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Published March 16, 2019

 

First Nations Child and Family Caring Society of Canada v. Canada, 2019 CHRT 39

 The Indigenous Law Association at McGill Blog and the McGill Journal of Law and Health are collaborating on our blogs this year, in order to connect our readers with more content at the crossroads of health law, and Indigenous law and legal traditions.  You can find this article cross-posted on their website.

Contributed by Maya Gunnarsson

Introduction

The Canadian Human Rights Tribunal released their latest decision in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) in September 2019. This ruling was the 9th issued by the Tribunal since 2016, when they found the Caring Society’s allegations that Canada was discriminating against First Nations children in their provision of child and family services were substantiated.

This ruling is dedicated to all the First Nations children, their families and communities who were harmed by the unnecessary removal of children from your homes and your communities. The Panel desires to acknowledge the great suffering that you have endured as victims/survivors of Canada’s discriminatory practices. 

Caring Society v. Canada, 2019 CHRT 39 at para 13.

The purpose of this ruling was to determine the compensation Canada would be ordered to pay due to their discriminatory practices. More broadly, however, this decision attempted to bring justice to an extremely vulnerable group of people who have historically been denied access to justice through Canadian institutions. Since the initial ruling in 2016, the Tribunal had issued multiple remedial orders against Canada, finding that they were continuing to discriminate, and giving clear orders on what the federal government needed to do to comply with its 2016 decision. While the federal government may have been dragging its heels, the Tribunal firmly took a step towards reconciliation in Canada with this decision. 

Background

In 2008, the First Nations Child and Family Caring Society brought forward a complaint to the Canadian Human Rights Commission. They alleged that the federal government was discriminating in their provision of child and family services to First Nations children living on reserve and in the Yukon by providing inequitable and insufficient funding for those services, contrary to s. 5 of the Canadian Human Rights Act (CHRA). Whereas the federal government provides child and family services for First Nations, the provinces provide those services for non-Indigenous Canadians. At issue in the original complaint were the funding formulas the federal government used to provide these services, as well as their definition of Jordan’s Principle—a principle intended to ensure First Nations children have access to the same healthcare and social services as non-Indigenous children. For a more detailed background on Jordan’s Principle and the Canadian Human Rights Tribunal’s previous rulings on this case, please see our previous blog post on the subject here.

In 2016, the Tribunal found that the Caring Society’s complaint was substantiated and the federal government’s provision of child and family services “resulted in denials of services and created various adverse impacts for many First Nations children and families living on reserves (para 458).” The Tribunal ordered the federal government to cease its discriminatory practice and to take measures to redress and prevent it. At the time of the judgement, the Tribunal stated that it had outstanding questions regarding the determination of compensation and deferred its ruling on the matter until those questions were answered.

The 2019 Decision

Under s. 53 of the CHRA, if the complainant’s claim of discrimination is substantiated, the Tribunal may order the person (or entity) found to be engaging in the discriminatory practice to financially compensate the victim. Specifically, under s. 53 (2)(e) the Tribunal can order the person to pay up to $20,000 for pain and suffering that the victim experienced as a result of the discriminatory practice. Additionally, under s. 53(3), the Tribunal may order the person to pay an additional $20,000 where the person is found to be “engaging … in the discriminatory practice wilfully or recklessly.”

In order to calculate the appropriate amount of compensation under s. 53(2)(e), the Tribunal had to determine whether the federal government’s discriminatory behaviour resulted in harm to First Nations children, and the extent of their pain and suffering. In determining the appropriate amount of compensation under s. 53(3), the Tribunal had to assess whether Canada was aware of its discriminatory practices. These two sections of the CHRA provided the Tribunal with the authority to award a maximum of $40,000 to each victim of discrimination.

The Tribunal stated that it had heard extensive evidence demonstrating that First Nations children were denied essential services after significant and detrimental delays, causing harm to the children and their parents or grandparents caring for them. For example, some children were required to stay in hospital longer than was medically required, often away from their home communities, while their families waited on funding approval for medical equipment that they needed in order to leave the hospital. In some cases that approval never came.

