Court Challenges

NationTalk: Treaty One Territory, Manitoba – Today, the Assembly of Manitoba Chiefs (AMC) calls on Manitoba to make full restitution to First Nations children in care for the Children’s Special Allowances Funds unlawfully and discriminatorily taken from them.

The AMC makes this call in response to the Province of Manitoba’s unilateral announcement of its creation of a Collaborative Table on Policy and Legislation Affecting Indigenous Peoples. The Province also announced that it would not appeal the Court of Queen’s Bench ruling in May 2022 regarding Manitoba’s discriminatory capture of Children’s Special Allowance (CSA) funds from First Nations children in provincial foster care.

In November 2020, the AMC-First Nations Family Advocate Office began a legal challenge against the Budget Implementation and Tax Statutes Amendment Act (BITSA). Section 231 of BITSA entrenched into law Manitoba’s discriminatory clawback and theft of $338 million in federal CSA funds intended to support First Nations children in provincial foster care. The Act also sought to deny First Nations children the right to take Manitoba to court for its clawback of CSA funds from children in care.

“The AMC is pleased that the current provincial government will not appeal the decision that found it discriminated against First Nations children. However, the AMC is disappointed that the province of Manitoba has not yet agreed to provide restitution to those children. While we can appreciate the intent behind the province creating a collaborative pan-Indigenous table, the message is that First Nations as Treaty rights holders continue to be left out of key conversations on policy creation and budgeting at critical moments that have had detrimental impacts on the health and well-being of our families. Without any consultation with First Nations, Manitoba created Section 231 of BITSA to deny First Nations children and youth both their right to CSA funds and their right to access to justice through our court system,” stated Acting Grand Chief Cornell McLean. “At this juncture, we require more than an invite to another table – the children and youth affected need restitution for the harm they endured.”

The two-year legal battle has created a strong sense of mistrust amongst leadership and First Nations citizens. To re-establish a semblance of trust and goodwill, families need to see Manitoba effect meaningful change for the children and youth impacted by the CSA’s.

“We are at a crossroads – we can keep having conversations around the table about what to do about how the child welfare system impacts our families, or the province can act now by stepping aside and finally listening to what we have been saying this entire time. The province must concede that the only way forward is to restore the jurisdiction of child and family matters to First Nations,” states First Nations Family Advocate Cora Morgan.

The AMC calls upon the provincial government to immediately begin discussing compensation for First Nations children and youth impacted by the loss of their CSA funds and put into practice their intention to listen by honouring the many calls for restoration of First Nations jurisdiction over child and family matters that continue to echo throughout the region.

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For more information, please contact:

Communications Team
Assembly of Manitoba Chiefs
Email: media@manitobachiefs.com

Assembly of Manitoba Chiefs – Earlier this week, a class-action lawsuit was filed in Winnipeg against the province of Manitoba regarding the controversial and discriminatory practice of Birth Alerts. The basis for the claim is that Birth Alerts are unconstitutional and are a Human Rights violation.

“The Assembly of Manitoba Chiefs (AMC) has been a strong advocate in taking countless actions to end the practice of Birth Alerts and Newborn Apprehensions.” stated Grand Chief Arlen Dumas. This includes:

• The Executive Council of Chiefs passing a resolution in 2016 calling for the end of the apprehension of First Nation babies.
• The Chiefs also expanded the mandate of the Women’s Council to include Child and Family Matters, advocating for the inclusion of child welfare in the National Inquiry into Missing and Murdered Indigenous Women and Girls (the Inquiry).
• As well, the First Nations Family Advocate participated in the Inquiry as an expert witness calling for governments to examine the legality of Birth Alerts and to end the practice of Birth Alerts,”

Chief Betsy Kennedy, Chairperson of the Women’s Council stated “The Women’s Council lends a strong voice for the issues that impact First Nations women. Since the inception of the First Nations Family Advocate Office, we have witnessed the injustice and inhumane actions of the provincial government and the rooted impacts on First Nations families involved with the Child Welfare system, particularly on First Nations expectant mothers. For too long, we have had the provincial government telling us what is in the best interest of our children and families. This has led to the destruction of our families and Nations. This is evident as seen through the suffering of mental health, addictions, homelessness, and poverty.”

In 2021, a class-action lawsuit was brought against British Columbia seeking justice for the practice of Birth Alerts that have separated hundreds of parents and newborn infants, with First Nations families disproportionately affected.

“Despite the apparent end of Birth Alerts in July 2020 that the Manitoba government announced, our office still receives calls from mothers experiencing a Birth Alert and/or Newborn Apprehension. Newborn Apprehensions and the removal of children is an extremely traumatic practice that has long-lasting physical, mental and emotional effects for First Nations families. Today, the lawsuit is a step in the right direction to help address this discriminatory practice and ensure families receive justice,” stated Cora Morgan, First Nations Family Advocate.

