Human rights

As an attorney who has helped fight for the rights of First Nations children, here’s what you need to know about the $ 40 billion child protection agreements

The Government of Canada announced this week that it reached tentative agreements to compensate First Nations victims of its discriminatory child welfare system and to fund long-term reform of Child and Family Services. First Nations family and Jordan’s Principle – a legal rule to ensure equitable access to public services for First Nations children.

The tentative agreements were reached after nearly two months of negotiations between the First Nations Child and Family Caring Society, the Assembly of First Nations, the Chiefs of Ontario, the Nishnawbe Aski Nation and the lawyers in two class actions – Xavier Moushoom and Zach Truite.

As a researcher in public interest and human rights litigation, and one of the lawyers who represented the First Nations Child and Family Caring Society in its human rights case – which led to a historic victory in 2016 before the Canadian Human Rights Tribunal and affirmed the right to equality for over 165,000 First Nations children – here’s what you need to know about the agreements.

What is in the agreements?

The agreements represent a commitment by the parties concerned to work together to agree on the details of compensation for First Nations children and their guardians who have been harmed by Canada’s discriminatory conduct. They also include a commitment to develop and put in place long-term reforms to end current racial discrimination.

An agreement provides $ 20 billion in compensation for First Nations children living on reserve and in the Yukon who were removed from their homes by child and family service agencies between April 1, 1991 and April 1, 1991. March 31, 2022.

It includes compensation for those who were affected by the government’s narrow definition of Jordan’s Principle between December 12, 2007 and November 2, 2017, and for children who did not receive or were delayed from receiving a service or an essential public product between April 1. 1991 and 11 December 2007.

The other accord includes roughly $ 20 billion for long-term reform of the First Nations Child and Family Services Program. These reforms include additional resources to develop and implement prevention initiatives that will help children and families stay together, and could be implemented as early as April this year.

Legal basis for agreements in principle

Compensation and Long-Term Agreement Reform Aimed at Responding to Landmark Canadian Human Rights Tribunal (CHRT) Ruling Finding Canada Racially Discriminates First Nations Children and their families because of their race, and / or national origin, unlike Sec. 5 of the Canadian Human Rights Act (CHRA).

In particular, the CHRT found that the funding and delivery of social assistance services in Canada encouraged children to be placed in public care and perpetuated the disadvantages historically suffered by First Nations peoples in Canada.

The CHRT also found that Canada applied Jordan’s Principle too narrowly and in a way that resulted in First Nations children being denied equitable public services. Surprisingly, Canada chose not to comply with the legally binding ruling and the tribunal had to issue more than a dozen non-compliance orders detailing the specific actions the government must take to reduce the adverse effects of the discrimination against First Nations children and their families. .

In one of the non-compliance orders, the CHRT described Canada’s discrimination against First Nations children as the “worst case scenario” under the CHRA and found its conduct to be willful and reckless.

The Federal Court of Canada ruled in favor of the CHRT and found its conclusions reasonable. By rejecting Canada’s judicial reviews, the Federal Court also urged Canada to act now to redress this unprecedented discrimination in order to repair its damaged relationship with Canada’s Indigenous peoples.

Cindy Blackstock, Executive Director of the First Nations Child and Family Caring Society, attends the National Day of Action on First Nations Child Welfare on Parliament Hill in Ottawa on November 2, 2017.
THE CANADIAN PRESS / Sean Kilpatrick

Why long-term compensation and reform are important

While no amount of money can repair the harm suffered by First Nations children as a result of discrimination in Canada, compensation is an essential element in recognizing the human rights violations they have suffered.

As the United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition has pointed out, compensation enables “victims to gain the trust of the State, ‘to be recognized as holders of rights and, potentially, to be empowered ”.

Compensation is also important to the Government of Canada – the offender – because it demonstrates that it understands that its conduct was reprehensible. Compensation helps promote accountability.

Most importantly, long-term reform of child welfare services for First Nations children and the implementation of Jordan’s Principle are necessary to end the current discrimination in Canada.

As Marie Wilson (one of the three commissioners of the Truth and Reconciliation Commission of Canada) said during litigation, the harms suffered by children today when they are removed from their families, their home and community are comparable to the experience of those who attended residential schools.

All of this is necessary to ensure that no other generation of First Nations children will be harmed by Canada’s discriminatory conduct.

What still needs to be done?

As Cindy Blackstock, Executive Director of the First Nations Child and Family Caring Society has pointed out, the agreements are currently non-binding and important discussions are yet to take place in 2022. Success must be measured by actual impact. on the life of the First Nations. children.

Although the agreements were reached in response to a 15-year legal battle against Canada, these legal victories would not have been possible without the support of Canadians. After the graves of children who died in residential schools were discovered, countless Canadians stood in solidarity with Indigenous communities and called on the government not to repeat the mistakes of the past.

This year, public support will be needed more than ever to ensure that the spirit of the agreement is respected and translated into meaningful change for First Nations children. As one survivor of Canada’s discriminatory child welfare system said, there will be a brighter future for First Nations children if the injustices they have suffered are no longer ignored and their stories heard.