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‘Faint hope’: Court ruling a step towards keeping more Indigenous kids out of foster care

Click to play video: 'Federal Court upholds landmark compensation order for Indigenous children' Federal Court upholds landmark compensation order for Indigenous children
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A recent court ruling in favour of Indigenous children is an important step forward to keeping those kids out of the foster care system, advocates say.

In a judgment Wednesday, the Federal Court dismissed Ottawa’s attempts to appeal two rulings related to providing services and compensation to First Nations children.

“I am just so overjoyed that the children won again,” said Cindy Blackstock, who runs the First Nations Child and Family Caring Society (Caring Society).

“What the federal court said is that Canada’s failure to observe those tribunal rulings was wrong and they have to obey.”

Read more: Court rejects Ottawa’s appeal of First Nations compensation, Jordan’s Principle decisions

In September 2019, the Canadian Human Rights Tribunal ruled that the federal government hadn’t adequately funded child and family services — and that this lack of funding amounted to it “wilfully and recklessly” discriminating against Indigenous children living on reserve.

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In a bid to achieve some redress for this, the tribunal ordered Ottawa to pay $40,000 each to roughly 50,000 First Nations children and their relatives. This was one of the two rulings the Liberal government was appealing.

The other appeal related to a ruling in November 2020 that expanded the scope of Jordan’s Principle — a rule that pledges to provide First Nations children with the services they need, when they need them, rather than first taking the time to sort out which level of government is responsible for the cost.

Should the government accept the court’s decision to reject their appeals and begin to implement the substance of both rulings, advocates say it could help to disrupt a vicious cycle of child apprehensions that are the result of this chronic underfunding of services.

“Because of that underfunding, there were higher rates of child apprehensions, so children being taken away from their families and communities and put into foster care, creating the foster care crisis that we have,” said Pam Palmater, who is a Mi’kmaq lawyer, professor and activist.

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Read more: Are the feds really ‘fighting Indigenous kids in court’? Here’s what we know

More than half of the children in foster care are Indigenous, according to figures from the federal government. That’s despite Indigenous people making up just over seven per cent of the under-14 population in Canada.

The conditions that cause so many Indigenous kids to land in the child welfare system are “related to the intractable legacies of residential schools including poverty, addictions, and domestic and sexual violence,” according to a Truth and Reconciliation Commission report.

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Many of these family separations could have been avoided, according to Blackstock, had the government adequately funded services for First Nations children.

“Families were separated unnecessarily,” she said.

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“The federal government that funds First Nations public services was doing so at such low levels families couldn’t recover from residential schools.”

Advocates say the ruling presents a “faint hope” that things will start to get better for these children.

“You cannot have one race, children from one race, one background (being) treated one way and being given a certain amount of resources, and another being given a different and higher amount of resources,” said Lynne Groulx, the CEO of the Native Women’s Association of Canada.

“It’s just simply discrimination and it’s systemic and it’s institutional and it needs to stop.”

Read more: ‘It doesn’t leave a person’: Residential schools aren’t ‘history’ for many, advocates say

Palmater said that even if the government doesn’t step up to the plate, each ruling in favour of these children helps to move the needle.

“I’m hopeful about changes going forward because of all of the victories that these kids have had,” she said.

“So although Canada doesn’t fully comply with all of the orders and continues to fight these kids in court — and lose every time — there have been some successes on the way, every time kids win in court.”

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It’s unclear what the next steps for the government will be and whether they’ll file an appeal of the decision. When Global News contacted Indigenous Services Minister Marc Miller with those questions, he said in a statement that Canada is “reviewing the Federal Court’s decision” and that “further information will be forthcoming.”

“Canada remains committed to compensating First Nations children who were removed from their families and communities and to continue implementing significant reform of the First Nation Child and Family Services Program, recognizing that class actions have been filed, including by the Assembly of First Nations and Moushoom,” he said.

“Jordan’s Principle continues to ensure that First Nations children can access the products, services and supports they need when they need them.”

Read more: More Indigenous family separations now than during residential schools, advocate says

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If the government does decide to head back to court, Groulx said she and other advocates like Blackstock will be ready to push back.

As for the kids who remain in foster care, Groulx said, “We love them, and we care for them, and we will fight for them — and for what is right.”

— with files from The Canadian Press

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