Previously, section 9(4) of the Manitoba Child and Family Services Act identified two types of birth alerts: one issued for women over the age of 18; and one for unmarried minors (mandatory in Manitoba), particularly if they are deemed to be high risk. In both instances, the Agency that issued the Birth Alert had the legal right to apprehend the newborn infant under the premise of acting in “the best interests of the child.”

NationTalk: The Manitoba Court of Queen’s Bench ruled that the government of the province of Manitoba discriminates against First Nations children in the provincial Child and Family Services (CFS) system, and that its attempt to absolve itself of liability for holding back the federal Children Special Allowance (CSA) of over $334 million from children and youth in care was unlawful and constitutionally invalid.

Chief Cornell McLean, the Assembly of Manitoba Chiefs (AMC) Acting Grand Chief, said, “This is a critically important victory for the most vulnerable people in society: our First Nation children. The participation of the AMC, in this case, is directly reflective of the leadership and commitment of the Chiefs in Manitoba to continue to advocate strongly for our children. Yesterday’s ruling sends a strong message that Manitoba can no longer treat First Nations children as commodities. Over the years, there has been a consistent increase in the number of children apprehended and placed into CFS care, and the more children in care, the more Manitoba was able to capture their CSA. The result was the provision of less than adequate supports for First Nations children that would ensure an equitable life.”

The AMC’s position was supported by a number of supporting affidavits from leaders, and Elders and knowledge keepers, including from AMC Grand Chief Arlen Dumas, Pimicikamak Cree Nation Chief David Monias, and Black River First Nation Chief Sheldon Kent. Consistent with the submissions of the AMC, the Court found the CSA clawback had a very overwhelmingly disproportionate and discriminatory “adverse impact” on First Nation children in care. It expressly relied on the evidence of the First Nation Family Advocate Office of AMC that First Nation children in care are more likely to live in poverty, suffer poor educational outcomes and be overrepresented in the criminal justice system.

“I am very pleased that the Court found the CSA policy implemented by Manitoba infringes section 15 of the Charter. Going forward from this ruling, I want to see equitable funding provided for our children and youth in care so that they get the resources needed to assist them in life moving forward. First Nations children deserve a fair chance as other youth,” stated Chief Sheldon Kent.

“This ruling has been a long time coming. It is one step toward holding Manitoba accountable for its actions that specifically target First Nations children. Our children are sacred, and we will continue to advocate and continue challenging these systems that have failed our families and children,” stated Chief David Monias, Pimicikamak Cree Nation.

As part of the conclusion of the decision, the Court stated that “it [was] a violation of s. 15(1) [of the Charter] by Manitoba to preclude children in care from receiving the CSA Benefits and then enacting s. 231 of BITSA to make the CSA Policy law in Manitoba.”

Acting Grand Chief McLean concluded, “It is clear that the provincial system does not serve the best interest of our children, and as a result, our families and Nations. The AMC has been consistent and clear since its inception and the Aboriginal Justice Inquiry – Child Welfare Initiative: the provincial system must go and be replaced by one under First Nations’ jurisdiction. It is clear that both the former NDP government that instituted the CSA policy and the current Conservative government that tried to legislate it and prevent any recourse were acting contrary to the Charter. The government and its policies have manipulated the approach and intent of devolution of the provincial CFS system. I urge the current Conservative government to honour the decision and immediately settle the outstanding remedies, and not appeal the decision. We also call on all provincial parties to declare they will work with the AMC and First Nations in Manitoba to finally complete devolution in order to create a system under First Nations jurisdiction and laws.”

The federal government has asked for a judicial review of the Canadian Human Rights Tribunal (CHRT) decision to award $2B in damages to approximately 53,000 Indigenous children and youth wrongly removed or denied essential services. The CHRT panel found that the government racially discriminated against First Nations children in care in a willful and reckless manner. As a result, the CHRT ordered Canada to pay the maximum amount allowable under the Canadian Human Rights Act.

The government could have addressed the broken system and the funding inequalities before, but they didn’t. To appeal this CHRT ruling, which was meant to provide a measure of justice for First Nations children in care, is hurtful and unjust.” AFN National Chief Perry Bellegarde.

The CHRT has issued eight compliance orders against Canada since its original ruling in January 2016. The CHRT has extended the date for the parties to determine how to deliver payments to Feb. 21, 2020.

