University of Alberta Faculty of Law Blog

Halloween Special: Culture or Costume?

Tansi Nîtôtemtik,

        Every Halloween season I feel myself holding my breath, waiting for the latest controversial costume to make its rounds online. The term “cultural appropriation” is quickly becoming a common topic of debate surrounding Halloween costumes. Most of us are familiar with this debate, but as costume shops continue to make money off highly offensive costumes, we are forced to continue the discussion, year after year. As we work towards reconciliation, I believe it is important to continue this discussion, and educate those unaware of the harms associated with wearing culturally offensive costumes this Halloween.

What is cultural appropriation?

        Susan Scafidi, author of "Who Owns Culture? Appropriation and Authenticity in American Law," defines cultural appropriation as:

“Taking intellectual property, traditional knowledge, cultural expressions, or artifacts from someone else's culture without permission. This can include unauthorized use of another culture's dance, dress, music, language, folklore, cuisine, traditional medicine, religious symbols, etc. It's most likely to be harmful when the source community is a minority group that has been oppressed or exploited in other ways or when the object of appropriation is particularly sensitive, e.g. sacred objects.” [1]

Why do we care?

        For the most part, those wearing these inappropriate costumes are largely unaware of the deeply-rooted problems behind why, for example, dressing up as an “Indian Princess,” is offensive. Our blogging on topics such as Residential Schools and the Sixties Scoop have demonstrated the harms associated with government policies focused on “getting rid of the Indian problem”. These policies have led to a disconnect for many from their cultures, languages, and traditional teachings. Aggravating this disconnect are the Halloween  “hollywood” versions of Indigenous men as violent warriors, and the overt sexualization of Indigenous women (i.e. Pocahontas as“Poca-hottie”). These costumes strengthen the barriers to reconciliation by continuing harmful stereotypes of Indigenous persons, many who are still recovering from past trauma inflicted by Canada’s assimilationist policies.

Appreciation vs. appropriation

        For some, their costume may be specifically aimed at “appreciating” the culture in question rather than “appropriating.” For those unsure, consider the following:

“You can appreciate another’s culture without trying to be it or imitate it [...]Whenever you see someone’s culture and you decide you want to perform it, that’s when it becomes a problem. That has nothing to do with whether you appreciate it.” [2]

        I will not be one to turn away allies who want to appreciate my culture, but be respectful that my culture is more than a costume. If you truly want to appreciate my culture, come to my community for a round dance or pow wow. Let our elders tell you stories, and teach you the real meaning of our people -- not the “hollywood” version.

Until next time,

Team ReconciliAction YEG

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[1] Nadra Kareem Nittle, “Introduction to Cultural Appropriation”, ThoughtCo. (11 October 2017), online:<https://www.thoughtco.com/cultural-appropriation-and-why-iits-wrong-2834561>.

[2] Mark Shrayber, “It’s Time We Have A Real Talk About Culture-Based Halloween Costumes,” Uproxx (01 October 2017), online: <http://uproxx.com/life/halloween-appropriation/>.

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Indigenous Child Welfare & the Criminal (In)Justice System

Tansi Nîtôtemtik,

        The image above depicts two brothers; one confined in a group home, the other incarcerated in a prison.[1] It perfectly portrays the parallels in and connections between Indigenous experiences with Canada’s child welfare and criminal justice systems. These systems are intertwined and unfortunately, “participation in one often leads to contact with the other.”[2]

        Aging out of the child welfare system, many Indigenous youth are left with a strong sense of injustice stemming from a host of factors. Being taken from or left in situations of harm can lead to unresolved and unaddressed trauma; frequent movements from one place to another can sow the seed for reasonable distrust of institutions; and there are often no long-term tracking mechanisms or support systems to assist with the transition out of care and into adulthood.[3] Further, a “lack of Indigenous cultural education while in care fosters a deep feeling of cultural disenfranchisement and loss of identity, particularly for those children placed in non-Indigenous homes.”[4] These issues combine with systemic racism to ensure a seamless transition from one system to the next.

        Systemic racism is often used to explain the overrepresentation of Indigenous peoples in the criminal justice system.[5] It is “produced through a combination of social constructions of races as real, different and unequal (racialization); the norms, processes and service delivery of a social system (structure); and the actions and decisions of people who work for social systems (personnel).”[6] Systemic racism has reared its ugly head in many ways. For Donald Marshall Jr., it led to 11 years in jail for a crime for which he should never have been a suspect. For others, it has meant life behind bars.

