Rebuilding Canada’s Flawed Foundation

CASE COMMENT ON CANADA v. FIRST NATIONS CHILD AND FAMILY CARING SOCIETY

Guest post by Kate Gunn, First Peoples Law. First published on October 27, 2021.

September 30, 2021 marked the first National Day for Truth and Reconciliation. The federal government called on Canadians to don orange shirts bearing the message Every Child Matters and to reflect on the impacts of Canada’s residential school system. 

One day earlier, the Federal Court issued its decision in Canada v. First Nations Child and Family Caring Society dismissing the federal government’s latest effort to avoid paying compensation for its chronic underfunding of child and families services on reserve. 

The Court’s decision highlights the gap between Canada’s public commitments to Indigenous Peoples and its failure to carry out the hard work that reconciliation requires. 

What it is about 


For decades, First Nations have fought for increased funding to support Indigenous children and families living on reserve.  

In 2007, two Indigenous-led organizations filed a complaint with the Canadian Human Rights Commission alleging that Canada’s failure to properly fund the delivery of child and family services to First Nations on reserve violated the Canadian Human Rights Act. 

In 2016, the Canadian Human Rights Tribunal found First Nations children and families were denied equal access to child and family services due to Canada’s failure to adequately fund services on reserve.  

Over the next 5 years, the Tribunal issued a series of decisions setting out how affected First Nations children and families would be compensated for Canada’s discriminatory treatment. Canada brought an application for judicial review at Federal Court challenging the Tribunal’s decisions. 

What the Court said  


The Federal Court dismissed Canada’s application and reaffirmed that the federal government must compensate First Nations for its failure to provide adequate funding for the delivery of child and family services on reserve.  

Justice Favel, writing for the Court, went on to reflect on the concept of reconciliation, which he described as part of an ongoing process of “nation-building” based on the foundational, evolving relationship between the Crown and Indigenous Peoples.  

Drawing on both Supreme Court decisions and the words of Pitikwahanapiwin (Chief Poundmaker), Justice Favel concluded that when viewed in the context of nation-building, a shared commitment to reconciliation has the potential to “remedy unprecedented discrimination” and lead to the “re-establishment, on a proper foundation, of broken or damaged relationships between Indigenous people and Canada.”  

Why it is important  


Last summer, the Tk’emlúps te Secwépemc announced they had located the remains of hundreds of children who attended the former Kamloops Indian Residential School. Since then, the unmarked graves of thousands more children have been identified. In the wake of these announcements, the federal government finally acknowledged that Canada’s treatment of Indigenous children amounted to genocide, and established September 30 as a national day to honour survivors of residential schools.  

At the same time, over 50% of children in foster care in Canada today are Indigenous, despite accounting for less than 8% of the child population. In BC, the practice of issuing ‘birth alerts’ – described in the National Inquiry into Missing and Murdered Indigenous Women and Girls as racist, discriminatory and “a gross violation of the rights of the child, the mother, and the community” – remained commonplace until 2019.  

Critically, the Truth and Reconciliation Commission of Canada placed child welfare, including the provision of adequate resources to enable First Nations to keep Indigenous families together in safe, culturally appropriate environments, first among its 94 Calls to Action.  

It is within this context that Canada sought to avoid its obligations to pay compensation for failing to adequately fund the delivery of much-needed services to children and families living on reserves. 

The Federal Court’s decision is an important vindication for First Nations and Indigenous organizations who have spent decades fighting for better funding for health and family services for Indigenous children and families. It also underscores the connection between Canada’s treatment of Indigenous children at residential schools, and the ongoing discrimination that continues to exist in the child welfare system.  

Looking ahead  


Canada as a country is founded on the state’s systematic destruction of Indigenous families and cultures.  

If we are to move beyond this legacy, the federal government must do more than issue apologies and call on the public to honour the memory of children who have been lost. As Tk’emlúps te Secwépemc Kukpi7 (Chief) Rosanne Casimir recently advised the Prime Minister, “we are not interested in apologies that don’t lead to institutional and widespread change.” 

As a first step, Canada must fulfil its legal – and moral – obligations to Indigenous children in Canada today, including by compensating First Nations who have suffered as a result of Canada’s underfunding of Indigenous child and family services, and providing accessible, properly funded services to First Nations on reserve in accordance with the TRC’s Calls to Action. 