The Tribunal further stated that the evidence showed some children and their families experienced serious mental and physical pain as a result of the delays and denials in services. Due to the funding formula, many children were removed from their homes and communities in order to access required services. These children were not living in abusive or unsafe homes; however, the only way for them to access services that were available to other Canadian children was to be put in the care of the State. The removal of children from their communities and families was traumatic, and caused great pain and suffering to both the children and their families. As a result, the Tribunal awarded $20,000, the maximum amount allowed for pain and suffering, to each First Nation child that was removed from their home since 2006, and to each of their parents or grandparents where the removal was unnecessary.

Further, the Tribunal found that “Canada’s conduct was devoid of caution with little to no regard to the consequences of its behavior towards First Nations children and their families both in regard to the child welfare program and Jordan’s Principle (para 231).” Canada knew that its policies were harming children, however, the government chose to put their financial interests above the best interests of children. As a result of this wilful and reckless behaviour, the Tribunal awarded each First Nation child that was removed from their home since 2006 and, where the removal was unnecessary, each of their parents or grandparents an additional $20,000, the maximum allowable amount. 

Case Analysis

The Tribunal’s decision to award the maximum amount allowed by statute was rare. The decision repeatedly emphasized that the maximum amount of $40,000 for victims was reserved for the worst cases. The Tribunal also categorized the unnecessary removal of children from their homes, families, and communities as “a worst-case scenario (para 234).”

In 1998, the maximum amount the Tribunal could award victims of discrimination was raised from $5,000 for “reckless or wilful conduct or hurt feelings or loss of self-respect” to $20,000 for pain and suffering and $20,000 for reckless or wilful behaviour (para 5). Since then, the Tribunal has only ever ordered compensation to the maximum amount in both categories once: in Alizadeh-Ebadi v. Manitoba Telecom Services in 2017. This case involved an employee facing sustained discrimination at his workplace for over twelve years. Clearly, the Tribunal does not order the maximum amount of compensation lightly.

The impact of awarding the maximum amount allowed by statute to the victims cannot be overstated. In its decision, the Tribunal addressed the victims of Canada’s discriminatory actions directly, stating: “No amount of compensation can ever recover what you have lost, the scars that are left on your souls or the suffering that you have gone through as a result of racism, colonial practices and discrimination (para 13).”

While the compensation of $40,000 cannot be considered proportional to the pain suffered by First Nations children and their families, ordering the maximum amount allowed by statute to be paid to each victim of Canada’s racial discrimination recognizes the severity of the discrimination the Tribunal adjudicated. Further, it attaches the highest price tag it can onto the government placing its own interests above the best interests of children over whom it has a responsibility.

According to the final report of the Truth and Reconciliation Commission,

Reconciliation is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. In order for that to happen, there has to be awareness of the past, acknowledgement of the harm that has been incited, atonement for the causes, and action to change behaviour.

pg. 6-7

In this decision, the Tribunal acknowledged the past and detailed the specific harms of the government’s behaviour. It attempted, to the best of its ability given the authority it had as set out by statute, to ensure atonement for the harms caused, through public renouncement and financial compensation. This decision also provides an impetus for the federal government to change its behaviour, as a financial cost is now associated with every subsequent act the government undertakes that neglects the needs of a First Nation child.

This ruling does not fix the entire First Nations Child and Family Services Program in and of itself. However, it signals to the government of Canada, to First Nations communities, and to the Canadian public, that egregiously discriminatory behaviour by the Canadian government is not acceptable. It signals that the lives of those children and their families impacted matter. And it underscores the importance of community, family, and culture in a First Nation child’s life. In short, it is a significant step towards reconciliation.

On October 4, the Attorney General of Canada filed an application for judicial review of this decision. It calls for an order to set aside the decision and dismiss the claims for monetary compensation. This post will be updated following the release of the Federal Court’s review.

