Front Burner - Liberals fight payments ordered for First Nations children
Episode Date: November 28, 2019This week, the Liberal government was in a federal court, as part of its fight against an order to compensate First Nations children affected by the on-reserve child welfare system. The order is part ...of a Canada Human Rights Tribunal ruling that took nearly a decade to achieve. The government says the order is an unfair over-reach, and that it plans to deliver payment through a class-action lawsuit instead. Today on Front Burner, CBC Indigenous unit's Jorge Barrera on the long backstory to this week's court hearings, and the discrimination First Nations children face on-reserve.
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Hello, I'm Jamie Poisson.
Thirteen years ago now, a First Nations advocate named Cindy Blackstock took on the federal government.
She lodged a complaint with Canada's Human Rights Tribunal over discrimination against First Nations kids,
in particular through the on-reserve child welfare system.
One of the documents that really just struck to my heart was a spreadsheet,
and it counts the number of nights that First Nations children have spent away from their families between 1989 and 2012.
And think about it, that's the way your kids think about these things.
It's not kind of percentages, it's how many sleeps till I see my mom.
And it's over 66 million nights.
187,000 years of childhood.
It was a long fight.
The Harper government spent millions trying to get the case thrown out.
They were even found to have spied on her,
monitoring her Facebook page and speaking events.
Despite the government's efforts, in 2016,
the tribunal ruled in her favor. And as of today, they've been ordered to pay $40,000 to each First Nations child affected by the on-reserve child welfare system since 2006. But still, the battle
continues. This week, the Trudeau government went before a court as part of their effort to not pay the compensation that's been ordered by the tribunal.
Today, Jorge Barrera of the CBC's Indigenous Unit walks us through the discrimination suffered by these children and the long legal and political battle that's ensued.
This is Frontburner.
Jorge, hello.
Hello. Thanks for having me.
Thank you so much for coming back on the podcast.
So what was the case that Cindy Blackstock presented to the Canadian Human Rights Tribunal
way back almost 13 years ago now about discrimination against First Nations children?
What did she claim?
ago now about discrimination against First Nations children. What did she claim?
All right, so back in 2007, Blackstock filed her initial human rights complaint,
and she was backed by the Assembly of First Nations at the time.
National Chief Phil Fontaine says he's putting the government on notice for what he calls systemic discrimination. Fontaine says the root of the problem lies with Ottawa giving
less money to groups taking care of Native children. And, you know, the complaint was actually based on internal reports
from the government that acknowledge that it knew that it was underfunding child welfare services
on reserves. They were capping funding. There was this thing called a perverse incentive that the
department was using at the time where you got money per apprehension. So the more children that
you apprehended, the more money you got. But there was very little that was being put in for
prevention, for example. And many of these apprehensions were based on poverty
because of the other issues around, you know,
communities where there's lack of proper water,
lack of proper housing, lack of proper infrastructure.
So not like abuse, physical or emotional or sexual abuse,
but living conditions.
Yes, and, you know, the government's own internal documents actually showed at the time that it knew that it's underfunding was actually contributing to the rise in the number of kids who were being put into the on reserve child welfare system.
That's incredible to think that that's how the system was working.
I want to get to whether or not it's changed with you in a moment. But I know it took almost 10 years.
The Harper government fought hard to have Cindy Blackstock's case thrown out.
But in 2016, the tribunal agreed with her.
So before we move on, can you give me a sense of what that discrimination that we just talked about
against First Nation children actually looked like? Well, I think there's one case that
manages to encapsulate many of the elements that are part of this. And it's the case of a young
girl named Kanina Sue Turtle from Poplar Hill First Nation. And her story was told in depth by Aboriginal People's Television Network's reporter, Kenneth Jackson.
Kanina died by suicide on October 29, 2016.
And while she was being cared for in a Sioux Lookout foster home run by Tickenagin Child and Family Services from Northern Ontario.
They're a First Nations child welfare agency. She was only 15 and she filmed
her death on her iPod. This is a girl that had tried to die by suicide day
before and had self-harm leading up to it so there was there was concern for
her safety or there should have been. And based on APTN's reporting, you know, the primary factors around her apprehension were because of poverty.
And Kanina actually had asked the agency to review her placement before her death,
but nothing really came of it.
