A recent decision by the Canadian Human Rights Tribunal (CHRT) has ordered that the Canadian government must pay $40,000 to each child who was removed from their on-reserve home, for any reason, after January 1, 2006. In some cases, parents and/or grandparents of children will also be compensated.

The Terms of the Order

The CHRT has ordered that the government work with the First Nations Family Caring Society and the Assembly of First Nations in order to assess potential candidates for compensation and develop a distribution proposal. The deadline for the proposal is December 10th of this year. At this point, it is anticipated that as many as 50,000 children may qualify for compensation, the largest population of which residing in Canada’s western provinces. Further parents and grandparents (if they were the primary caregiver) are to receive $20,000 for each child that was taken from their home without sufficient reason. Total compensation is expected to reach into the billions.

The Order stated:

“Canada’s conduct was devoid of caution with little to no regard to the consequences,” said the order. 

“Canada was aware of the discrimination and of some of its serious consequences … Canada focused on financial considerations rather than on the best interests of First Nations children and respecting their human rights.”

A History of Mistreatment

This Order stems from a 2016 decision which found that the Canadian government had been systematically discriminating against First Nations children in care by consistently under-funding the related programs. Advocates have pointed out that the government’s behaviour in this regard demonstrates that little has been learned from previously-acknowledged wrongdoings against First Nations children, such as the tragic fallout of Canada’s residential schools and the Sixties Scoop eras.

Cindy Blackstock, of the First Nations Family and Child Caring Society, condemned the government for its ongoing inaction and lack of progress, despite its admission to certain failings when it comes to serving Canada’s First Nations children:

“They knew better and did not do better resulting in tragedy for First Nations children, families and [First] Nations…[w]e must demand Canada stop its piecemeal approach to remedying cross cutting inequalities in First Nations public services[.]” 

The fallout stems from several issues, including children who were taken from their homes without sufficient reason, and children who were separated from their community and culture and placed with caretakers who could not provide them with the necessary cultural connections. It has been shown repeatedly that removing First Nations children from their community places them under severe distress. It creates lasting effects that negatively impact individuals well into adulthood, not to mention the impact on families and Nations whose children are taken from them.

After the Order was issued, Canada’s Indigenous Services Minister released a statement acknowledging the importance of focusing on the best interests of the child:

“We want to ensure that, first and foremost, we continue to place the best interests of the child at the forefront…[o]ur government is committed to seeing the unmet and long-standing needs of First Nations, Inuit and Métis children met.”

Looking Ahead

It remains to be seen what sort of impact this decision will have on the child welfare system as it pertains to Canada’s First Nation children and families. One will hope that the sweeping scale fo the compensation ordered and the ongoing outcry over Canada’s lack of funding for our Indigenous communities will have the effect of bringing much-needed change to the system. One can’t help but agree with Cindy Blackstock’s assessment of the current system as “piecemeal”. Compensation is a start, but the real solution ultimately lies in massive systemic overhauls, and a proactive, rather than a reactive, approach.

The family law lawyers at Mincher Koeman regularly work with First Nations on child protection matters. We are passionate advocates of the rights of First Nation children to maintain cultural and community connections throughout the child welfare process. We understand how the system works, and we know how to effectively challenge or advocate at each stage. If your family has become by the child intervention process, or you are seeking guardianship of a child who is the subject of an intervention, please contact our office to discuss your options by calling us at 403-910-3000 or by contacting us online.

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