Maya Gunnarsson is the Executive Online Editor of the McGill Journal of Law and Health and a second-year B.C.L./ LL.B. student at McGill University’s Faculty of Law. Maya holds an M.A. in Canadian Studies and Indigenous Studies from Trent University where she focused her research on the role of the media in the ongoing crisis of violence against Indigenous women and girls. Prior to law school, Maya worked as a researcher at the Higher Education Quality Council of Ontario and interned at the Office of the UN High Commissioner for Human Rights in the Indigenous Peoples and Minorities Section.


Published March 19, 2019

Interview with Professor Aaron Mills on his new Indigenous Constitutionalism Course

The ILADA Blog team is very excited about McGill’s new Indigenous Constitutionalism course, designed and delivered by Professor Aaron Mills. This interactive course uses Indigenous pedagogies, including the format of a sharing circle, to explore Anishinaabe legality, constitutionalism, and law.

In Professor Mills’ words, “Through elder’s teachings, stories, material culture, and the works of myriad Indigenous writers and orators, we’ll begin to develop an understanding of the logic, structure, and principles of one view of Anishinaabe constitutionalism, what kinds of legal processes and institutions it supports, what kind of law these generate, and how that body of law changes through time and across places. We’ll practise and apply Anishinaabe legal reasoning today, and will reflect upon a number of contemporary indigenous law revitalization projects in Canada, all in the context of contemporary colonialism. In so doing, we shall critically consider how colonialism structures indigenous-settler relationships on Turtle Island, complicating prospects for indigenous constitutional and legal revitalization.”

As the first offering of this valuable course draws near its end, Sejeong Park, one of our Associate Editors, asks Professor Mills to share his thoughts on the challenges and potential impacts of these teachings.

Sejeong: Would you mind describing your course, “Indigenous Constitutionalism”?

Aaron: I think the course is… an adventure. (laugh) I think it’s quite challenging. It asks students to bring their whole selves into the classroom. And so, like all classes, I certainly want students to come in with an inquiring mind. But it also takes seriously various modes of inquiry and participation. And so, it is in a circle format. Not exclusively, but that’s the base structure. And then, depending on how the class feels and what’s working effectively, we sort of mix it up. But the circle engages and respects people as people, not just as inquiring minds. And so, people participate and learn from one another and in different ways. And some of the contributions offered up are sometimes more from the heart or the spirit, or more from learned experience and body, in that sense. And this method of knowledge generation is relatively novel for the vast majority of the students. Hence, a challenge. (laugh)

Sejeong: It must be a challenge for you, too, sometimes. Or I assume so, especially if you are teaching with a different methodology than most courses would – or, at least, a methodology that is different from what most students are probably used to. Did you find any challenges in engaging students?

Aaron: Yeah, it certainly is a challenge, in the sense that, unlike a lecture and, to a certain extent, even a seminar format, there is not a whole lot I can to do prepare in advance. I have to be very on, in the moment. And my task as facilitator is to ensure that we engage meaningfully with the texts. And also, that everyone is participating in a good way and just being respected. And, especially towards the start of the course, if they’re not effectively engaging with one another’s contribution, it is my task to draw out those linkages, right? Not just to the material for the day, but also between one another’s contributions. And so, yeah, it’s tiring in a sense, but also quite exhilarating to see students, in every case, rise to this new challenge and develop capabilities which, in some cases, they did not even know they had. It’s also exhilarating for me because it’s a way of taking Indigenous law very seriously, on its own terms.

Sejeong: Could you share what you were thinking or feeling while you were designing the syllabus and any particular goals you may have had in mind?

Aaron: So, a great deal of excitement. That was probably the greatest feeling, because it gave an opportunity for me to share, not just the content but, as I want to keep emphasising, the way of learning that my Elders, Anishinaabe legends, and the land itself have shown me is the way that learning Indigenous law really happens. And so it’s an opportunity to bring a small slice of that into students’ lives. And so, for me that’s terribly exciting because I think it helps people to grow and to be their best selves, but it also opens a door of possibility to a kind of transformative change that many of us don’t have access to. Having said that, I should make it very clear that the course is not a political project to get students to act in certain ways. But it does have as one of its purposes empowering them by presenting another way of living law. And so, to expand their field of possibility.