        Although it should not come as a shock to anyone that Indigenous peoples “continue to encounter a criminal justice system in which they do not receive justice,”[7] somehow it still does. Part of systemic racism is the attempt to pretend it does not exist, but the law and legal process undeniably affect Indigenous peoples differently than others:

“At every step, discriminatory practices and a biased system work against an Indigenous accused, from the moment a person is first identified by police, to their appearance before a judge, to their hearing before a parole board. The evidence is unambiguous: If you happen to be Indigenous, justice in Canada is not blind.”[8]

Until systemic racism is taken out of the equation, it is unlikely this will change.

        Come back tomorrow for a special Halloween post! Then, on Wednesday, we continue our exploration of issues related to Indigenous peoples and the criminal justice system.

Until next time,

Team ReconciliAction YEG

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[1] Art by Kelly Mellings, in Patti LaBoucane-Benson, The Outside Circle (Toronto, House of Anansi Press: 2015) at 20.

[2] The Action Group on Access to Justice (TAG) and Law Society of Upper Canada, Indigenous Justice: Examining the Over-Representation of Indigenous Children and Youth (Toronto: Law Foundation of Ontario, 2016) at 2.

[3] Ibid, at 14.

[4] Ibid, at 14.

[5] John Borrows and Leonard Rotman, Aboriginal Legal Issues: Cases Materials & Commentary (Markham: LexisNexis, 2012) at 1059.

[6] Ibid, at 1059.

[7] Ibid, at 1143.

[8] Nancy Macdonald, Maclean’s Magazine, “Canada’s prisons are the ‘new residential schools’.” (February 18, 2016), online: http://www.macleans.ca/news/canada/canadas-prisons-are-the-new-residential-schools/.

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In Memory of Wicapi Omani (Gord Downie): An Ally in Reconciliation

^{Image retrieved from: http://www.cbc.ca/news/politics/gord-downie-tragically-hip-afn-honoured-1.3883618}

Tansi Nîtôtemtik,

    Cramped into a small airplane seat, I read my texts before taking off for this year’s Indigenous Bar Association (IBA) Conference in Halifax, Nova Scotia. This year’s topic being, “Ankukamkewey: Joining Together in Peace and Friendship.” A text from my husband read, “Gord Downie passed away.”

    Losing an Indigenous ally is hard in a society that is largely unaware, or indifferent to the movement of reconciliation. However, we look to the legacy Gord Downie has left behind, and we recognize his tireless efforts in fighting for reconciliation when I’m sure all his body felt like doing was resting.     

    A year ago, Downie released his fifth and final solo album, Secret Path. Secret Path was part of a larger project involving an animated film, graphic novel, and concept album based on the story of Chanie Wenjack. Wenjak was Ojibway, who at twelve years old ran away from a Residential School in northern Ontario. The distance to his home community was roughly 600 km. He didn’t make it home (like many other children who attempted to run away from Residential Schools), eventually dying from hunger and cold exposure.¹     

    The release of Secret Path was later accompanied by the “Gord Downie and Chanie Wenjack Fund”, created to “jumpstart reconciliation between Indigenous and non-Indigenous people.”² The idea to create the fund followed a life changing trip by the Downie brothers to Ogoki Post, Ontario, to visit Chanie’s mother, Pearl Wenjack.³ “There are three components to the initiative: Support of the Winnipeg-based National Centre for Truth and Reconciliation; education (involving the incorporation of Secret Path into school curriculums); and something Mr. Downie calls reconcili-actions.” ⁴ These reconcili-actions being grants of up to $10,000 to fund grassroots projects working to further Indigenous rights.⁵    

    Downie was honoured in December of last year by the Assembly of First Nations for his work on reconciliation. He was given the Lakota spirit name, “Wicapi Omani,” meaning “man who walks among the stars.”⁶  

    Travelling to the IBA Conference, I realized that Downie truly embodied the title, “Joining Together in Peace and Friendship.” He joined Indigenous people as an ally, a peace-maker, and a friend. As a nehiyaw (Cree), I thank Gord Downie for being a voice of advocacy for Indigenous issues, and for helping to bridge the path in reconciliation between Canada’s Indigenous and non-Indigenous.     

Ay ay Wicapi Omani.

