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.
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.
Kate Gunn is partner at First Peoples Law LLP. Kate completed her Master's of Law at the University of British Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3, History & the Courts," was published in the UBC Law Review.
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