Yeah. So, a lot of excitement and a deep, deep sense of responsibility. Because, you know, I state at the outset who my teachers are, and I have to honour their teachings, and, in a certain respect, I am representing their knowledge. And mistakes are of course my own, but I have to be mindful of the fact that I am not simply acting free-license, right? I, my community ties, and my connection to my place are not just a political act. They are also deeply meaningful to me in a personal sense. So, I have responsibilities that I have to live up to as I run the class. So that’s sort of an invisible piece that is behind the scenes, that students might come to appreciate throughout the course. But it isn’t the sort of class that I simply come in with a great deal of intellectual excitement and can make happen whatever I can make happen. There is a field of responsibility that I can move within. And at this point in my life, I know just the tiniest little bit myself. And so, I also have to be careful to not supersede what has been gifted to me and my own limitations.

Sejeong: What do you think or hope would be the impact of your course on your students, as future jurists or just in their careers?

Aaron: Right. Well, let me answer the “as jurists” part, because it’s an easier answer and I think that it is not actually the main answer. This course isn’t, in a strict sense, preparing them to be jurists. I think it can have – and ought to have – a very significant impact on that sort of practice, right? By, for instance, creating legal actors who are less colonial and less racist, and who have some of the interpersonal capacity to effectively engage the sort of persons who are. That can only be a good thing. And I, of course, hope that my course would have that sort of impact on, what is from a Western standpoint, conventional legal practice. However, this is sort of to beg one of the critical points of the course, but law actually means something different from an Anishinaabe standpoint, and which is not properly the domain of elites of a particular profession. It is part of everyday practice. It is part of just being people. And in the context of this interview, it would be very difficult for me to explain all that; it would be a very significant aside. But just taking that statement as it is then. If the goal is to enable people to practice the mode of law that Indigenous law belongs to – and so, I call it “rooted law” – that is something that is applicable to their lives generally. All their relationships, every time they form a judgement. So, in that sense, I hope it has a broader impact on students’ lives.

Sejeong: I believe it’s a one-year course, right?

Aaron:  Yes, that’s right.

Sejeong: I assume that students may have not given you feedback yet on how they feel about the course or the course material. But would you like to share any responses or reactions from them?

Aaron: Sure. I have to be somewhat cautious because some of the students have had very powerful responses and, you know, have shared some quite powerful things in our circle. And it’s not for me to disclose their experience.

Sejeong: Right.

Aaron: But I found those moments really inspiring. And it’s the sort of thing that a professor only hopes might happen: that a student is really impacted by something. But yeah, I suppose that, you know, a number of students have expressed an enlarged capacity for thinking and acting about law, and not just in respect of Indigenous peoples. So, from my standpoint, that is quite an outstanding outcome.

Sejeong: Right, of course.

 Aaron: And they have voiced that sense of challenge. And they should! The course is designed so that we produce meaning together. So, when they have little context of what we are talking about, participating effectively in it is quite overwhelming. And I’d say that a vast majority of the class felt that way about the first whole section of the course. And now, they have become quite masterful. (laugh)

Sejeong: (laugh) Are you hoping to be able to offer this course again in the future?

Aaron: Mhm, yeah! I still don’t know all those technical terms, but – at a couple of faculty council meetings ago, it was made a standard course. So, I am very thrilled about that.

Sejeong: Oh, congratulations!

 Aaron: Yeah. I am looking forward to offering it next year and in future years. Um… One little thought for the last question actually.

One of the real highlights for me was being able to bring two of the folks in my circle of Elders, Sherry Copenace and Harry Bone, into our class. And the interaction between the Elders and the students was outstanding. And they continued reflective engagement even out of the class. Not just on the part of the students, but also the Elders! And so it was really magical, and I am just so thrilled to be at an institution that supports that, to have students who took that seriously and truly made the most of this experience. And what an amazing way to learn the law! (laugh)

Sejeong: Mhm, thank you so much! I don’t know whether there was anything additional you wanted to share or talk about?

