After a tumultuous week-long hearing, the federal government’s judicial proceeding to overthrow two Canadian Human Rights Tribunal (CHRT) orders regarding discrimination against Indigenous children concluded last Friday.
As the country awaits the decisions of justice Paul Favel, heaps of criticism have risen in the wake of the Liberals’ latest attempt to quash the CHRT calls.
The two orders under judicial review demanded that Canada compensate victims of the child-welfare system and broaden the application of Jordan’s Principle to First Nations children living off-reserve.
Organizations presenting arguments against the revoking of orders included: The Assembly of First Nations (AFN), the Canadian Human Rights Commission, Chiefs of Ontario, the Congress of Aboriginal Peoples, Amnesty International Canada, and the First Nations Child and Family Caring Society.
Executive director of the Caring Society, Cindy Blackstock, has been an avid advocate for the rights of Indigenous children and families for over 30 years.
The work of the organization directly seeks to ensure the safety and well-being of First Nations youth and families.
In light of the legal proceedings underway, Blackstock expressed that the federal government’s battle to overturn the CHRT orders is a direct attempt to avoid progression towards real accountability for the harm that is persistently committed against Indigenous children.
“There’s nothing stopping Canada from sending out these cheques to these kids now, they’re just choosing not to do it,” she said. “They were ordered to do it in 2019 and it’s now just about two years later and they haven’t paid these kids a penny.”
Blackstock has been fighting the federal government since the society and the AFN filed their first human rights complaint in 2007, which called for the end of discrimination against First Nations children.
Fourteen years later, Blackstock is still lobbying for injustice to seize and for the government to respect the rights of Onkwehón:we youth.
The first day of the hearing (Monday, June 14) was marked by Justice Canada lawyer Robert Frater, arguing that the human rights tribunal lacked substantial evidence of “real harm” to order indemnification for victims of the child welfare system.
The same argument was subsequently made when Frater implied a lack of evidence available to prove non-status First Nations children experienced racial discrimination when seeking care under Jordan’s Principle.
“Canada’s arguments were really minimizing of the trauma that their ongoing discrimination poses on First Nation children and families,” said Blackstock.
Throughout the duration of the hearing, the federal government was heavily criticized by First Nations organizations and Onkwehón:we rights activists alike.
On Thursday, June 17, Frater was accused of relying on the Indian Act in a bid to contest the order regarding the broadening of eligibility definition for Jordan’s Principle.
The Indigenous children’s rights champion called the argument “twisted” and upheld that the Caring Society rejects it.
“What the feds are doing is using that racist Indian Act in a human rights context, when they’re not supposed to be discriminating against children because of their race,” said Blackstock.
Frater, one of the Justice Department’s top lawyers, proposed that the Caring Society and the Assembly of First Nations should’ve filed a constitutional challenge to address their concerns with the Indian Act they consider to be discriminatory.
This was met by inquisitive questions by Favel, which Frater responded to by defending the legitimacy of the act.
“The tribunal clearly does not like the Indian Act, but that does not mean that Canada is compelled to ignore it,” said Frater. “The tribunal cannot simply determine unchallenged legislation to be discriminatory and disregard it.”
Although Frater continued to support his argument that the tribunal lacked evidence to rule on the matter of both orders, David Taylor, the Caring Society lawyer, strongly opposed the claim.
“This is the latest in a long series of attempts by the federal government to close the door on substantively equal access to public services for First Nations kids, a right that's protected under the Canadian Human Rights Act,” said Taylor.
The lawyer emphasized that as a human right’s concept, Jordan’s Principle has always been about achieving genuine equality.
“It’s vital to note, that in its effort to close the door, the federal government clings to one of the chief colonial instruments that Canada has wielded to wreak havoc on First Nations cultures over the decades – that’s status under the Indian Act,” stated Taylor.
Ahead of the beginning of the judicial review hearing, came support from a number of members of Parliament (MP) opposing the 14-year-old federal litigation, pushing back the complaint about discriminatory underfunding of First Nations children.
