children attending the hearings that we had to book them in shifts.
The other positive change is Jordan’s Principle.* Thanks to his family and to the tribunal, First Nations kids received over a quarter of a million products and services from dental care to physiotherapy to counselling that they would have been denied previously, and in many cases these services are life-saving.
That is a good thing. The limit is that Canada refuses to fund a building [where] those prevention services can be offered. So, in the communities with housing crises, that means there are no prevention services.
*Editor’s note: The Principle is a 2007 federal resolution designed to ensure First Nations children won’t be denied essential services while different levels of government bicker over the costs. It’s named after Jordan River Anderson, a Cree Nation five-year-old who died during such a dispute.
What are your next steps?
We have something called the Spirit Bear Plan, which is a plan to fully cost out and eradicate the funding shortfalls in public services for First Nations kids. The plan advocates for an independent evaluation of the Department of Indigenous Services. For 153 years, that department has offended against First Nations kids in ways that have contributed to their deaths and unnecessary family separations, and it has never had an independent evaluation.
The Spirit Bear Plan also asks that the Parliamentary budget officer cost out all these inequalities, from water to early childhood education to child welfare, and come up with [a holistic plan] to deal with all of them. Because this drop-by-drop, program-by-program approach isn’t working for children. It’s not working for families and it’s not working for Canadians either.
Fix the damn thing! Give these kids an education. They shouldn’t be going to schools with black mould in them.
What can Canadians do to support your efforts?
Caring individuals can write to their MP and ask that the Government of Canada fully comply with the Tribunal’s decisions to end the discrimination against First Nations children and pay the compensation they are owed. And, finally, the Caring Society also offers 7 Free Ways to Make a Difference on its website. These are seven campaigns that include calls to action that can help people get involved in reconciliation for First Nations kids.
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