On January 4, the government of Canada announced it will compensate victims of historically inadequate Indigenous child and family welfare services to the tune of $20 billion.
It sounds like a lot of money. But we’re talking about over 115,000 Indigenous children who were removed from their homes, and well over 100,000 who received substandard care compared to all other Canadian children.
Cindy Blackstock of the First Nations Child and Family Caring Society and others have documented thousands of cases where the federal government provided Indigenous children suffering from illness or disability with services and treatment far below the standards set by provincial governments.
In 2012, in the Pictou Landing First Nation in Nova Scotia, Jeremy Beadle’s mother, Maurina Beadle, suffered a stroke. Jeremy had a severe form of cerebral palsy and autism and, until her stroke, his mother had cared for him.
After she became ill, the federal government wanted Maurina to put Jeremy in an institution, but she refused. Maurina Beadle believed she and Jeremy were entitled to the same level of support for care in the home as other, non-Indigenous, Nova Scotia families.
Federal officials only agreed to provide the Beadle family a maximum of $2200 per month, based on unilaterally-determined Indian Affairs guidelines. That was far below Nova Scotia standards.
Maurina Beadle went to court, demanding fair and equitable treatment under Jordan’s Principle, which was enunciated in a motion passed unanimously by the Canadian Parliament in 2007.
Jordan’s Principle was named after Jordan River Anderson, who spent more than two years unnecessarily in hospital while the federal and Manitoba governments argued over payment for his at-home care. The motion established a children-first rule. Governments, it stated, must pay for the needed services to Indigenous children in a timely way, then settle their jurisdictional disputes later.
It turned out that the federal government was speaking with a forked tongue in 2007. Federal bureaucrats proved that point in the case of Maurina and Jeremy Beadle.
Government lawyers argued, in effect, that Jordan’s Principle was merely procedural and non-binding. The motion Parliament passed did not, they claimed, create a right for First Nations children and their families.
A 2016 Human Rights Tribunal’s ruling, subsequently upheld by the federal court, orders the federal government to live up to the promise of Jordan’s Principle – for Maurina and Jeremy Beadle, and for tens of thousands of others.
And so, if $20 billion sounds like a lot of money, remember that it is compensation for many decades of deliberate and often callous bureaucratic and political neglect. Bear in mind that the government will not pay that money in one fell swoop. Payments to families and individuals will happen over a number of years.
In addition to the compensation, the government has also committed $20 billion to reform, and, in essence, re-invent the child and family services system for First Nations. If that, too, sounds like a lot of money, remember that, in this case, the government is clear and upfront about that being a five-year commitment.
Federal lawyers finally decided to consider the children first
There was a news conference early in the New Year to announce the agreement on compensation, which will, at last, end the litigation on this matter that has gone on for far more than a decade.
In addition to the cabinet ministers and Indigenous leaders present, there were, exceptionally, also government lawyers, who usually stay in the background. Much of the blame, if there is any, for the long and costly legal wrangling over the rights of Indigenous children and families can be placed at the feet of those lawyers.
In the federal bureaucracy, the legal teams treat the government as their client, just as though the government of Canada were a private, profit-making business. It is in the nature of the lawyers’ role.
Whenever any part of the vast federal government has a legal hassle of any sort it is the role of the lawyers to advise their client how it can best protect its own interests – again, just as though the government of all Canadians were merely a private-sector corporation.
When she was justice minister, Jody Wilson-Raybould challenged that mind-set when it came to litigation with Indigenous groups and communities.
The first Indigenous person to hold the position of federal justice minister instructed her lawyers not to use the government’s nearly infinite resources to fight for every inch of advantage in every case involving Indigenous people.
Jody Wilson-Raybould instructed her lawyers to seek justice, rather than victory at all costs. We now know that few of the legal professionals on the government’s payroll agreed with her.
That’s why the presence of the lawyers at the news conference on First Nations child and family services conference spoke loudly. It indicated a change of heart on government lawyers’ part. Indeed, one of the lawyers pointedly said, “this is not about winning a case, which we think we could have won. It is about the children.”
We do not know yet whether this signals a belated victory for Wilson-Raybould or whether it is a one-shot exception to the rule.
The impact of the agreement, and the next chapter
One reporter at the news conference wanted to hear about the systemic and long-term consequences for Indigenous communities of the agreement. The reporter spoke of the vast differences he has witnessed between impoverished and struggling northern Ontario First Nations and those just over the border in Quebec.
Northern Quebec First Nations benefit from the James Bay and Northern Quebec agreement, negotiated in the mid-1970s. To all appearances, they have better infrastructure and services and are, in general, more prosperous than their Indigenous Ontario neighbours.
The reporter wanted to know if the agreement on child and family services would serve the same uplifting role for Northern Ontario First Nations that the James Bay agreement did for the Indigenous peoples of Northern Quebec.
An Indigenous leader who answered allowed himself to be optimistic. It was a day for hope all around.
The truth is that the new federal commitment will, ideally, help build a new and more robust system for supporting Indigenous families and children. Over time the new system should have ripple effects, in the form of happier and healthier children, who will succeed at school and in their subsequent careers.
But the James Bay agreement was not merely for one kind of service. It was far more comprehensive.
The agreement included a guaranteed royalty from the massive James Bay hydro-electric project; institutions of self-government, including control over education; and extensive designated Indigenous territories, divided into different ownership and usage categories, far in excess of the tiny lands assigned to the Bands created by the Indian Act of 1876.
It was not a perfect agreement.
Many First Nations object to the fact that the Cree and Inuit of Northern Quebec were forced to extinguish their Aboriginal rights, and foreswear any further claims, in exchange for the powers and benefits of the Agreement.
But the James Bay agreement does contain large elements of the kind of economic self-sufficiency and self-government the Royal Commission on Aboriginal Peoples (RCAP) proposed more than two decades ago.
Federal ministers have periodically marked anniversaries of that landmark Royal Commission. They have noted how the federal government has fulfilled a few of the Commission’s recommendations.
For the most part, however, all governments have avoided the root-and-branch re-configuration of the relationship with First Nations RCAP envisions.
Now that it appears the child and family services dispute is settled, it is perhaps time for the government to turn its attention to those more fundamental issues. The roadmap and tangible examples, such as the James Bay Agreement, already exist.