Canadian Human Rights Tribunal Citation: 2019 CHRT39, File No.: T1340/7008 

We believe that the Creator has entrusted us with the sacred responsibility to raise our families…for we realize healthy families are the foundation of strong and healthy communities. The future of our communities lies with our children, who need to be nurtured within their families and communities. (see 1996 report of the Royal Commission on Aboriginal Peoples (RCAP), Gathering strength, vol. 3, p. 10 part of the Tribunal’s evidence record). Children hold a special place in Aboriginal cultures (…) They must be protected from harm (…). They bring a purity of vision to the world that can teach their elders. They carry within them the gifts that manifest themselves as they become teachers, mothers, hunters, councillors, artisans and visionaries. They renew the strength of the family, clan and village and make the elders young again with their joyful presence. 

Failure to care for these gifts bestowed on the family, and to protect children from the betrayal of others, is perhaps the greatest shame that can befall an Aboriginal family. It is a shame that countless Aboriginal families have experienced, some of them repeatedly over generations. (see RCAP, Gathering strength vol. 3. p. 21)

The government of Manitoba met with the Indigenous Leadership Council (Manitoba Metis Federation, Southern Chiefs’ Organization and Manitoba Keewatinowi Okimakanak) for first time in over two years despite a previous commitment to meet every quarter. The heads of the Indigenous Leadership Council met again with Minister of Families Heather Stefanson on Apr. 3, 2019 over concerns with the province’s block funding for child welfare that is still based on the old funding formula that rewards removing children from homes. There is no room in this block funding for prevention, no support to keep our families together. Right now, the proposed changes amount to $41.66 a month or a $1.39 per day for each child. Manitoba Metis Federation President David Chartrand

By relying on the federal Children’s Special Allowance (CSA) program to offset maintenance costs, the province is forcing our children to pay for their own care.” Under the federal government, the Children’s Special Allowance program is administered on a per-child basis and is equivalent to the combined maximum of the Canada Child Benefit (CBA) and Child Disability Benefit (CDB). These payments are meant for children in care. However, Manitoba is reducing child maintenance against the CSA funding. The Indigenous Leadership Council stands united in the fight for our children and families.”

They filed a constitutional legal challenge against Manitoba’s “Bill 2″. “Bill 2” is Manitoba’s attempt to legalize the theft of CSA money from Indigenous children, the most vulnerable group in Manitoba. It is also Manitoba’s attempt to escape legal accountability for the theft. This is wrong,” said Harold Cochrane, legal counsel, Cochrane Saxberg LLP.

The Southern Chiefs Organization and the Manitoba Métis Federation along with a group of 19 Indigenous child and family Agencies and Authorities announced their intent to file a challenge to BIll 2 “the Budget Implementation and Tax Statutes Amendment Act” that was passed on November 6, 2020.

Assembly of Manitoba Chiefs – are seriously concerned about Manitoba fast tracking Bill 2, The Budget Implementation and Tax Statutes Amendment Act. If passed, the Bill will have serious implications on First Nations children in care. On March 19, 2020 the Manitoba government introduced Bill 2. The Bill is currently seeking to legalize Manitoba’s actions of recovering the Child Special Allowance since January 1, 2005, when they started taking the child tax credit away. In 2018, a class action lawsuit was filed on behalf of the off -reserve children who had their CSA’s clawed back. A trial date is set for this September. But if Bill 2 passes by September the Manitoba government would not be held responsible for their actions and the lawsuit would be invalid.

“From 2005 to 2019, approximately $338 million dollars of the Child Special Allowance (CSA) funds meant for First Nations children in care were stolen by the provincial government. This is an illegal action. We have a government trying to justify their actions, wiping their hands clean from the claw backs of the CSA by protecting themselves from any legal recourse through Bill 34,” stated Chief Karen Batson of Pine Creek First Nation. ”This is a human rights violation and is another example of how the provincial government has neglected children in care in the past, present, and now future,” concluded Chief Batson.

Manitoba Keewatinowi Okimakanak Inc. (MKO), the Manitoba Metis Federation (MMF) and the Southern Chiefs’ Organization (SCO) are particularly concerned by section 8, “which sets out to legally end the ability of current and former children in care to sue the Manitoba government for clawing back their monthly Children’s Special Allowance (CSA).

The Assembly of Manitoba Chiefs filed its written submissions in its challenge of the provincial Budget Implementation and Tax Statutes Amendment Act. The submissions of the AMC argue that through the BITSA, Manitoba:

• infringes the core jurisdiction of the superior courts and breaches section 96 of the Constitution Act, 1867 by having the province of Manitoba absolving itself from any liability and denying First Nations children in care the right to access the courts;
• denies First Nations children substantive equality and equal benefit of the law on the grounds of age, race, aboriginality-residence and family status, in which the BITSA is contrary to section 15 of the Canadian Charter of Rights and Freedoms;
• denies First Nations the rights, benefits and opportunities promised to First Nations children in care by Canada pursuant to s. 91(24) of the Constitution Act, 1867 and is therefore beyond the province’s constitutional authority; and
• violates the honour of the Crown and breaches its fiduciary duty owed to First Nations children in care

Bill 2, the “Budget Implementation and Tax Statutes Amendment Act“, is passed.