 

Until next time,

Team ReconciliAction YEG

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[1] Brad Wheeler, “Gord Downie’s dedication to Indigenous issues lives on”, The Globe and Mail (19 October 2017), online:<https://beta.theglobeandmail.com/arts/music/gord-downies-dedication-to-indigenous-issues-lives-on/article36673092/?ref=http://www.theglobeandmail.com&>.

[2] Rahul Kalvapalle, “Gord Downie remembered for contributions to Indigenous reconciliation,” Global News (18 October 2017), online:<https://globalnews.ca/news/3810533/gord-downie-indigenous-reconciliation/>.

[3] Wheeler, supra note 1.

[4] Ibid.

[5] Kalvapalle, supra note 2.

[6] Michael Barclay, “Remembering the life and legacy of The Tragically Hip frontman”, Macleans (18 October 2017), online:<http://www.macleans.ca/gord-downie-obituary/>.

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Indian and Northern Affairs Canada: The Modern Indian Agent?

Tansi Nîtôtemtik,

        On January 26, 2016, a monumental case was decided by the Canadian Human Rights Tribunal regarding the current state of First Nations children in care[1]. Dr. Cindy Blackstock, Executive Director of the First Nations and Family Caring Society (FNFCS) spearheaded the lawsuit beginning in February 2007. FNFCS along with the Assembly of First Nations (AFN) alleged that Aboriginal Affairs and Northern Development Canada (AANDC; now known as Indian and Northern Affairs Canada, INAC) “discriminates in providing child and family services to First Nations on reserve and in the Yukon, on the basis of race and/or national or ethnic origin, by providing inequitable and insufficient funding for those services.”[2]

        The Tribunal in its recent decision found that the federal government has a fiduciary duty to First Nations to ensure the safety and well-being of children on reserves and to provide child and family services that are comparable to Canadian children who are off-reserves[3]. The Tribunal declared that AANDC has failed to meet these goals by failing to provide appropriate funding to FNFCS and other programs, which has ultimately adversely affected First Nation communities[4].

        This decision came after a thorough consideration of Jordan’s Principle and an analysis of the current state of the child welfare system where AANDC has an obligation to First Nations children. Jordan’s Principle, as we discussed yesterday, is a “child-first principle” which directs that the government power or department that receives a request for children’s services funding will pay out the funds first and then address jurisdictional issues later[5]. The goal is to meet the best interests of the child without removing them from their homes, without delay, and ensuring essential public services are made available. In this case, AANDC and Health Canada claimed that Jordan’s principle is not a child welfare concept, but applies only to First Nations children with multiple disabilities, and therefore is not applicable to the FNFCS program[6]. The Tribunal disagreed with this narrow interpretation, declaring that Jordan’s Principle applies to all First Nations children[7]. AANDC’s unwillingness to provide adequate funding has gone against the goals of Jordan’s principle, resulting in the removal of children from their homes, once again giving Canada the false impression that the best interests of Indigenous children requires removing them from their homes.

        Only time will tell if this decision will truly impact the state of child welfare for First Nations children. Truthfully, this is only the tip of the iceberg. Funding needs to be made available to these programs. Inquiries and requests for services need to be taken seriously by the government. The Labrador Innu, for example, have continued to have their children displaced and Justin Trudeau’s Federal Government has yet to agree to partake in a national inquiry[8]. Both Canadian federal and provincial governments have a responsibility to step up and address the gaps created solely by a government system that has spent hundreds of years focusing on removing Indigenous children from their homes.

Until next time,

Team ReconciliAction YEG

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[1] First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2

[2] Ibid at para 6.

[3] Ibid at para 383.

[4] Ibid at para 383.

[5] Ibid at para 351.

[6] Ibid at para 358.

[7] Ibid at para 382.

[8] Maggie Wente, “Labrador Innu Child Welfare Inquiry” (Indigenous Bar Assocation Conference, Ankukamkewey: Joining Together in Peace and Friendship) delivered in Halifax, Nova Scotia, 21 October 2017) [unpublished].

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Jordan’s Principle: Is the government truly putting the child first?

Tansi Nîtôtemtik,

Jordan’s Principle is the federal government’s answer to disagreements about who should fund care of Indigenous children. The principle is: instead of disagreeing about which government should pay for the service, the service is provided and paid for by the government that is approached first.[1] Once the child’s health or service is taken care of, the two levels of government can work out if the proper government paid for the service, or if one government should be reimbursed by the other. The goal is that Indigenous children can access services at the same standard as non-Indigenous children without delay.[2]

Where did the principle come from?