At a time when the concept of ‘reconciliation’ has increasingly become hollow, the federal government would also do well to take the recent Federal Court decision to heart. As Justice Favel’s words remind us, reconciliation need not be a matter of empty rhetoric – it can be an important, positive part of rebuilding the flawed foundation on which Canada was established. 

As always, it will be the federal government’s choice whether to continue on its current path or to take new steps to repair both the past and present-day impacts of colonization on Indigenous children and families.  

Canada has 30 days from the date of the Federal Court’s decision to apply for leave to appeal. 


First Peoples Law LLP is a law firm dedicated to defending and advancing the rights of Indigenous Peoples. We work exclusively with Indigenous Peoples to defend their inherent and constitutionally protected title, rights and Treaty rights, uphold their Indigenous laws and governance and ensure economic prosperity for their current and future generations.

Coming soon, again … Law Library Hub

In February 2020, just before the start of the pandemic, we started a drop-in program to provide legal information and assistance to members of the public who were struggling with dealing with the courts. While the pandemic put a quick end to the drop-in idea, the need for legal information assistance didn’t dry up with it.

Since February 2021, the Law Library Hub has been operating on a virtual basis by appointment only. As of October 4, 2021, we are thrilled to announce we will be open again to in person service.

Under the supervision of a practising lawyer, law students will be available to provide assistance in the Great Library at the Winnipeg Courthouse on Monday afternoons between 1:00 p.m. to 4:00 p.m. Appointments can be booked using the form available here.

This program is run in partnership with the Law Society of Manitoba, Manitoba Department of Justice, Pro Bono Students Canada, and others, and funded by a grant from the Manitoba Law Foundation. The goal of the project remains the same: to provide information and assistance to members of the public. Representation without legal counsel is difficult and challenging, particularly when trying to follow the rules and procedures that the legal system requires, and puts extra pressure on judges and parties who are represented. Additional assistance for self-represented litigants is important in order to increase fairness and access to justice.  

As part of the pilot project, data will be collected on the types of problems people are encountering and the number of people the Hub assists.

Law Library Hub on Hiatus

The Law Society of Manitoba is committed to the advancement, promotion, and facilitation of increased access to justice for all Manitobans. The Law Library Hub is a pilot program and the goal of the project is to provide information and assistance to members of the public who are engaged with the Justice system.

The Library Hub began on an in-person basis in February of 2020 with law students from the Legal Help Centre, the Faculty of Law’s Family Externship course, and other student volunteers.

When COVID-19 restrictions came into play, the Library Hub project was put on hiatus. It started back up again in a virtual capacity in February of 2021 with 3 students from the Faculty of Law’s Family Externship course. It continued in this capacity until the end of the school term in April 2021.

We expect that services will resume in the fall once law school students resume their studies.

Gladue Awareness Project: Final Report

I’ve blogged previously about the Gladue Rights Research database out of Saskatchewan.

The Indigenous Law Centre at the University of Saskatchewan has now published Gladue Awareness Project: Final Report, available free via pdf download.

Funded by the Law Foundation of Ontario Access to Justice Fund, this informative report shares knowledge with respect to both the crisis of Indigenous over-incarceration in Saskatchewan and the justice system’s response.

https://indigenouslaw.usask.ca/publications/gladue-awareness-project.php

(H/t Legal Sourcery)

Manitoba Government to create new Family Resolution Service

The government of Manitoba has announced that they will be launching the first phase of a family law service that will ensure services are more accessible and affordable to Manitobans.

The news release posted here lists new features for families that include:

  • early resolution support services delivered by family guides with expertise in domestic violence and safety planning, conflict resolution and mediation, family law and court processes.
  • navigation assistance to other culturally and linguistically appropriate specialized services, which could include a new Child Support Service, Legal Aid, expanded enforcement or other financial, legal or health and social services.
  • self-service tools and a resource inventory that is searchable by region and issue.
  • support to complete any prerequisites for court.
  • allows families to access support electronically.

The notice also mentions changes coming to the The Family Law Modernization Act, which will “expand the role of the Child Support Recalculation Service and give it the authority to make initial child support decisions in a broad range of cases, such as changes in employment, without going to court. “

Manitoba Courts Notice to the Profession

A new notice to the profession has been posted from all three courts detailing further restriction of access to the courthouses. This notice will limit the number of support persons to two per accused or victim.

It also reminds counsel to respect social distancing and maintaining a two meter gap.

To see the whole notice, please click here.