Oct. 7, 2020 – The Assembly of Manitoba Chiefs, the Official Opposition Manitoba NDP and the Manitoba Liberal Party, denounce and reject Bill 2 and stand in opposition against the Provincial government’s approach to denying First Nations families and children access to justice. Section 84 of the Budget Implementation and Tax Statutes Amendment Act will retroactively legalize Manitoba’s actions since January 1, 2005, as well as take away the right to any reparations for the children and families affected by the practice of clawing back the Children’s Special Allowance.

A class action lawsuit in the amount of $338 million dollars was filed against the Provincial government on behalf of First Nation children in care who are victims of the government’s actions of capturing the Children’s Special Allowance. If Bill 2 passes, the class action lawsuit will be void and First Nation families and children will not receive compensation for the injustice they went through.

Proposed class action seeks collective compensation for community-level harms

CBC News: Ten Prairie-based First Nations are suing the Canadian government over the loss of language, culture and tradition inflicted on communities by the modern First Nations child-welfare system.

Chief David Crate of Fisher River Cree Nation north of Winnipeg is the lead plaintiff in the proposed class-action lawsuit filed Jan. 31 in Federal Court, the latest in a series of battles over the chronic underfunding of child and family services on reserves and in the Yukon.

Crate and nine other chiefs are seeking collective compensation for alleged community-level harms exacted by the “mass scooping” of First Nations kids into state custody for more than three decades. “Unfortunately, I’ve seen first-hand the damage done, not only to the individuals but also to my community,” said Harold (Sonny) Cochrane, who is from Fisher River and a lawyer on the case with Indigenous law firm Cochrane Saxberg in Winnipeg.

“The intergenerational trauma, the addiction rates, the poverty, all of those unfortunate results flow from the child-welfare practices and programs of the federal government.”

The claim, which does not provide a dollar amount sought, is untested and must be certified by a judge before it can proceed.  It proposes to include any First Nation that chooses to join and would cover the period between 1991, when the First Nations child and family services (FNCFS) program was created, and now.

$20B already on table for child welfare reform: feds

A spokesperson for Indigenous Services Minister Patty Hajdu declined to comment on the case directly. “However I would point you to the work currently underway with a $20-billion agreement in principle related to long-term reform of Indigenous child and family services,” said Andrew MacKendrick, Hajdu’s communications director, in an email.  “This is part of our government’s commitment to ensuring past harms can never be repeated again.”

Canada made the long-term reform pledge amid an ongoing 16-year-old Canadian Human Rights Tribunal complaint and the 2019 Moushoom class action. Both cases deal with child welfare and seek compensation for individual survivors.

In 2016, the human rights tribunal found that federal underfunding of the FNCFS program constituted systemic racial discrimination. In 2019, the tribunal awarded victims and their families $40,000 each. Last year, in a bid to settle both the complaint and the class action, the federal government pledged $20 billion for individual compensation and another $20 billion for reform.

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The umbrella package would flow via two separate deals, but neither have been finalized or approved by the tribunal or the court.

Cochrane said the focus on nation-level impacts differentiates Crate’s claim from these ongoing cases. “We’re talking loss of culture, loss of spirituality, loss of traditions,” Cochrane said.  “That’s what’s missing.”

‘The next round of cultural genocide’

Shawn Scarcello, also with Cochrane Saxberg, said the legal team is hoping for negotiations, but preparing for a fight. “What we expect to do is take this claim to a trial if necessary,” he said. “We’re looking for accountability from Canada.”

The 52-page statement of claim says Canada introduced the FNCFS program against a backdrop of cultural genocide and intergenerational trauma that started with residential schools and continued with the Sixties Scoop.

The Sixties Scoop refers to the government practice of taking Indigenous children from their families and placing them in foster care or adopting them into non-Indigenous families, which increased in the 1950s as residential schools wound down.

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Following the Sixties Scoop came the modern child-welfare system, “the next round of cultural genocide and discrimination toward First Nations,” sometimes called the Millennium Scoop, the claim says. The term reflects the tribunal’s finding that the number of First Nations kids in state custody today roughly triples the number in residential schools at the height of the system in the 1940s, Cochrane said.

“That should be shocking to everyone.”

The other plaintiffs are Poplar River First Nation, Sioux Valley Dakota Nation, Manto Sipi Cree Nation and Dakota Tipi First Nation in Manitoba and Horse Lake First Nation, Swan River First Nation, Whitefish Lake First Nation, Sucker Creek First Nation and Dene Thá First Nation in Alberta.

Cochrane Saxberg is handling the claim alongside a coalition of law firms that includes Murphy Battista and Miller Titerle in Vancouver, international firm Gowling WLG, and Toronto-based Sotos.