The principle was announced as a motion in Parliament by NDP member Jean Crowder, and was unanimously agreed upon by the House of Commons in December 2007.[3] However, the government’s recognition of the principle only happened after the tragic story of the principle’s namesake, Jordan River Anderson.

Jordan was a First Nations child from Norway House Cree Nation in Manitoba. He was born with complicated medical needs that could not be treated on-reserve. He stayed in the hospital as a young child, but after two years, he was approved by doctors to move to a home with required home-care.[4] However, the provincial and federal governments could not agree who would foot the bill, and he remained in hospital care until the end of his life.

Two years later, he died still in hospital at the age of 5. He never got the chance to live in a home because the government could not decide who would pay for his home-care.[5] He waited, his family waited, and his community waited, and the government could not provide an answer until he had tragically already passed away. His story, and the countless other stories like his, forced the government to accept that they needed to agree to Jordan’s Principle.[6]

What are the ongoing problems with the principle in practice?

There is still a question as to whether Jordan’s Principle is actually being followed, with strong arguments for the “no” side. The TRC made one of their Calls to Action that the government “fully” implement Jordan’s Principle.[7]

Jordan’s Principle has recently been called a “failure” by Professor Leroy Bear from the University of Lethbridge. The principle sounds like a good idea: putting the child first by streamlining the funding process so that jurisdiction problems can be solved without a child’s care on the line. However, Professor Bear argues the principle has not been able to overcome the ongoing jurisdictional problems.[8]

A 2016 documentary by Alanis Obomsawin, We Can't Make the Same Mistake Twice, argues that the federal government has resisted applying Jordan's Principle -- to the extent that the $11-million fund set aside to cover its costs was never used.[9] As well, in September of 2016, the Canadian Human Rights Tribunal ruled that Canada failed to properly implement Jordan’s Principle, calling Canada’s actions “unlawful and discriminatory”, issuing three compliance orders.[10]

Although putting the child first is a logical, seemingly straightforward, and imperative step to take for the protection, well-being and equality of Indigenous children, the government has failed to take that step. If even one Indigenous child is delayed or denied healthcare treatment because of bureaucracy and ongoing red tape, the principle is not being followed, and the government is, quite simply, not doing its job. Tomorrow, we will discuss a recent case in which the Canadian Human Rights Tribunal declared that the federal government has failed to provide adequate care to First Nations children under Jordan’s Principle.

 

Until next time,

Team ReconciliAction YEG

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[1] First Nations Child & Caring Society of Canada, “Jordan’s Principle”, online: <fncaringsociety.com/jordans-principle>.

[2] Ibid.

[3] First Nations Child & Caring Society of Canada, “Motion no. 296 in support of Jordan’s Principle”, online: <https://fncaringsociety.com/jordans-principle/motion296>.

[4] Supra, note 1.

[5] Ibid.

[6] Ibid.

[7] Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada), 2015 at 1.

[8] Chris Stewart, “Professor at Alberta conference says Jordan’s Principle ‘a failure’”, APTN National News (19 October 2017), online: <aptnnews.ca/2017/10/19/professor-at-alberta-conference-says-jordans-principle-a-failure/>.

[9] Kate Taylor, “We Can’t Make the Same Mistake Twice exposes Canada’s barriers to reconciliation”, Globe and Mail (21 October 2016), online: <www.theglobeandmail.com/arts/film/film-reviews/we-cant-make-the-same-mistake-twice-exposes-canadas-barriers-to-reconciliation/article32459440/>.

[10] Supra, note 8.

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Ohpikihawasowin (the raising of children)

Tansi Nîtôtemtik,

    Today we continue with the topic of Indigenous child welfare, and current challenges for Indigenous children, families, and communities that are involved in the child welfare system. To reiterate the numbers - roughly 70% of children in care in Alberta are Indigenous; however, they make up only 10% of the children living within Alberta.¹

    As was discussed yesterday, if a child is in need of intervention, decisions must be made in the “best interests of the child.” This test is outlined in the Child, Youth and Family Enhancement Act, section 2, “Matters to be Considered.” This is the relevant legislation with respect to child intervention and protection in Alberta. The child’s Indigenous culture is one of the sixteen matters to be considered in this section. Another matter to be considered pursuant to section 2(a) is “the family is the basic unit of society and its well-being should be supported and preserved.” I suggest by supporting Indigenous families and communities in becoming healthy, we move towards meeting the best interests of the child, and ultimately the goal of reconciliation.