And she's not alone.
You know, children have died in in care children have died away from their
families and this is at the heart of you know this discrimination case because when you look at
the finding that you know the 2016 finding that Ottawa did discriminate against First Nations
children by underfunding child welfare services. That discrimination actually happens, it's rooted in the moment that a child
is taken away from their parents. So it's at that place where the discrimination has very
real consequences on the lives of children. And as you know, we heard from Black Sox quote,
you can count the impact on that in sleeps away from parents. Right. And we know, you know, the statistics show that First Nation children are six to eight times
more likely to be taken into child welfare care than non-First Nation children. Am I right there?
Yeah. You know, these statistics show in a number that's, or a framing of this that's often heard is that there have been more Indigenous children put into care than there were Indigenous children in residential schools at the height of the operations of that system.
Wow.
So we're talking about really big numbers and not only numbers, but numbers that have ramifications years down the line.
And, you know, you mentioned that some children have died after being taken away from their families.
I know an APTN investigation found 72 Indigenous children connected to child welfare died in northern Ontario,
where three Indigenous agencies covering most of the territory were underfunded approximately $400 million between 2013 and 2017. So these numbers,
you know, they're very real and also fairly recent. Yeah, this has been called a humanitarian
crisis by none other than the former Minister of Indigenous Services and that
was Jane Philpott. She turned at that and there's many people who agree with that.
This is very much reminiscent of residential school systems where
children are being scooped up
from their homes, taken away from their families, and we will pay the price for this for generations
to come. So in 2016, this tribunal rules, yes, this discrimination exists.
And what do they order the federal government to do?
Well, they essentially ordered an immediate overhaul of the child welfare system.
They ordered that funding must be increased.
Funding also must actually meet the real costs of the agencies that are administering these services.
And that funding should be increased on preventive services.
And there's another aspect to this ruling that's also important, that it's around Jordan's principle.
Jordan's principle is basically a policy that says that the interests of a First Nations child must come ahead
of jurisdictional disputes when it comes to who should pay a particular public service.
Right.
And we've seen most of this around health care.
And the tribunal also ordered Canada to start following Jordan's principle.
Because there were many cases, and am I right about this,
of children who were also being taken away from their families
because they couldn't access proper health care. Yes that's right and that's that's part of the
ruling yeah children had to be removed from their homes to actually get the health care they needed
or they ended up not getting the health care at all because they stayed home. At just 14 Joni
Wilson's son Aiden has had a lifetime of health problems. For them to be able to help me I would
have to give up my son and put him in care,
and that absolutely wasn't something that I was willing to do.
And so, you know, after the federal government is ordered to overhaul the system, like, what do they do?
So according to evidence that the government has so far filed in federal court as part of the compensation case,
they say that they have doubled their budgeted funding
for child and family services from $681 million to $1.2 billion between 2015 and 2019.
And Canada says that it started in 2017. They have invested $1.4 billion and that would flow
over the next six years targeting agencies and prevented services. And on the Jordan's principle front,
Canada now says that it has now approved 350,000 requests under Jordan's principle,
plus it's committed $2 billion for Jordan's principle. But while all this was happening,
Canada was facing about seven non-compliance orders from the tribunal, which basically was
the tribunal saying, hey, Canada, you got to fix this part of the order that we wanted you to implement. You got to do this.
So Canada kept on facing these nudges. They're not moving fast enough. They're not getting this done.
And then this latest order was to pay, was for compensation, right? And what did this latest
order that came down in September say? Okay, so so the compensation order when the 2016 ruling came
down the tribunal said it was reserving uh its decision on on compensation to give the parties
time to to discuss this right so on september 6th they issued their compensation order ordering
canada to compensate you know first nations children who've been taken away from their
homes and communities through the unreserved child welfare system, $40,000, which is the
maximum allowable under the Canada Human Rights Act.
And he also ordered that same amount for the parents or grandparents, depending who was
the main guardian, of children who were unnecessarily apprehended.
So any guardian parent or grandparent whose child was taken because of abuse would not be eligible.
They also had $40,000 for the children and the parents of those who either were not given health services
or services under Jordan's principle or had to remove from their homes from that.
