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.

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)

SCC Historical Visit: Part #2 – The Supreme Court of Canada Blazes a New Trail in Winnipeg

by Alissa Schacter
Equity Officer and Policy Counsel, The Law Society of Manitoba

The country’s highest court exhibited boldness and initiative in its decision to sit outside of Ottawa for the first time in its 145-year history. Winnipeg had the great honour of hosting the nine Supreme Court judges during the last week of September.

The justices took up temporary residence in the Manitoba Court of Appeal. In addition to hearing a criminal and civil appeal, they had a jam packed schedule, which included meeting local high school students and law students, attending a reception with Mayor Bowman, hosting a Q&A event for the public at the Canadian Museum for Human Rights, attending a presentation of sacred eagle feathers to the Manitoba courts, meeting with representatives of First Nations, Métis, and Francophone communities as well as with Executive members of the Law Society and Manitoba Bar Association. Chief Justice Richard Wagner even managed to make time to drop the puck at a Jets game. The justices were the guests of honour at a gala dinner attended by approximately 800 members of Manitoba’s legal profession. They mingled with the crowd in the packed foyer of the Convention Centre and played musical chairs, doing an admirable job of rubbing elbows with as many members of the bar as possible. Throughout the week, there was a palpable excitement in the air within the legal community, as their presence carried an aura of celebrity. Even beyond the legal community, many people took a keen interest and attended the hearings and the public events, which was exactly the point of the Court’s visit.

The Winnipeg visit was part of a broader commitment the Supreme Court has made to access to justice. The court has established an active presence on Twitter and Facebook, and in March 2018, it began posting plain language case summaries on its website. All of these initiatives are intended to help the public better understand the role of the Court and its decisions. As the Supreme Court presides over cases involving some of the most important social policy issues of our time, from same sex marriage and the right to assisted dying to delineating Indigenous rights, it has a hand in shaping Canada’s social fabric. It is imperative that the Canadian public understand the function of the Court so that they have confidence in our justice system. This is critical at a time when people increasingly obtain news and information in easy-to-digest nuggets via diffuse social media platforms, not all of which are reliable.

When the nine esteemed Supreme Court jurists hailing from around the country travelled to Winnipeg and spent the week meeting with a cross section of the legal and broader communities, they revealed their personalities, their senses of humour, their genuine curiosity about the local community and of course, their humanity. They put a human face on the Supreme Court and sent a powerful message that the Court wants to understand the people it serves and make itself more transparent and accessible to them. It also demonstrated the Court’s awareness of its need to adapt to the changing context in which it operates and to modernize its approach.

As in most endeavours, you create trust by fostering greater mutual understanding and building relationships. That is exactly what the nine judges did during their time in Winnipeg. Canada’s Supreme Court has long been venerated around the world. When the Court left its grand building on Wellington Street to head west to the Prairies, it also increased its profile and esteem among Canadians.

SCC Historical Visit: Part #1 – Manitoba Courts Adopt Indigenous Tradition in a Week of Memorable “Firsts”

by Alissa Schacter
Equity Officer and Policy Counsel, The Law Society of Manitoba

The last week of September marked a couple of notable “firsts” for Manitoba’s legal community. The Supreme Court of Canada sat in Winnipeg, marking the first time it has ever sat outside of Ottawa in its 145 year history. In another milestone, Manitobans can now testify in court by holding an eagle feather to signify the truthfulness of their testimony rather than swearing on a Bible or affirming their promise to tell the truth.

On September 26, forty-five eagle feathers were blessed in a sunrise smudging ceremony at Oodena Circle at the Forks and then presented to a joint sitting of the Manitoba Court of Queen’s Bench and Provincial Court in the afternoon. The afternoon ceremony was attended by Indigenous elders, the Supreme Court judges and numerous judges from Manitoba’s Court of Appeal, Court of Queen’s Bench, and Provincial Court, Masters and Judicial Justices of the Peace, as well as members of the RCMP. Some of the attendees danced in their seats to the powerful sounds of Indigenous drumming and singing, which lent the court proceeding a ceremonial air. Elder Ed Azure shared a teaching about the significance of the eagle feather in Indigenous culture: since eagles are able to fly to great heights, close to the heavens, they are regarded as a “messenger from our maker” and their feathers represent honour, achievement, bravery, truth, clarity and service to others. Chief Justice Glenn Joyal and Chief Judge Margaret Wiebe both addressed the court and talked about this (incorporating the eagle feather into court proceedings) as one step on the court’s journey toward reconciliation.

Following the ceremony, the Law Society sponsored a reception in the Great Library and a tribute was made to a special guest in attendance, Marion (Ironquill) Meadmore, the first Indigenous woman to graduate from law school in Canada. She graduated from the University of Manitoba’s Faculty of Law in 1977.

It was a moving ceremony that marked the ground breaking step of incorporating an Indigenous tradition into Manitoba’s justice system.