ABOUT THE AUTHOR

Brett Forester, Reporter

Brett Forester is a reporter with CBC Indigenous in Ottawa. He is a member of the Chippewas of Kettle and Stony Point First Nation in southern Ontario who previously worked as a journalist with the Aboriginal Peoples Television Network.

Child’s maternal Gitxsan family fought courts for custody, and paternal family over Métis claims

There were hugs and cheers in a packed Hazelton courthouse on Thursday as a B.C. judge granted permanent custody to the family of a Gitxsan child whose fate has been up in the air until now. “I was so relieved it’s all finally over, our Gitxsan princess can finally have certainty,” said the girl’s auntie, whom the CBC is not identifying to protect the child’s identity. The child’s mother was also present for the ruling.

Provincial court judge Wendy Bernt ordered the girl be placed in the care of her auntie and uncle, who live in Gitxsan territory near Hazelton in northern B.C., about 445 kilometres northwest of Prince George. For eight years, Gitxsan leaders have fought the child’s paternal family and child welfare agencies to keep her in Gitxsan homelands.

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“[It is] complete and utter relief, to tell you the truth,” said Kirsten Barnes, legal counsel for the Gitxsan community. 

The judge also ruled the child’s non-Gitxsan paternal family, including her paternal uncle, can have extended visits — two weeks every year — and calls with the child. The girl’s father died in 2018. Her paternal family were not in court on Thursday.

Ministry applied to have RCMP apprehend child

In April 2015, the child was temporarily placed in a foster home with a white family in Prince George after the girl’s Gitxsan mother, who was struggling, entered into a voluntary care agreement with the Ministry of Children and Family Development (MCFD).

In the following years, Gitxsan leaders fought in court to bring the child home. But in August 2021, against the wishes of the girl’s Gitxsan family, MCFD placed the child with her paternal family, 4,000 kilometres away, in Ontario.

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A few months later in October 2021, the child’s Gitxsan family’s request for her to return to B.C. for an extended visit was granted. When she arrived in Gitxsan territory, the child had a fractured collarbone — from falling out of her bed, according to her social worker. Gitxsan leaders requested the girl stay until the ministry completed an investigation. But the ministry refused, Barnes said, and scheduled her return to Ontario about a week later.

On the day of the scheduled flight, Gitxsan leaders blocked an MCFD social worker from apprehending the girl.  “It brought me to tears, I felt such immense pride and responsibility, because it showed me just how much every Gitxsan child means to our people,” said Barnes, who is also Gitxsan.

A week later, in an emergency court hearing, the girl’s paternal family and MCFD filed an application to have her apprehended by an RCMP officer. “In light of everything happening with the Truth and Reconciliation Commission, they filed to have an Indigenous child apprehended by RCMP? Where is the cultural competency training in that?” said the girl’s auntie.

MCFD did not respond to specific questions about the incident in time for publication, but in a statement said: “In all situations involving children and youth in care, our top priority is keeping them safely connected to their family, their community and their culture.”

In the end, a judge denied the application for the child’s apprehension, and made the application to keep the child in Gitxsan territory as there were no concerns over the child’s safety.

Disputed Métis claims used in court

After an assessment of the girl’s stay in Gitxsan territory, the ministry applied for the girl’s transfer of custody to her auntie. 

But the court proceedings in Prince George took a unique turn in May 2022, when the Métis Commission for Children and Families of B.C. — a representative for Métis children, youth and families involved in the child welfare system — blocked the ministry’s application, arguing the child’s auntie should also agree to a cultural safety agreement to foster the child’s Métis culture because the child’s paternal family is Métis.

The auntie disagreed, saying the Métis heritage being claimed wasn’t legitimate, and refused to sign the cultural safety agreement. “There was no evidence that [the child] was Métis, the paternal cousins claimed Métis because they may have had a Mi’kmaq ancestor 100 years ago … and that doesn’t make them Métis,” she said.

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According to court documents, provincial court judge Susan Mengering noted that a paternal cousin of the child identifies as Métis on both maternal and paternal sides. “[The cousin’s] father, who resides in Nova Scotia, is a registered member of a Métis tribe, the Eastern Woodland Métis Nation of Nova Scotia,” reads the document.

The Eastern Woodland Métis Nation is not recognized by Métis groups, such as the Manitoba Métis Federation, or the federal government.

In 2019, Will Goodon of the Manitoba Métis Federation told CBC News that the Eastern Woodland Métis Nation “is hurting the Métis Nation by saying that they’re us, but they’re also hurting the people who live there, like the Mi’kmaq people.” He said the Mi’kmaq have expressed that the area now known as Nova Scotia is their territory.  “If there was a mixed-ancestry community that lived there and was there, they would have known about it,” Goodon added.

