by Kylie de Chastelain

On October 28, 2019, the Indigenous Initiatives Office at the Faculty of Law hosted lawyers Maggie Wente and Sinead Charbonneau from Olthius Kleer Townshend LLP for a presentation entitled: First Nations Child Welfare Practice Post-Caring Society. Wente and Charbonneau provide legal representation and support to First Nations governments and communities as they navigate heavily bureaucratic, complex child welfare systems across Canada. Their presentation focused on the numerous challenges and opportunities for change that they have observed.

In 2016, the Canadian Human Rights Tribunal handed down what is colloquially known as the “Caring Society” decision. The Caring Society case was a complaint brought by Cindy Blackstock of the First Nations Child and Family Caring Society and the Assembly of First Nations (“AFN”) which alleged that the Canadian government was discriminating against First Nations children on reserves by allocating substandard and inequitable funding for child welfare services there. The Human Rights Tribunal held that discrimination was occurring through inadequate funding and also through a failure to provide culturally appropriate services. Further, the Tribunal held that Canada had not properly implemented Jordan’s Principle and ordered the Canadian government to rectify this.

Charbonneau provided an impassioned explanation of Jordan’s Principle, which is named for Jordan River Anderson; a child from Norway House, Cree Nation in Manitoba. Jordan was born with complex needs which required constant hospitalization and was transported away from his community to Winnipeg to receive treatment. When it was established that Jordan would not live very long, doctors recommended that he be transported back to his community with palliative medical supports. A long fight ensued between the federal and provincial government, with the federal government claiming that the province should cover Jordan’s costs as a healthcare matter, and the provincial government refusing to do so because Indigenous affairs are under federal jurisdiction. The matter was never resolved and Jordan died in hospital, never having returned home. Jordan’s Principle was developed by First Nations and the Caring Society in response to the discrimination and inadequate care Jordan experienced.

According to Charbonneau, Jordan’s Principle calls for substantive equality for First Nations children; not simply treating all children “the same,” but recognizing that First Nations children require additional supports and services in order to reach the same footing as non-Indigenous children. In the context of child welfare, the need for substantive equality is great. First Nations children come from a long colonial history of forced removal, racism, and abuse at the hands of the Canadian government. Today, when child welfare services interface with First Nations communities, this colonial legacy – and enduring discrimination – complicates efforts to assist families and children. As Wente and Charbonneau described, part of the problem is that the landscape is heavily bureaucratic. In addition to federal frameworks, there are First Nations child welfare services and provincial child welfare services that overlap and disagree about what will best serve Indigenous children. Moreover, First Nations organizations are often poorly funded, which makes it difficult for them to exercise jurisdiction even when they have it.

Wente explained that often, the only way for First Nations children to access services is to for them to become wards of the state. Wente has worked with several Innu communities in Newfoundland and Labrador that have been forced to put their children into care for this reason. In one case, Wente described, the mother of a suicidal child put him into care so that he could be hospitalized and access the mental health services he urgently required. However, the mother was not fluent in English, and when a representative from Newfoundland’s Department of Children, Seniors and Social Development came to complete the paperwork, they had the mother unknowingly sign documentation that stated the child was no longer safe in the home and needed protection. Presently, the child is eager to return home, but because the mother electively signed paperwork admitting him into care, it will be incredibly difficult to return him to his family. According to Wente, cases like these are far from rare, and they pose huge obstacles for First Nations communities.

Ultimately, Wente and Charbonneau shared a brief glimpse into what it means to work for reconciliation and equality within an enduringly-colonial and bureaucratic system. Above all, it is clear that Canada must make tremendous improvements where First Nations children and child services are concerned.  In this regard, it remains to be seen to what extent the recently passed bill An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, which was co-developed with Indigenous partners and affirms Indigenous peoples’ right to jurisdiction over child and family services, will make a consequential difference in the lives of First Nations children in the future.

Kylie de Chastelain is a 1L JD student at the Faculty of Law and is the current Asper Centre work-study student.

RESOURCES:

Find links to the Canadian Human Rights Tribunal decisions in the Caring Society case below and an Information Sheet on the Canadian Human Rights Tribunal Decisions on First Nations Child Welfare and Jordan’s Principle by the Caring Society.

2016 CHRT 2, 2016 CHRT 10, 2016 CHRT 16, 2017 CHRT 14, 2018 CHRT 4

Bill C92 – An Act Respecting First Nations, Inuit and Métis Children, Youth and Families