So that was basically the three parts of this. Okay. And I know that in the middle of
the election, the government, the Trudeau government applied for a judicial review.
They also said that this would cost $8 billion to pay all of this money. We agree with the
tribunal's finding that there must be compensation for those who were harmed.
But the question is how to do that.
We need to have conversations with partners.
We need conversations with communities, with leaders, to make sure we're getting that compensation right.
And so tell me about that.
So yes, in early October, the Attorney General filed basically a two-part legal strategy.
They filed for a judicial review that aimed to completely torpedo the order.
They also filed a motion to stay the order, meaning that they wouldn't have to comply with it.
That stay order is what was at issue on Monday and Tuesday this week before the federal court.
Okay, and it feels like this week they're now fighting against paying out this compensation.
They were ordered to pay. They've been criticized by First Nations leaders, by the NDP, by the
Greens, by Amnesty International for this move. And like, what is their reasoning for arguing
against it? Yeah. So their arguments were aimed at, yeah, undermining the order. Their main
argument is that, you know, this order is so wrong in law that it actually requires us to go before you to challenge it. And they're saying that, you know, the ruling,
the 2016 ruling and the 2007 complaint were really about systemic racism, a systemic issue,
and that this required a systemic fix, which is what the government lawyers claim has already
begun to be implemented with those numbers that I fired off earlier. Right, that they've like doubled the amount of money that they're putting into the
system. And they also say that the tribunal order actually ventures into the realm of class action
law, that they're actually overstepping their own boundaries that were set under the Canadian
Human Rights Act, that they're overreaching and sort of ordering compensation for potentially
tens of thousands of people. And they also argued that this compensation is fundamentally unfair
because it's giving the same amount to everybody
and it doesn't take away individual circumstances.
And I want to quote from one of the filings from the government
sort of that crystallizes this specific argument.
Quote, a First Nations child on reserve who suffered domestic abuse,
was necessarily removed and spent two days in care would receive the same compensation as a first nation's child who was not
at risk was unnecessarily removed from their home and spent two years in care okay so they're saying
this is overly broad is that what they're saying well yeah they're saying that it's unfair is like
how can you give everybody the same if everybody's circumstances are different and they actually say that this order actually gets in the way of the government
actually properly compensating all these children that it's it's a barrier that it's so problematic
that it could create all sorts of problems that weren't really spelled out well do they have a
point you know i know this week uh the government saying, look, we don't want to pay through this human rights tribunal, but there is a class action lawsuit, and we are willing to settle that class action lawsuit.
a way that we can actually capture the group of affected people that we're discriminated against,
and it goes all the way back to 1991, which is why we moved to certify the class and move forward with discussions with a view to a more comprehensive and global settlement. So do they have a point?
Well, I guess the federal court, Justice Fable, will decide whether they have a point or not.
I mean, all I can say on that is it doesn't appear that if you are covered by this compensation order, say it goes through and you're covered by it, it doesn't appear that you're going to be excluded from any class action settlement, that you could actually be covered by both.
One doesn't exclude the other. They're completely separate processes under separate laws. This class action lawsuit that you know was filed in March
it was filed on behalf of an Algonquin man initially he was as the named as a
lead plaintiff a young man named Xavier Mouchum who from Lac-Simon and Anishinaabe
nation in Quebec who was shuffled through 14 foster homes between the ages
of 9 and 18 and Oh, it's awful.
And it's seeking about $6 billion.
And it's based largely on the 2016 tribunal ruling that found that there was systemic discrimination.
So it's connected, but it's under completely different structures.
So the federal government sees class actions
as a comfortable space for them to deal with this.
The Trudeau government has settled two major ones, the 60s Scoop and the Indian Day Schools.
So they know how to do this.
They also have the Indian Residential School Agreement from 2006-2007 when it was settled.
So they are comfortable with this avenue.
I can't help but think about what Cindy Blackstock said about all of this,
which is that she believes that the government
is trying to shop courts to get the best deal here.
So it feels like they're kind of just trying to find a place
that agrees with them.
It's about accepting responsibility as adults towards children
and doing the right thing.
I don't know if we'll ever actually get access
to the legal advice that ministers are getting on this, they see class action avenues as more beneficial,
maybe more efficient.
Maybe they're concerned about the type of precedence
that this would set.