On June 3, New Democratic Party (NDP) leader Jagmeet Singh tabled a motion calling on the federal government to rescind litigations against survivors of residential schools, as well as First Nations children and their families.
The non-binding motion, which also commands Canada to take tangible action toward reconciliation with Indigenous Peoples, was passed by parliamentarians on June 7, with 271 votes in favour and none against.
The positive response was met with an overwhelming stream of support from the public.
Blackstock was encouraged to witness demands from the public on social media, requesting that their MPs vote in favour of the motion brought forth by Singh.
“It really tells me that the Canadian people are way ahead on this issue than the Canadian government is,” she said.
Although there were no votes against the motion, several Liberal cabinet members abstained from voting.
“It was very disappointing to see that Marc Miller and Carolyn Bennett – who are supposed to be standing up for First Nations rights – abstained from the vote, and as did the prime minister,” noted Blackstock.
“When we saw that, we knew exactly what it meant: they were going to court and that they were going to fight these kids the next week,” she said. “Regardless of what Parliament said and of what Canadians wanted.”
At the same time as the Liberal administration was entering last week’s court hearing, the Senate passed the third reading of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – a legislation which has the aim of reconciling the country’s laws with those set out in the international declaration.
Known in Canada as Bill C-15, the legislature was cleared on Wednesday, June 16.
“UNDRIP passed the House of Commons on the very day that Canada is litigating against First Nations kids,” pointed out Blackstock. “This brings me to ask myself, what does this all really mean?”
She further expressed that in her opinion, the moving of the declaration will only be as effective as the federal government decides to make it.
“What they say and what they actually put in writing in court often shows a big difference,” she said.
When Friday, June 18, came around and all of the arguments at the court hearing were presented, the floor turned to First Nations elder Ed Sackaney.
“I won’t really close this session because it’s not over,” stated Sackaney, adding that even with the imminent decision, the battle continues.
The elder went on to offer his thanks to the many organizations, including the Caring Society, who entered the hearing with the sole intention of bringing justice.
“I also want to thank my great Creator for Jordan River Anderson. He lived a very short life but his spirit is still here,” said the elder, about the child whose devastating death prompted Jordan’s Principle. “Without him, we wouldn’t be discussing this. He touched everything that is happening within this country.”
Jordan was born in 1999 with multiple disabilities, requiring complex medical care. The boy passed away in 2005 after spending the entirety of his life in hospitals. His family waited as Manitoba and Ottawa fought over whose jurisdiction the cost of homecare for a First Nation child belonged to.
“I hope the person from Justice Canada is listening,” said Sackaney, who later reprimanded the lawyer for wearing an orange ribbon on his lapel.
The ribbon, which has long been a symbol of acknowledgement for the harms committed at the hands of the federal residential school system, has made a resurgence in recent weeks following the discovery of 215 unmarked burial sites at a former residential school in Kamloops, B.C.
“As a former residential school (survivor), what I witnessed was insulting,” said Sackaney, requesting that Frater remove the ribbon.
Although Favel, who is a member of Poundmaker Cree Nation in Saskatchewan, reserved his decision on both judicial reviews, he made a promise to render a ruling without any unnecessary wait.
“I’m very well aware of how important this is to First Nations children throughout this country, and how important it is to all of you,” he said.
With the verdict pending, Blackstock expressed that support continues to be their most powerful tool.
“Every community member and every member of the public is absolutely essential in ending the injustices,” said Blackstock. “We all have an opportunity with the upcoming federal election.”
When time comes to cast her vote, she explained that she intends to hold governments accountable by requesting that they provide plans as to how they will implement the Truth and Reconciliation Commission’s calls for actions, the tribunals orders, as well as the calls for justice of the Missing and Murdered Indigenous Women and Girls report.
“When the government chooses not to change, children leave their families unnecessarily and some die unnecessarily,” said Blackstock. “It’s really important that we all take that stand because it’s clear to me that the government is choosing not to change.”
Laurence Brisson Dubreuil, Local Journalism Initiative Reporter, The Eastern Door