 Aaron: No, I could probably talk about this course forever. (laugh)

During our small conversation after we ended the recording, Professor Mills added an additional comment:

When he was talking about his feeling of responsibility when teaching the course, it is also the responsibility he feels towards his Grandmother. He told me that a lot of his knowledge comes from his Grandmother’s teachings – the circle, for example. This also makes his teaching the course more special, because it allows him to “keep these [the teachings, what would be considered “the past”] alive and relevant today.”


Submissions by students of John Borrows’ Anishinaabe Law Outdoor Education Experience

Last August, McGill law students visited the Chippewas of Nawash First Nation on Georgian Bay to learn about Anishinaabe law in an intensive field course. The course was led by Professor John Borrows with the help of Elders and other community members, and took place on the land and water. For four days, students worked with different sources of Anishinaabe law found in traditional stories, the environment, treaties, declarations, and customs and learned about Indigenous legal traditions.

As part of the ILADA’s blog series on Indigenous languages and legal traditions, we asked the students to share their thoughts on the interconnection they observed between language and law during the field course.  The following are some of their reflections.


En août dernié, un groupe d’étudiants en droit à McGill ont visité la Première nation des Chippewas de Nawash sur la baie Georgienne pour apprendre davantage à propos du droit Anishinaabe lors d’un cours intensif sur terrain.  Professeur John Borrows a mené ce cours avec l’aide des Ainés de la communauté et cela a pris lieu sur la terre et dans l’eau.  Pendant quatre jours, les étudiants ont appris à propos des traditions juridiques autochtones en travaillant avec différentes sources du droit Anishinaabe qui se trouvent dans les histoires traditionnelles, dans l’environnement, dans les traités, les déclarations, et les coutumes.

Dans le cadre du premier thème du blog d’ILADA sur les langues et les traditions juridiques autochtones, nous avons invité ces étudiants à partager leurs pensées sur les connexions qu’ils ont remarquées entre la langue et le droit pendant ce cours intensif.  Les paragraphes qui suivent font état de leurs réflexions.

Students.jpg

André (3L)

The Anishinaabe law course at Nayaashiinigmiing pushes the boundaries of what law school offers students. A small group of us, from 2L to 4L, came together along the Western shores of Georgian Bay at summer’s end to listen and learn from nature and a community that has inseparable connection with their environment. The Anishinaabe law course required us to use our senses, it opened our minds and hearts to new epistemologies, and allowed for new relationships to emerge with our classmates, instructors, and the community.

One of the main lessons that I took away from the 4-day course was that Anishinaabe law and language are inextricably linked. Anishinaabe linguistic structure frames and delivers messages on how a community perceives the world around them. Examples of Anishinaabemowin (Anishinaabe language) were showcased time and time again over the intensive field course. Language and linguistics were emphasized in nearly every lesson, whether when deriving law from Anishinaabe stories or using Anishinaabemowin to describe the environment around us.

Professor John Borrows highlighted how the Anishinaabemowin language structure differed greatly from English and other Western languages. He also explained how language leads to disparate worldviews between the Anishinaabe and Westerners.  One example of this is that Western languages (e.g. English or French) view the world as inanimate, Indigenous languages view the world as animate. Both the noun-oriented language of English or French and the action-oriented Indigenous languages, such as Anishinaabemowin, breathe life into their respectful worldviews.

“Indigenous legal traditions are best accessed in the context of language, stories, methods of communication, and styles of performance and discourse because these are mediums that frame understanding and encode values.”

– Sákéj Youngblood Henderson

The ways in which Western and Indigenous cultures form and value relationships with people, objects, and environment are fundamentally different. For Anishinaabe, the distinction between natural objects and humans are seldom made; therefore, Anishinaabemowin reflects the relationship that the Anishinaabe have with the world around them. These relationships, in turn, form the laws that govern Anishinaabe way of life. It is these relationships that shape concepts of law and governance.