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Barnes raised the auntie’s concerns over the identity claims in court. Mengering took issue with her arguments, saying, “I have serious concerns about the caregiver’s ethnocentric view of Indigeneity … and her willingness to opine on matters of which she is woefully uninformed or misinformed.” The judge also raised numerous court decisions in defence of her judgment to require the Gitxsan family to abide by the Métis cultural safety plan.

The Métis Commission for Children and Families of B.C. did not return CBC’s request for comment.

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However the Métis Nation British Columbia (MNBC) reached out to CBC, saying it was at the court appearance on Thursday, and stands in support of the Gitxsan Nation and family. The group is not affiliated with the Métis Commission for Children and Families of British Columbia. 

“Our MNBC registry confirmed that this status First Nations child did not meet the accepted definition of being Métis on any point, and held that the Métis Commission was therefore overstepping the scope of jurisdiction in what was at heart a First Nations custody case and matter,” a statement read. “MNBC had formally requested the Métis Commission remove the requirement for a Métis Cultural Safety Agreement in this case as the child is simply not Métis.”

‘We can move forward and start to heal’

In June 2022, around the time he was asked in court to prove his Métis heritage, the girl’s paternal cousin withdrew his application for custody.  Meanwhile, requests from the child’s Gitxsan family to have the case transferred to Hazelton from Prince George were granted.

Bernt, the new judge presiding over the case, did not cite the cultural safety agreement, and ruled that the child should stay with her auntie and uncle.  It’s the first time the girl has permanency in her life — a relief for the Gitxsan auntie. “We can move forward and start to heal from all the trauma MCFD has caused our family.”

ABOUT THE AUTHOR

Angela Sterritt, CBC Reporter

Angela Sterritt is an ​award-winning investigative journalist. She is the host of Land Back, a six-part CBC British Columbia original podcast that uncovers land theft and land reclamation in Canada. Sterritt is known for her impactful journalism on the tensions between Indigenous people and institutions in Canada. She is a proud member of the Gitxsan Nation. 

CTV News Winnipeg (Canadian Press): The Manitoba government said Thursday it will not appeal a court ruling that found the province was wrong to claw back hundreds of millions of dollars in federal benefit payments to kids in child welfare.

The government also appeared open to calls for it to return the money, which Indigenous leaders have said totalled more than $300 million. “That is certainly on the table for discussion,” Families Minister Rochelle Squires said. “We certainly respect the ruling and we also respect and acknowledge that amends need to be made.”

The former NDP government started to claw back the federal benefit called the Children’s Special Allowance in 2006. The money goes to agencies that care for children and mirrors the Canada Child Benefit given to parents who are raising their kids.

The province had argued it was right to keep the federal money since it was paying for children in care. The Progressive Conservative government ended the practice in 2019, but also passed a law to retroactively formalize it and try to prevent any legal action.

In May, Court of Queen’s Bench Justice James Edmond said the clawback was wrong and struck down the law that barred legal action. He said the clawback undermined federal law governing the child benefit and violated the rights of Indigenous children under the Charter of Rights and Freedoms. About 90 per cent of children in care in Manitoba are Indigenous.

The Manitoba Metis Federation welcomed the government’s decision.

“While there are still outstanding decisions to be made about how the money will be returned to (children in care), we are seeing that the provincial government is acting in good faith, which gives us hope that the matter will be resolved soon,” Mona Buors, the federation’s minister for Metis child and family services, said in a news release.

Squires also announced Thursday the government will establish a working group with representatives from Indigenous organizations that will examine all future policies and legislation concerning Indigenous children in care.

“That is what this (group) will be dedicated to — not only addressing past wrongs but moving forward with Indigenous-led solutions in the child welfare system.”

Canada sparked dispute by rejecting MNBC bid to opt into Indigenous child-welfare law

CBC News: The Canadian government is blocking a bid by the Métis Nation British Columbia (MNBC) to opt into federal Indigenous child-welfare law on the grounds MNBC doesn’t qualify as an “Indigenous governing body,” Federal Court files show.

The decision sparked an ongoing court challenge in which MNBC, one of four provincial branches of the Métis National Council, calls the move unreasonable and wrong, and asks a judge to quash it. The allegations are untested in court. Indigenous Services Minister Patty Hajdu hasn’t filed a response.

In its July 2022 application for judicial review, MNBC says it is the democratically elected Métis government in the province and represents nearly 90,000 self-identified Métis, of which more than 22,000 are registered members. On Feb. 14, 2020, MNBC then-president Clara Morin Dal Col notified the federal and provincial governments MNBC intended to exercise jurisdiction over child and family services under Bill C-92 An Act respecting First Nations, Inuit and Métis children, youth and families.