Right, I've heard the precedent argument
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I also wonder for First Nation advocates fighting the government for compensation here,
if there's like a symbolic resonance on top of all of this.
It seems like every step of the way here, there's been a bit of a fight.
At the time of the 2016 ruling, Cindy Blackstock lamented that, you know, why did this even have to be a fight in the first place?
Why did we have to bring the government of Canada to court to get them to treat First Nations children fairly?
Little kids. Why would it ever be okay to give a to treat First Nations children fairly. Little kids.
Why would it ever be okay to give a child less than other children? Do you think that that's affected the conversation around the issue?
Yeah, you have to pull back the lens a little bit
and look at the history of the federal government,
particularly the Department of Indian Affairs,
in its various iterations, Aboriginal Affairs.
Now it's split into two Indigenous services, Canada and Crown Indigenous Relations.
But historically, you know, the department has developed and executed really damaging policies against First Nations children.
You know, residential schools.
That was the Department of Indian Affairs that was in charge of Indian residential schools,
you know, that existed for over a century.
And the deep trauma that happened, you know, as a result of those institutions.
Then, you know, residential schools start being phased out.
And then you have 60 Scoop, where children were just taken from their communities and fostered out all over the country and all over the world.
And now you have the child welfare system that, you know, the government's own internal reports showed that they knew that their underfunding was adding to an increase of children.
So in all these cases, it's about kids and it's about kids and
their connections to their families and it's about government policies that have broken up families
and when you break up families you weaken communities and you weaken nations and you
and you actually you create deep trauma that lasts from generation after generation after generation and it becomes
a cycle that feeds in on itself it's a cycle yeah that cannot be fixed you know overnight
but the fact that federal policy over the years has continued to target and this is from the
position of first nations communities first this is from the position of First Nations communities,
First Nations advocates, target the breakup of families, that the policies have never
aimed to do what they could to keep those families in place. And that was a big part of that 2016
ruling. And that's why the federal government is, you know, is trumpeting the fact that they are
funding so much into preventive services.
And in their compensation order, the tribunal said that the government put the financial interests of itself ahead of the human rights of children, which is a pretty serious accusation
to make.
And that's why they concluded that this was done willfully and recklessly and
that's why these children deserved the maximum compensation and so is it fair for me to say
that this is part of the reason why they don't want to just settle in another court here
yeah this this human rights case has a lot of symbolic weight this is the result of this unbending tenacity
to push this through you know through numerous legal obstacles numerous attempts by the governor
of canada to have this thing thrown out and now where you know compensation for damages is part of many human rights tribunal rulings where there
was a wrong inflicted this is part of the ruling and now at the end the federal government is
trying to say you know what we don't want to settle in this framework we're going to keep
fighting it but we want to do it in another way so yeah their, symbolism is important here, but it's also important that there is a case,
it has its parameters, compensation was ordered in those parameters, and that compensation is
being fought in those parameters. Okay. And that fight will still continue on the tribunal front
and the class action lawsuit will continue to go ahead as well.
the class action lawsuit will continue to go ahead as well.
Yes. So now we wait on Federal Justice Fable's ruling,
and he said he would be issuing it in short order on the motion to stay.
Okay.
There was also another motion by the First Nations Child and Family Caring Society that was arguing to actually put the whole judicial review process in a freezer
until the Human Rights Tribunal decided on how the companies a mechanism
for how the compensation should be paid out they argued that how can you say that this is a bad
process or this is a bad order if you actually don't know how it's going to work so the justice
is going to rule on those and then after that there's the hearings and ruling on the actual
judicial review uh application itself which could determine, you know,
the very life of this tribunal order.
Okay. And Jorge, I hope you come back on
and you can fill us in when those developments happen.
Thank you so much.
Thank you for having me.
One more thing before we go today.
Remember Senator Lynn Bayak?
We did an episode on her a while ago, back when she was suspended from the Senate.
It was over these letters she'd posted on her website that were widely considered racist against Indigenous people.
Well, she's back in the upper chamber on full payroll.
For now, at least.
Her suspension ended with the last dissolution of Parliament,
but her fellow senators are expected to debate suspending her again.
That's it for today. I'm Jamie Poisson. Thanks so much for listening and see you all tomorrow.