Imminent Release of the First Nations Child Welfare Human Rights Decision

Wednesday, January 20, 2016

Jeff Hewitt *

Charles Dickens originally released A Tale of Two Cities in a weekly journal costing two pence. It was doled out as a serial from April to November 1859. After he himself was subjected to brutal child labour in a factory, Dickens offers unflattering portrayals of aristocrats, illustrating the vast socio-economic gap between the haves and have-nots. There is a strong social justice theme. Sowing and reaping is a reoccurring metaphor.

The novel is a warning.

There is a Canadian story being written right now about First Nations children, which is also about sowing and reaping. It too is a warning and illustrates the vast socio-economic gap between Aboriginal and non-Aboriginal Canadians. In this story, the Canadian Human Rights Tribunal is set to release the next chapter within days.

Until amendments in 2008 to the Canadian Human Rights Act took effect in 2010, Aboriginal Peoples in Canada did not carry the same breadth of human rights all Canadians enjoy. Since 2010, the number of complaints filed by Aboriginal Peoples has risen dramatically. One such complaint, laced with Dickensian woe, is widely viewed as precedent setting. Dr. Cindy Blackstock and the Assembly of First Nations filed a complaint alleging discrimination against Canada for underfunding First Nation child-welfare services for children on-reserves.

The seeds of this story were sown when Aboriginal children were stolen from their families and placed in residential schools in order to be ‘civilized’ – because stealing other peoples’ children is the epitome of civility. Students were denied a family environment to model love and kindness resulting in many Aboriginal families still dealing with the multi-generational effects. The Truth and Reconciliation Commission of Canada’s final report tells us that at residential schools, studies were too often secondary to violence, unpaid labour and brutal living conditions under the rule of a well-resourced state. Sound familiar?

To appease the stirring masses, Canada offered an apology to residential school students in 2008 – apparently the sort where you cross your fingers behind your back so it doesn’t really count. Simultaneously, the state continues to take vast numbers of First Nation children from reserves and place them in an under-funded child welfare program.

And now comes the reaping. Given the evidence of the complaint, the Tribunal should find discrimination. As such, attention should be paid to creating systemic remedies for a systemic problem. There is a lot to be done here that could potentially narrow the socio-economic gap. Consider Aboriginal child welfare laws, such as those presented to the Tribunal by Elder Robert Joseph. Such laws should be accessed in structuring remedies that centrally place Aboriginal Peoples as the solution, not the problem. The Tribunal should advance the federal government’s commitment to renew a nation-to-nation relationship with Aboriginal Peoples by ordering time-sensitive, Kelowna-style roundtable negotiations. These negotiations should include Elders, Aboriginal and non-Aboriginal child-welfare experts, representatives from impacted Aboriginal families and key government decision-makers prepared to commit real resources. The objective would be to create culturally relevant child welfare programs that heal the ongoing hurt and restore healthy Aboriginal families, thereby reducing the flow of Aboriginal children into child welfare in the first instance.

Canada has not been kind to Aboriginal Peoples but this legacy does not have to continue. Indeed, it cannot. Sydney Carton was a cynical lawyer in A Tale of Two Cities, who ultimately overcame his thorny troubles and became a selfless hero. Like Sydney, perhaps the Tribunal may confront Canada’s past of using Canadian law against Aboriginal Peoples by showcasing the potential equalizing power of human rights. In so doing, the Tribunal might transform this story from one of warning to another of Dickens’ themes: redemption.

For today though, we are left to wonder. Will the Tribunal find discrimination? Will the remedies set a strong precedent worthy of Canada’s human rights record? Will the decision be worth two pence? We shall soon see. 

*Jeffery Hewitt is mixed-blood Cree, in-house legal counsel for Rama First Nation and a Visiting Scholar at Osgoode Hall Law School, whose LLM thesis examined remedies in relation to Indigenous Peoples and human rights in Canada.

Designed by Rachel Gold.