Why COVID-19 offers a free pass to delay reform of the Canadian indigenous child welfare system
Illustration Credit: Gabriella Nero.

On the 16th of March 2020, Prime Minister Trudeau announced that Canada would go into lockdown, with a state of emergency in several provinces following the day after. Social isolation, similar to the rest of the world, was possible for many Canadians with adequate living conditions. However, this was not the case for the indigenous communities in Canada. Human Rights Watch has reported that common measures against the virus do not hold up in indigenous communities. “First Nations communities lack access to clean water and inadequate funding for on-reserve housing has led to severe overcrowding, making social distancing difficult.” It is unsurprising that indigenous communities are suffering under COVID-19 measures in Canada. It conforms to a history of maltreatment. 

It is no secret that indigneous people have been oppressed in North America since the continent has been colonised. However, what is often overlooked, is the plight of indigenous children in Canada. A plight which has been present since before it was created as a country in 1867. From the middle of the 19th century and throughout the 20th, indigenous children in Canada were forced to go to residential schools, or boarding schools, run by Canadian churches and overseen by the Federal Government since 1883. The project’s aim was to “remove the Indian from the child“.

As the policy became widespread across the country, the goal of the residential schools morphed into cultural genocide. “The destruction of those structures and practices that allow the group to continue as a group.”[1] It is estimated by the government that “at least 150,000 First Nation, Métis, and Inuit students passed through the system”[2]. This practise was continued until the 1990s, when the last schools closed. 

The Canadian Truth and Reconciliation Commission has published several reports on the history of the schools, the process of repair afterwards and the effort of reconciliation[3] that the Canadian government still needs to make towards Canada’s indigenous communities. These reports also include survivors’ experiences of the schools. 

The Canadian government has apologised for these horrendous practices in 2008. Nevertheless, its child welfare system for indigenous children seems to have taken up the legacy of Canada’s residential schools. Over-representation of indigenous children in the child welfare system possesses discriminatory policies. These policies can be considered similar to the ones in the residential school era. 

Cindy Blackstock, the Executive Director of the Caring Society, states in The Complainant: The Canadian Human Rights Case on First Nations Child Welfare that “INAC [Crown-Indigenous Relations and Northern Development Canada] data showed that, between 1995 and 2001, the number of First Nations children placed in child welfare care on reserve increased by a staggering 71.5 per cent.”[4]

Over-representation of indigenous children in the welfare system is partially caused in Canada by  lack of funding for indigenous living conditions. Thus, indigenous children are taken away from their families under the pretense that it improves their welfare. In the 2018 review of Canada’s human rights commitments within the United Nations (UN), the Committee on Economic, Social and Cultural Rights noted “the higher likelihood of indigenous children being placed in childcare institutions”. 

The current crisis could increase over-representation of indigenous children within the welfare system. This is especially the case as aid for indigenous communities in Canada has been wanting. Reuters documented that the aid package meant for northern indigenous communities in Canada came a month after the initial request. 

If over-representation of indigenous children in child welfare can be considered a symptom of an inadequate system, then lack of funding and responsibility is part of the cause. Indeed, Blackstock states that “The 2000 study, the First Nations Child and Family Services: Joint National Policy Review (NPR), revealed that federal funding for First Nations child welfare was on average 22 per cent lower than provincial expenditures for non-Aboriginal children in care.”[5]

More importantly, because Canada is a federation made up of ten provinces, there is a lack of clear responsibility over the system. The Constitution of Canada assigns provincial and territorial governments control and responsibility over child welfare as well as funding for off-reserve programs. The federal government is responsible for funding on-reserve programs.[6]

Jurisdictional disputes and lack of funding do not tell the entire story, however. The Canadian government has been given opportunities to reform the system. Canada’s Truth and Reconciliation Commission and their calls to action, for example. Yet, so far not much progress has been made.[7]

In fact, Prime Minister Trudeau has often backtracked on promises he has made to the indigenous communities in Canada. After his re-election last year, he confirmed that his government would work towards reconciliation. Yet it only took a couple of months for this promise to shatter. 

The New York Times reported earlier this year that the Royal Canadian Mounted Police raided an encampment of the Wet’suwe’ten First Nation. They were “obstructing the construction of a more than 400 mile long natural gas project, the Coastal GasLink pipeline, which cuts right through their sacred indigenous lands in Western Canada”.

COVID-19 offers a new excuse to push back adequate funding and reform for the indigenous child welfare system. The federal government recently recently revealed the economic plan meant to aid Canadians through the crisis. It represents nearly 14% of Canada’s gross domestic product. While this funding is necessary, it does mean that reforming the indigenous child welfare system is significantly lower on the priority list. 

Cutting indigenous funding has often been part of the government’s policy. In the same UN review as mentioned previously, “the Committee on the Elimination of Racial Discrimination was alarmed that despite its previous recommendation and multiple decisions by the Canadian Human Rights Tribunal, less money was reportedly provided for child and family services for indigenous children than for children in other communities, and that this gap was continuing to grow.”[8]

Nonetheless, this is not to say that the federal government has never been held accountable.