More than two years later, on May 9, 2022, MNBC’s current President Lissa Smith met with rejection in a letter from Catherine Lappe, assistant deputy minister at Indigenous Services. “At this time, it is the Government of Canada’s view that the Métis Nation of British Columbia does not meet the requirements to be considered an Indigenous governing body under the federal legislation,” Lappe said.

“There is currently insufficient evidence to demonstrate [MNBC] has been authorized by any communities that hold rights recognized and affirmed by s.35 of the Constitution Act, 1982.” Lappe’s letter also rejected MNBC’s request to access capacity building cash available for rights-holding Indigenous groups, communities, organizations or governments that want to take back control of child and family services.

“We have not been able to confirm” if MNBC qualifies for that either, Lappe said, though she added the funding proposal could be re-evaluated in the future. In a memo filed with the court that was circulated internally, Indigenous Services said the decision could be revisited “should the existence of a rights-bearing Métis community in British Columbia be demonstrated” in court.

Despite that rejection, MNBC’s 2021-2022 audit shows Indigenous Services provided the organization with millions of dollars from envelopes earmarked for other programs. MNBC counted nearly $58 million in revenue, the bulk of it from various federal departments, during that fiscal year, the audit shows.

Indigenous Services declined to make Lappe available for an interview and did not provide a statement by time of publishing.

Request to keep documents secret

For the judicial review, the department filed Lappe’s letter in court along with significantly censored internal supporting documents, arguing the records contain some information that must remain confidential. Government lawyers then requested a court order allowing Indigenous Services to file the uncensored versions in secret, for the court’s eyes only, free from public scrutiny.

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• Métis Nation of Ontario votes to boot members with incomplete files

Indigenous Services argued some information is irrelevant, while other information is protected by a 2018 agreement between Canada and MNBC that allows for confidential negotiations.

In a Jan. 31 motion, Indigenous Services acknowledged this secrecy would have a harmful impact on the democratic rights to freedom of expression and an open court system, but argued the benefits would outweigh the harm by giving the court the full suite of relevant history and context. The court granted the request. The secret material was filed last week.

MNBC declined to comment on the active case.

ABOUT THE AUTHOR

Brett Forester

Reporter, Brett Forester is a reporter with CBC Indigenous in Ottawa. He is a member of the Chippewas of Kettle and Stony Point First Nation in southern Ontario who previously worked as a journalist with the Aboriginal Peoples Television Network.

Toronto Star: The Federal Court of Canada has certified a class-action lawsuit against the federal government on behalf of off-reserve Indigenous children who were taken from their families and placed in non-Indigenous care.

In a decision released online Monday, Federal Court Judge Michael Phelan ruled the class period will cover from Jan. 1, 1992 to Dec. 31, 2019, a time frame referred to in court arguments as the “Millennium Scoop.”

The decision says those affected include status and non-status Indians, Inuit and Métis youngsters and their families who were not living on reserves. The class seeks various damages, restitution and recovery of specific costs on behalf of the affected children and families.

Phelan’s decision says granting certification for a single class-action would avoid the prospect of 13 provincial and territorial separate actions “being pursued by one of Canada’s most disadvantaged groups.” “The Court is not convinced that the issues are only theoretically common. Individual provincial/ territorial welfare practices would need to be considered, whether the claim is in this court or in several courts,” the decision says.

The federal government argued in court that the provinces and territories should be involved in the legal process, but the judge says the Crown didn’t address how it could be done for a national class-action lawsuit. Phelan says for “judicial economy,” a single national proceeding is more efficient.

The plaintiff’s lawyers allege the federal government’s actions breached the Charter of Rights and Freedoms.

Eight people say they were sexually assaulted and beaten by a couple who ran the home in the ‘70s, ‘80s

WARNING: This story discusses the physical and sexual abuse of children.

CBC News: On a dusty plot of land in the western Arctic community of Cambridge Bay, Nunavut, sits a slightly out-of-place modern looking building full of government offices. 

Though Paul has lived his entire 50 or so years in the remote community of 1,500, he’s never been inside. “It’s the only building I haven’t stepped foot in,” he told CBC News. “I won’t.”

Decades ago, long before the shiny new government building, this was the site of the Cambridge Bay group foster home, a place at the heart of a disturbing civil lawsuit between nine former residents of the home and the governments of the Northwest Territories and Nunavut and the Attorney General of Canada.

Paul — not his real name — is one of eight plaintiffs who allege they were sexually assaulted and beaten for years while in the care of the couple who ran the home in the 1970s and ’80s. The couple, Walter and Annie Pokiak, are now dead. A separate plaintiff says she was later assaulted by a fellow resident while the home was operated by another couple.

Together they are suing the government of the Northwest Territories, which was responsible for the administration of the home, and the federal government who funded it, for $11 million in damages. None of the allegations have been proven in court. 