Over the course of the four days, it became clear to me that the rhetoric of Anishinaabemowin implicitly manifests Anishinaabe law and that, in the end of it all, the two cannot truly exist without each other.

Yulia (2L)

To say that Indigenous languages and laws are intertwined would be an understatement. We had multiple occasions to understand this close relationship between the two while on the field course in Neyaashiinigmiing. Anishinabemowin is so rich in verbs,  and even nouns tell stories that naturally translate into legal principles. For instance, I particularly enjoyed my process of coming to understand land, which in the Western worldview is seen as property and an indication of one’s social status, as a source of law. Even with the shortcomings of translation, it was extremely helpful to know that the word “land” in Anishinabemowin, ‘akinoomaagewin’, is a combination of the words “Earth” and “to teach”, which is interpreted as “earth as teacher.”

I am grateful for the opportunity to see the application of legal principles but also for the realization that sources of law and guiding principles are everywhere individuals can identify them: in the water, land, plants, animals, songs, dances, everyday life situations. In short, it was challenging yet inspiring to view the world around us as resource for reasoning and a tool for teaching. This, I think, can only be achieved by being in harmony and a loving relationship with one’s surroundings, and more fundamentally, with oneself, because, as our firekeeper Ken said, we are already given everything we need.

Heather (2L)

In my experience, language has often been an afterthought in legal education; a way of articulating law, but not an integral part of the process of law itself. Aside from the few occasions where McGill’s bilingual environment had me translating legal terminology between French and English, I took for granted that the language I used to talk about law was commonly understood and distinct from the law itself.

It was surprising then, when within the first few hours of arriving at Neyaashiinigmiing, we were introduced to Anishinaabemowin, the language of the Anishinaabe nation. Lessons in language came up just as naturally and as often as teachings about legal actors and sources of law. Over the course of the few days I spent there, I realized that it’s actually quite difficult to conceive of Law without seeing how it relates to language, and vice versa.

Understanding just the bare basics of Anishinaabemowin has helped me grasp some of the foundational elements of Anishinaabe law. Anishinaabemowin is a verb-based language (and therefore quite different from English, which is noun-based), which means that action and relationship are emphasized. Noun forms are generally conveyed by joining together verbs, adding prefixes and suffixes, and creating descriptive phrases. My favourite example is the word for blueberry pie, miini-baashkiminasigani-biitoosijigani-bakwezhigan, which roughly translates to “exploding blueberry sauce-layered between bread-old Frenchman-bending over oven.” It’s quite a vivid picture! The use of compound words like this produces a language that highlights processes and relationships between different elements – a pie is nothing without the process of bending over an oven – and paints a picture of an animated world in constant movement. Full of descriptive words and relational phrases, it reflects a particular pattern of living and of practicing law.

I came away from this experience with the realization that Anishinaabe law is not an inert system of rules that is imposed on a community, but rather an intellectual and personal process. “Law” might be better understood as a verb, something that people do in relationship with one another, rather than a noun.

Breanne (2L)

One thing that really struck me was the extent to which law and language are indivisible. Law exists within language, and language is both a source of law and a medium of sharing law. I noticed that this made for a lawful community- there seemed to be an overall sense of familiarity with law because it is so deeply embedded within language. For me, this was a sharp contrast to the common law and civil law, which consists of largely unfamiliar terminology and jargon.

The relationship between law and language inspired me to be mindful about more than what was being said. To learn Anishinaabe law, I felt that I had to think holistically about language. I thought about why someone would choose to say something, how they said it, who said it, etc.

Debbie (2L)

The importance of being humble was an underlying theme of the Anishinaabe law course. Humility was somehow woven into every story, song and ceremony, and even directly present in some of the translations of the word “Anishinaabe”. We learned that depending on how the components of the word are broken down, one can extract different meanings. “Anishinaabe” can be translated to mean “the pitiful people” (and being called “pitiful” is definitely the kind of thing that would humble you a little bit). However another meaning we can pull from the word “Anishinaabe” is “the good people”. Throughout the course I learned how those two translations, the pitiful people and the good people, could work together to form a beautiful picture of humility.