    In today’s post, we look to specific Indigenous supports that are currently set up by and for Indigenous people to help address the challenges that result in this overrepresentation, with a view towards bringing our children home:

    Bachelor of Indigenous Social Work (BISW) degrees are offered at a handful of schools across Canada. For example, the University of Regina’s BISW is a four-year undergraduate degree program offered through the School of Indigenous Social Work at the First Nations University of Canada. “Programs in Indigenous Social Work provide specialized training for social workers who plan to work in Aboriginal communities, taking into consideration Indigenous knowledge, values and cultures.”² This program is also now offered at Maskwacis Cultural College, which is located approximately one hour south of Edmonton.

    Various organizations and programs are in place for children and families that are sensitive to Indigenous culture. The Bent Arrow Healing Society offers a variety of programs for Edmonton’s urban Indigenous population, with the mission statement to “build on the strengths of Aboriginal children, youth, and their families to enable them to develop spiritually, emotionally, physically, and mentally so they can walk proudly in both the Aboriginal and non-Aboriginal communities.”³ The Ben Calf Robe Society, named after a Blackfoot elder and residential school survivor, also offers Indigenous oriented supports and programs. Some of these programs include: Ketotayminawok (focused on in-home family support), and Kichi Awasisak (family health and parenting).⁴ The Canadian Native Friendship Centre offers supports for Indigenous children in care, where they can learn traditional dancing, the Cree language, and traditional arts & crafts.⁵ The Métis Child and Family Services Society is also a support worth noting, focusing on the health and well-being of Métis families and communities.⁶

    Delivery of child intervention services on-Reserve is done through one of seventeen Delegated First Nation Agencies (DFNA) within Alberta.⁷ These Agencies receive their authority through a tripartite agreement involving: (i) the First Nations Agency, who delivers the services; (ii) the Federal government, who provides the funding; and, (iii) the Province, who delegates the legal authority to provide child intervention services to the Agency. The DFNAs provide intervention services within the geographical boundary of that specific Reserve. As an Indigenous blogger, I truly believe the DFNAs are in place to protect their children in care and support their families. They affirm Indigenous children’s beliefs and birthrights, as well as strive to preserve and protect their treaty rights, customs, traditions, language and heritage within their own home communities.

    There’s no such thing as a perfect system, but these Indigenous-led initiatives are trying to make it better for Indigenous children and their families by being culturally sensitive and empathetic in light of the distinct nature of Indigenous child welfare. 

 

Until next time,

Team ReconciliAction YEG

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[1] Auditor General of Alberta, Report of the Auditor General of Alberta: Human Services Systems to Deliver Child and Family Services to Indigenous Children in Alberta (July 2016) at 2 [2016 AG Report].

[2] University of Regina, Faculty of Social Work (Regina: University of Regina, 2017), online: <https://www.uregina.ca/socialwork/programs/>.

[3] Bent Arrow Traditional Healing Society, Home (Edmonton: Bent Arrow Traditional Healing Society, 2017), online: <http://bentarrow.ca>.

[4] Ben Calf Robe Society, Home (Edmonton: Ben Calf Robe Society, 2017), online: <http://bcrsociety.ab.ca>.

[5] The Canadian Native Friendship Centre, Canadian Native Friendship Centre Programs (Edmonton: The Canadian Native Friendship Centre, 2017), online: <http://www.cnfc.ca/aboriginal-programs-edmonton-native-centre>.

[6] Metis Child and Family Services Society, Home (Edmonton: Metis Child and Family Services Society, 2017), online: <http://www.metischild.com/Site_2/Home.html>.

[7] Government of Alberta, Delegated First Nation Agencies (Alberta: Government of Alberta, 2014), online: <http://www.humanservices.alberta.ca/family-community/15540.html>.

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Intergenerational Injustice & Indigenous Child Welfare

“Above all else, the legacy of Canadian government intervention in the lives of Aboriginal children has been one of loss. The most public of these losses have been the absolute losses: those Aboriginal children who have died while in government care. However, as government policies shift to an increasing emphasis on keeping Aboriginal children in Aboriginal families, and as community control over children's services increases, there have been some equally public deaths of Aboriginal children in the care of Aboriginal families or Aboriginal agencies, with accompanying losses of a less permanent and public kind.”[1]

Tansi Nîtôtemtik,

        It is not difficult to see the cumulative effect that the residential school system and the Sixties Scoop have had on generations of Indigenous families. However, in this country’s current system of child welfare, all of its partners are implicated in allowing harm to come to Indigenous children.