The case was first filed in 2018 in the Nunavut Court or Justice. The plaintiffs, two men and seven women, lived in the home for various amounts of time from 1975 to 1993.  Five years after filing the case, they’re still waiting for a resolution. 

Complaints ignored

Paul said he lived in the home for “about five or six years” around 1980 and suffered both sexual and physical abuse at the hands of the Pokiaks. CBC spoke with five plaintiffs for this story and is using a pseudonym for Paul. That’s because a court order prohibits anyone from publishing the name of the plaintiffs, who were minors at the time of the alleged events.

Paul described how he was swept up into foster care while walking outside after midnight. At the time, he said, his parents were working at the DEW Line site and had left the two children in the care of siblings. “There was this social worker vehicle, it was a van. [The social worker] put me in the back of one of the vehicles. I was about 11 or 12 years of age.”

Paul said he remembers multiple occasions where he and the other residents made disclosures about the abuse to RCMP and local social workers. He even remembers a police officer coming to the home and interviewing the kids staying there.  Paul was shocked to learn in 2023 that neither of the Pokiaks had any criminal charges related to their time running the group home. Walter Pokiak had been charged twice with assaulting his wife, but not until the 1990s.

In court documents, two other plaintiffs say they went to police but that “no action was taken … and the abuse continued.” The plaintiffs’ lawyer, Steven Cooper, says racism is at play in the way the young complainants were ignored. 

“They didn’t believe the young Indigenous complainants,” he said. “If a non-Indigenous child had come forward with the types of complaints that we say some of our plaintiffs came forward with, they wouldn’t have been ignored as they were here.” 

Denial of abuse

The government of the Northwest Territories denies there was any abuse at the home. It filed a crossclaim saying that if it loses the case, the Attorney General of Canada, who it says was responsible for the welfare of Inuit children at the time, should be the one to pay any damages to the plaintiffs. In its defence, the federal government is pointing the finger at the territorial government, saying it alone had jurisdiction over child welfare services in the region.

The plaintiffs, however, pin the blame on both governments.  “We allege the federal government was carrying out its responsibilities by employing territorial government resources,” said Cooper.

In its statement of defence, the Attorney General of Canada said because the alleged abuse took place decades ago, any evidence that police were aware of it is gone. “The RCMP has a policy of retaining certain documents for 20 years, and if these documents existed they have been destroyed,” court documents say. 

‘All I’m asking … is an apology’

All the plaintiffs CBC spoke with said they are disappointed and frustrated by the speed at which the lawsuit is moving.  It’s been five years since the lawsuit was first filed. Emails obtained by CBC from Cooper to the plaintiffs show one of the nine plaintiffs has been offered a settlement by the territorial and federal governments. 

Cooper refused to comment on whether a settlement had been reached, but shared in the plaintiffs’ concerns. “What’s frustrating, frankly, is the delay. Please get back to us faster. Please resolve these matters … I do believe we are being caught between the two levels of government,” he said.

“Governments exacerbate the problem when they don’t deal with the claims in a timely fashion. They victimize the plaintiffs … This group of abused victims all are entitled to settlement and they’re entitled to settlement now.”

The N.W.T. government refuses to comment on the case or any settlements that may have been reached. The federal government emailed a statement noting that “Canada, the provinces, territories and other administrators, must take appropriate steps to resolve litigation in order to bring a meaningful resolution to this painful legacy” of mistreating Indigenous children. 

Meanwhile, Paul doesn’t know what he will do with any money he may receive but said more than anything he wants to be able to put the lawsuit behind him. “I have to drive by that building everyday. I have forgiven them, those people that did wrong to us but all I’m asking from the government is an apology.”

Support is available. If you or someone you know is struggling, here’s where to get help:

• In the Northwest Territories, reach the NWT Help Line 24/7 at 1-800-661-0844. 
• In Nunavut, reach the Kamatsiaqtut Help Line 24/7 at 1-800-265-3333 or 867-979-3333.
• In Yukon, call the Reach Out Support Line between 10 a.m. and 2 a.m. seven days a week at 1-844-533-3030.
• Talk Suicide Canada: 1-833-456-4566 (phone) | 45645 (text between 4 p.m. and midnight ET).
• Hope For Wellness Helpline: 1-855-242-3310 (phone, available in Inuktitut, Cree and Ojibway upon request).
• Kids Help Phone: 1-800-668-6868 (phone), live chat counselling on the website.
• Canadian Association for Suicide Prevention: Find a 24-hour crisis centre.

This guide from the Centre for Addiction and Mental Health outlines how to talk about suicide with someone you’re worried about.

ABOUT THE AUTHOR

Hilary Bird, Reporter

Hilary Bird is a reporter with CBC North in Yellowknife. She has been reporting on Indigenous issues and politics for almost a decade and has won several national and international awards for her work. Hilary can be reached at hilary.bird@cbc.ca