Stealing “Indian” human rights in 2021

Two hundred and fifteen children were buried in unmarked graves on the grounds of the Kamloops Residential School, which was operated by Canada and run by the Catholic Church. They likely died alone, away from their families and in very scary circumstances.

Generations later, the actions of Canadian governments continue to hurt First Nations children.

I have had a front-row seat for over two decades to the impacts of Canada’s discriminatory provision of public services for First Nations children and families. The federal government funds all public services on reserves from water to education and child welfare and has done so at far lesser levels than other Canadians receive since Confederation

There is a litany of reports showing the tragic effects of the discrimination for First Nations children, including ongoing family separations that occur at higher rates than during the residential school era, and the deaths of too many children. Canada’s usual reaction is “we will review” or it is preparing “action plans” that never get implemented, and the old saw of “we need to talk to First Nations people” before ending the discrimination against them.

In 2016, the Canadian Human Rights Tribunal (CHRT) ordered Canada to cease its discriminatory conduct toward First Nations children and families. Canada welcomed the decision and then did not comply. There have been over 19 non-compliance and procedural orders issued since 2016 to move Canada closer to compliance.

Between June 14 and18, the Federal Court will hear the federal government’s applications for judicial review of two Canadian Human Rights Tribunal orders. Canada’s position runs at cross purposes with two of the top three Truth and Reconciliation Commission’s Calls to Action: child welfare and Jordan’s Principle.

The first order the federal government is challenging was issued in September 2019. The CHRT ordered the federal government to pay a total of $40,000 to First Nations children living on reserve who were denied equal child and family services. The tribunal said: “Canada’s conduct was willful and reckless resulting in what we have referred to as a worst-case scenario under our Act.”

The second CHRT order being challenged, from 2020, was to ensure First Nations children off- reserve are covered by Jordan’s Principle. This principle requires governments to ensure First Nations kids get the public services they need, when they need them and not suffer because of intergovernmental squabbling over jurisdiction.

Although I have been working on First Nations children’s equity for over 30 years, I still can’t understand why the government keeps choosing to fight to do the wrong thing. While sorting through my papers in the midst of the lockdown, I found some answers. They were in an old copy of some speaking notes given to me by Gerry Gambill, a self-described “non-Indian” working in the Department of Indian Affairs. Gambill had put together the notes for a human-rights conference talk at Tobique First Nation in 1958. They were titled “Stealing Indian Human Rights.”

With a few tweaks in language, this document reads like the 2021 roadmap used by Canada towards First Nations children today.

“Make him (the Indian) a non-person. Human rights are for people. Convince the Indians that their ancestors are savages, that they were pagan, that Indians are drunkards. Make them wards of the government. Make a legal distinction as in the Indian Act between Indians and persons. Write history books that tell half the story.”

Canada delivered its toxic potion of misinformation to the Canadian public with precision. It left generations of Canadians in the dark while residential schools went about the work of trying to erase First Nations, Métis and Inuit peoples using whatever means it deemed necessary, including abuse and neglect.

Next week, the Canadian government will argue in court that First Nations children without Indian Act status (yes that Indian Act is still on the books) are not covered by Jordan’s Principle. Canada argues that children who are recognized by their First Nations but who do not have Indian Act status should not get help under Jordan’s Principle. To rub salt into the wound, Canada weaponizes First Nations adults by saying the reason they are judicially reviewing the order is so they can talk to First Nations even though we are just across the courtroom from them opposing their arguments.

“Convince the Indian that he should be patient, that these things take time. Tell him that we are making progress and progress takes time and make him believe things are being done for his own good and set yourself up as a protector of the Indian’s human rights.”

Canada is saying it wants to overturn the CHRT’s order around compensation for children because it wants “fair” compensation. The federal government is trying to weaponize First Nations adults against our own children by saying they need to “talk” to First Nations before compensating the kids. All of this ignores that not one First Nation has intervened to support the Attorney General of Canada in the Federal Court application, and is opposed by the Assembly of First Nations, the Chiefs of Ontario, the Nishnawbe Aski Nation, the First Nations Child and Family Caring Society, the Canadian Human Rights Commission and Amnesty International. If they want to talk to us, we are right across the courtroom from them.

The government will say that systemic discrimination does not entitle First Nations children (and most are still children) to individual compensation. That dark-age type thinking would mean that the families of Joyce Echaquan, George Floyd and others ought not to receive compensation for the horrendous harms done to them – it is a morally bereft argument intended to avoid government accountability.

Thankfully, the Canadian public is becoming increasingly informed and outraged, prompting the House of Commons to unanimously pass a resolution requiring Canada to stop litigating against residential school survivors and Indigenous children and move swiftly to implement the Truth and Reconciliation Commission’s Calls to Action. The prime minister and the cabinet abstained, and Canada has not withdrawn its legal action against First Nations children.

