Towards Equality for Indigenous Children

Sunday, February 7, 2016

Towards Equality for Indigenous Children

Jeffery Hewitt*

Heroes come in many forms. Sometimes the hero is a small boy with a lightening scar on his forehead who defeats a dark lord. Other times he is a strongman with an ‘S’ on his chest or maybe a young shepherd fighting a giant with only a slingshot. But sometimes a hero comes in the form of a confident, bespectacled Indigenous woman.

In 2007 Dr. Cindy Blackstock, for the First Nation Child and Family Caring Society along with the Assembly of First Nations, filed a human rights complaint alleging discrimination by the federal government against First Nation children on-reserves in relation to the delivery of child welfare programs. These are vulnerable Indigenous children taken away from their families. Dr. Blackstock stepped in front and called Canada out. Canada’s response was predictable. Denial. And why not? At the 2009 G20 in Pittsburgh, former Prime Minister Harper stated, “Canada has no history of colonialism.”

Denial is a deeply embedded theme in our history. Fortunately, the Canadian Human Rights Tribunal is not populated with deniers and yesterday found the federal government has discriminated against First Nation children, as alleged in this complaint. The needs of Indigenous children have not been met as a result of underfunded and inadequate child welfare services.

Canada has a long-standing practice of taking Indigenous children away from their families. In 1883, Sir John A. MacDonald infamously quipped that so long as an Indigenous child lives with his parents “he is simply a savage who can read and write.” Canada created the Indian Residential School system that oversaw the state-sponsored removal of tens of thousands of Indigenous children from their families – as though taking other peoples’ children is a hallmark of civility. Some deny any responsibility by reassuring themselves that Residential Schools are a thing of the past. Why should anyone today be responsible?

Aside from decency, recall the last Residential School closed in 1996. I teach first year law students at Osgoode Hall Law School, a number of whom were born in the 1990s. They could have a peer among them who attended Residential School. This is not history. It is ongoing. Moreover, when you are removed from your family and raised by a violent institution, starting a healthy family of your own is almost impossible, meaning the damage and intergenerational trauma is ongoing, complicated and growing. Indeed, there are more First Nation children in care now than there were at the height of Residential Schools – notwithstanding a 2008 apology from former Prime Minister that this would never happen again. It is happening. Right now.

The Tribunal acknowledges the complicated mess we are in by seeking further input from the Caring Society and the Assembly of First Nation on remedies. Will the Tribunal order remedies aimed at eradicating discrimination against First Nation children? Will it monitor their implementation to ensure progress towards substantive equality? Based on their ruling, it seems so. But is Canada ready to stop denying? The federal government’s initial agreement with the decision is a positive indicator. Yet the litmus test is in the doing, not the talking. The government’s response requires commitment and will set the tone of its relationship with Indigenous Peoples for a long time to come. The ruling has implications not only for Indigenous child welfare; a host of similar allegations of discriminatory service provision in reserve communities, relating to issues such as education, housing and access to safe drinking water, were held in abeyance by the Canadian Human Rights Commission pending the outcome of this case.

As for individual Canadians who might wonder how they may positively contribute, calling out deniers is a good start. This requires the acknowledgment that we are all responsible and can no longer in good conscience leave the burden of Canada’s discrimination to be carried on the backs of Indigenous children. We should anticipate remedies from the Tribunal that are constructed like their decision: unprecedented. The Tribunal needs to set concrete goals, establish inclusive procedures, and monitor progress towards equality.

My father was one of the Indigenous children placed in foster care as an infant in the 1940s. Amazingly, he did not pass his hurt onto my brother and me. So, it seems we don’t need to attend a school for wizards. We don’t need a flying man in a cape to save us. We don’t need to be capable of felling giants with a single stone. What we need to do is to follow Dr. Blackstock’s lead and my father’s. Let’s be brave. Together.



* General Counsel, Rama First Nation; Visiting Professor, Osgoode Hall Law School.
Designed by Rachel Gold.