        Three main partners are engaged in the delivery of services to Indigenous children in Alberta: Delegated First Nations Agencies (DFNAs), the provincial government, and the federal government. DFNAs are independently run but generally funded by the federal government. Funding for children on reserves also comes from the federal government (albeit, in a manner proven to be discriminatory and chronically lacking when compared to funding for children living off reserve).[2] Finally, the provincial government is financially responsible for all children in the province, but not for children on reserves.

        The Department of Human Services (DHS) is one of these partners. Although providing services for Indigenous children is only part of its mandate, First Nations, Metis, and Inuit children are “overrepresented in the system by a factor of seven.”[3] This means that approximately 70% of children and youth in care in Alberta are Indigenous, a percentage even more shocking when considered in light of the fact that only 10% of the children living in Alberta are Indigenous.[4] The following chart is useful in understanding the average number of Indigenous children who are part of the child welfare system in Alberta every month:[5]

These numbers are too high. In fact, over 3x more Indigenous children are in the care of DFNAs and provincial agencies now than were in residential schools at the height of their operation.[6] How is this possible?

        Answering this question brings us back to the concept of the ‘best interests of the child’ introduced last week. Moving out of the context of the Sixties Scoop, and into contemporary judicial and legislative use of the term in today’s courtrooms, the best interests of the child test continues to be interpreted and applied in often problematic ways. In Alberta, custody of a child is governed by the definition of a child’s best interests provided in the Family Law Act. Section 18(2) outlines a list of 21 factors to be considered as a part of this test.

        Often, when it comes to the custody of Indigenous children, priority is given to one or another of these factors (for example, culture or safety) in ways that fail the child involved. Critiques of related case law provide additional reason for the test to be applied cautiously; decision-makers often collapse race and Indigeneity into a single consideration in a way that erases and ignores crucial distinctions between the experiences of Indigenous and other racialized peoples in this country.

        It is clear that even in its modern manifestations, the best interests of the child test is failing Indigenous children. We can and need to do better, but how? A potential step is to consider additional factors that are obviously relevant in the context of Indigenous children, for example:

• the historical and social context of Indigenous child welfare (think residential schools and the Sixties Scoop);
• racism;
• community survival (courts have overlooked what happens to a community when its children are apprehended en masse);
• poverty; and
• community traumatization (contributed to by issues such as lateral violence).[7]

Perhaps if these elements of intergenerational injustice were factored into the test, Indigenous children might not constitute over 70% of the children in care in this province. Perhaps if we stop placing financial concerns and political statements ahead of their interests, Indigenous children might not be the ones made to suffer. With all that is stake, isn't it worth a try?

        Our posts this week will focus on contemporary challenges in Indigenous child welfare. Tomorrow, we explore examples of Indigenous-led child welfare initiatives in Alberta. On Wednesday, we discuss Jordan’s Principle and what happens when governments engage in jurisdictional battles of ‘It’s not our problem.’ On Thursday, we examine Cindy Blackstock’s tireless advocacy on behalf of Indigenous children. Don’t miss out!

Until next time,

Team ReconciliAction YEG

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[1] Hadley Friedland, “Tragic Choices and the Division of Sorrow: Speaking About Race, Culture, and Community Traumatization in the Lives of Children” (2009) Can Journal of Family Law 25 at 224-225.

[2] See First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2.

[3] Auditor General of Alberta, Report of the Auditor General of Alberta: Human Services Systems to Deliver Child and Family Services to Indigenous Children in Alberta (July 2016) at 2 [2016 AG Report].

[4] See Department of Human Services, Child Intervention Information and Statistics Summary 2015-2016 4th Quarter (March) Update.

[5] 2016 AG Report, supra note 3 at 11.

[6] John Borrows and Leonard Rotman, Aboriginal Legal Issues: Cases Materials & Commentary (Markham: LexisNexis, 2012) at 888.

[7] See Friedland, supra note 1 at 245.

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In the Media: Settlement Reached for (some) Sixties Scoop Survivors

Tansi Nîtôtemtik,

Catriona Charlie, a victim of the Sixties Scoop, reacts while listening to the details of the court case in Ottawa. (Retrieved from The Globe and Mail, online: <www.theglobeandmail.com/news/politics/ottawa-to-settle-sixties-scoop-suits-for-hundreds-of-millions-of-dollars/article36502465/>.)