“Make the situation appear more complicated than is necessary.”

Think about the lack of progress on getting clean water to First Nations communities. Canada uses the complicated argument all the time, even blaming construction delays on COVID-19. I live in Ottawa, and I can tell you that construction on the Parliament Buildings never stopped during the pandemic.

What about the remoteness argument? Well, the International Space Station with a population of six has clean drinking water. Responding to constituent concerns about Canada’s upcoming litigation against First Nations children, Liberal Member of Parliament Julie Dzerowicz’s circular noted, “On legal matters, kindly know we are not taking Indigenous children to court. This is hard to explain and rather technical, but I will try.”

“Make the Indian believe you are working hard for him, putting in much overtime and at a great sacrifice, and imply that he should be appreciative. This is the ultimate in skills in stealing human rights: when you obtain the thanks of your victim.”

Consider this exchange between APTN reporter Jamie Pashagumskum and the prime minister on June 4, 2021, regarding a separate class action proceeding that is seeking to provide compensation to some of the same children: 

Jamie Pashagumskum: “Now, the Canadian government is currently excluding thousands of First Nations families from settlement talks in a class action that deals with the underfunding of the child welfare system and Jordan’s Principle. This is because the Crown believes it can beat them in court based on legal technicalities. And you said time and time again, that nothing is more important to Canada than its relationship with indigenous people. As a gesture of reconciliation, and I know we’ve heard that term thrown around a lot here, this past week, will you reverse this position and include these plaintiffs in the settlement talks?”

Justin Trudeau: “Thank you very much for your question. Let me first be very clear, we are not fighting indigenous kids in court, regardless of what political opponents may say. We have been working clearly and collaboratively with Indigenous organizations and leadership across the country, on the harm that has been done over the past many years to far too many indigenous kids, now adults, in the child and family services system. We have recognized from the very beginning that those Canadian, those Indigenous Peoples, are worthy of compensation, and we will be compensating them. The questions and discussions ongoing with the communities and the leadership is about what the right level of compensation for different groups in different communities are, and those conversations are ongoing.”

“Hold a conference on Human Rights, have everyone blow off steam and tension, and go home feeling that things are well in hand.”

Canada has mastered this one over time frequently using commissions, inquiries and reports to mask its choices to not implement solutions to fix the problems that are already on the books. Canada’s response to the Final Report of the National Inquiry into Missing and Murdered Women and Girls is a prime example. The federal government waited two years to issue any response, and when Crown-Indigenous Affairs Minister Carolyn Bennett finally responded this week, it amounted to a plan to make a plan with, of course, a need to “engage” with “partners.”

The problem is that women and girls continue to go missing and Canada’s spineless response to the MMIWG’s detailed Calls to Justice does little to prevent what the MMIWG report called genocide from continuing.

“Consult the Indian, but do not act on the basis of what you hear. Tell the Indian he has a voice and go through the motions of listening. Then interpret what you have heard to suit your own needs.”

In the midst of being forced to increase funding First Nations child and family services and to comply with Jordan’s Principle, Canada decided it was time to affirm First Nations, Métis and Inuit jurisdiction over child and family services (through the “Act respecting First Nations, Inuit and Métis children, youth and families”). It included the caveat that the tribunal’s orders to ensure substantive equity in First Nations child and family services would no longer apply to the federal government if jurisdiction was drawn down by First Nations. Canada says it “engaged” with “stakeholders and partners” in the “co-development” of the Act. It does not mention the many Indigenous peoples who expressed serious concern about the absence of a clear funding obligation and other weaknesses in the Act. Indigenous jurisdiction over children’s services is important but without adequate funding it will be just another paper tiger.

The antidote to all of Canada’s strategies for “Stealing Indian Human Rights” is for the Canadian public to see through government bafflegab and keep an eye on what does and hold it accountable for implementing the solutions that are already on the books like the Truth and Reconciliation Commission’s Calls to Action, the Missing and Murdered Indigenous Women and Girls Calls to Justice, the Canadian Human Rights Tribunal orders and the House of Commons motion to stop fighting Indigenous children and residential school survivors in court. And what about getting rid of the racist Indian Act? Good idea, and in 1996 the Royal Commission on Aboriginal Peoples released a 20-year road map to do just that. Canada did not implement it.

The government has proven that it will choose to violate First Nations children’s rights versus accepting accountability for its conduct. Members of the Public need to become the new MPs and let elected officials of all parties know that we have learned the truth from Indigenous Peoples, and we will hold them accountable for action.

The best way to honour the 215 sacred children buried in Kamloops and other Indian residential schools, the survivors and the Indigenous children who died owing to Canada’s ongoing discrimination, is to seek justice for them. Let’s get to work.

This article first appeared on Policy Options and is republished here under a Creative Commons license.