In September 2019, the Canadian Human Rights Tribunal released their final decision on First Nations Child and Family Caring Society of Canada v Attorney General of Canada (Representing Minister of Indigenous and Northern Affairs Canada). The Assembly of First Nations gave the Caring Society the authority to file a human rights complaint. The case was brought to the Tribunal in 2006.

‘The last straw’ so to speak was the lack of action the then INAC Minister took in addressing the inequality within the child welfare system. Perhaps what was most striking about this case was not the outcome per se. Rather, it revealed the federal government’s stance on rectifying the inequality within the child welfare system.

Cindy Blackstock mentioned that “the perils of proceeding without a skilled lawyer, however, came into sharp focus for me when it became clear that Canada was going to litigate the case on legal technicalities instead of directly engaging with the factual question of whether INAC’s FNCFS [First Nations Child and Family Services] program was discriminatory.”[9]

The government’s approach was meant to circumvent admitting responsibility. Yet, in doing so, they seemed to have admitted that it was a flawed child welfare system that discriminated against indigenous children, amongst other minority groups.  

In the end, these tactics were unsuccessful. The Tribunal found that INAC had violated non-discrimination under section five of the Canadian Human Rights Act. Significantly, the Tribunal did not stop at remedies for the individual case but required INAC to institute a complete reform of the welfare system: 

“By analogy, it is like adding support pillars to a house that has a weak foundation in an attempt to straighten and support the house. At some point, the foundation needs to be fixed or, ultimately, the house will fall down. Similarly, a REFORM of the FNCFS Program is needed in order to build a solid foundation for the program to address the real needs of First Nations children and families living on reserve.”[10]

The Court also decided that compensation for First Nations children and families was required by INAC. Nevertheless, as this judgement seemed to foreshadow, INAC managed to delay negotiation for compensation. 

On October fourth Canada requested a judicial review of the Tribunal’s decision to the Federal Court. The hope was that with this review they could stop all financial compensation and put the order of the Tribunal on hold until the Federal Court made a decision. 

Again, these tactics were unsuccessful. In the week of November 25th, Federal Court Justice Favel denied Canada’s motion to put the Tribunal’s proceedings on hold. This is a fact sheet by the Caring Society detailing these proceedings

Delay and denial is a narrative that can easily be continued during the current crisis. This possibility is strengthened by the fact that other countries have also experienced minimised scrutiny for human rights violations. Hungary, being an example.

While the Canadian federal government did not manage to avoid financial compensation, it seems as though they have a lot more leeway in deciding how the welfare system will be reformed. 

Bill C-92, was passed in June 2019 as a means to aid reform. Yet, so far it has received a number of criticisms. For example, Jeffrey Schiffer, executive director of Native Child and Family Services of Toronto, is quoted in this article saying “honestly, it’s a little bit reckless to have this legislation come into force without regulations that guide its implementation, and we still have so many different ideas across Canada about what’s going to happen.” 

What is the most worrying however, is how the COVID-19 crisis has affected indigenous communities and the government’s plans to reform the welfare system. Bill C-92 was set to go into effect January 1st this year. On March 9 2020, the first coronavirus-related death was reported in Canada. Three months is not an adequate time to make meaningful reform occur within the indigenous child welfare system. A complicating factor is that NGOs, such as the Caring Society, were not able to readily protect indigenous interests since their offices were closed.   

Taking into account that the government did not hesitate in submitting a judicial review after the decision by the Canadian Human Rights Tribunal, COVID-19 is offering a free pass which allows excuses to be made about the lack of progress on reforming the child welfare system. It is now the question whether Canada will indeed take this free pass, especially as they have already dismissed scrutiny of the child welfare system within the United Nations in the past[11].

[1] Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada. Vancouver, British Columbia: The Truth and Reconciliation Commission of Canada, 2015. 1.

[2] Ibid. 3.

[3] Reconciliation is a term used that describes the process after historical wrongs or conflicts have occurred where relations need to be restored between two groups; in this case the Canadian government and the indigenous community

[4] Blackstock, Cindy. “The complainant: The Canadian human rights case on First Nations child welfare.” McGill Law Journal 62, no. 2 (2016). 293.

[5] Ibid.

[6] Barker, B., G. T. Alfred, and T. Kerr. “An Uncaring State? The Overrepresentation of First Nations Children in the Canadian Child Welfare System.” Canadian Medical Association Journal 186, no. 14 (July 2014). 2. 

[7] Blackstock, Cindy. “The complainant: The Canadian human rights case on First Nations child welfare.” 294.

[8] OHCHR, Thirtieth Session, 7-8 May 2018 ‘Compilation on Canada’ (12 March 2018) A/HRC/WG.6/30/CAN/2. paragraph 59.

[9]  Blackstock, Cindy. “The complainant: The Canadian human rights case on First Nations child welfare.” 299.

[10] First Nations Child and Family Caring Society of Canada 2019 CHRT 39. paragraph 462.

[11] HRC, Thirty-ninth Session 10-28 September 2018 ‘Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review’’ (18 September 2018) A/HRC/39/11/Add.1. paragraph 9.