Across Canada on October 5th, 2017, the media announced that the federal government had reached a settlement with a majority of ongoing Sixties Scoop class action claims. How did this settlement come to be?

Judicial history:

18 class action suits across the provinces were initiated in 2010 by Indigenous survivors of the Sixties Scoop. They were suing the government for damages incurred from being removed from their homes as children. In Brown v. Attorney General of Canada, a decision from the Superior Court of Ontario, the class action suit alleged that: “many of these children lost their identity as Aboriginal persons, and their connection to their Aboriginal culture, that ultimately led to them suffering emotional, psychological and spiritual harm. More specifically, it is alleged that these children were deprived of their culture, customs, traditions, language and spirituality. This led them to experience loss of self-esteem, identity crisis and trauma in trying to reclaim their lost culture and traditions.” [1] The survivors claimed that the Sixties Scoop was Canada “wrongfully [delegating] its exclusive responsibility as guardian, trustee, protector, and fiduciary of aboriginal persons” to the provinces, and alleged both a breach of fiduciary duty and negligence.[2] In this decision, the court rejected an application from Canada to dismiss the class action suit. [3]

Negotiations and settlement:

The dismissal of Canada’s appeal to the Ontario Superior Court required a settlement be reached between Canada and the claimants, the survivors of the Scoop. Based on the Brown decision released in February 2017, Canada entered into negotiations to resolve all (or most) of the class-actions currently taking place across the country, and announced the settlement on October 5, 2017.[4]

Each survivor will receive $50,000 -- the initial cap that has been placed on the funds. The settlement itself is projected to cost the federal government $550 to $800 million, depending on how many victims come forward.[5] Estimates range from 5,000 to 30,000 individuals, but as noted with the IAP Payments blog post, these are only estimated numbers. The compensation amounts exclude lawyer fees; lawyer fees will be paid out of a separate fund and equate to 10-15% of the compensation given to the victim in question.[6]

Reactions:

This settlement is with a majority of the class action suits, but only includes First Nations and Inuit individuals. Métis victims of the Scoop have expressed they feel left out, and should not have been excluded from the settlement.[7] The government’s argument is that during the 1960s-1990s, the Métis and non-status Indians were not recognized by the federal government as being holders of Indigenous rights, so they had no role in putting Métis children in care.[8] Therefore, the federal government is requiring the provinces to bear some of the cost of settling the Métis claims, and has not reached an agreement yet.[9]

For the survivors covered by the agreement, there are mixed reactions as well. Money cannot heal the wounds of the victims that became lost, without culture, without language, and without community for much of their lives. Adam North Peigan, president of the Sixties Scoop Indigenous Society of Alberta, shared this comment with CBC News:

    "It's impossible to put a dollar amount on the trauma and amount of atrocities survivors have had to endure," he said.     "There's a lot of disbelief among survivors in Alberta. There's a sense of elation, but also disappointment." [10]

Chief Marcia Brown Martel, the lead plaintiff in the Ontario case, said she "feels lighter."

    "I feel that the work that has taken [place] over these 12-13 years, 13 years, that is starting to come to fruition. It means     that Canada will honour its children. It means that the harms that have been perpetuated and been allowed to happen in     this country, that those days are coming to a close." [11]

Until next time,

Team ReconciliAction YEG

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[1] Brown v Attorney General of Canada, 2014 ONSC 6967 at para 2.

[2] Ibid at para 12.

[3] Ibid at paras 39-46.

[4] Blair Gable, “Ottawa to settle Sixties Scoop lawsuits for hundreds of millions of dollars”, The Globe and Mail (5 October 2017), online: <www.theglobeandmail.com/news/politics/ottawa-to-settle-sixties-scoop-suits-for-hundreds-of-millions-of-dollars/article36502465/>.

[5] Ibid.

[6] Ibid.

[7] Gloria Galloway, “Métis say they should not have been left out of Sixties Scoop compensation”, The Globe and Mail (10 October 2017), online: <www.theglobeandmail.com/news/politics/metis-say-they-should-not-have-been-left-out-of-sixties-scoop-compensation/article36536782>.

[8] Ibid.

[9] Ibid.

[10] Elisha Dacey, “Sixties Scoop survivors say $800M proposed settlement won’t heal their wounds”, CBC News (6 October 2017), online: <www.cbc.ca/news/indigenous/sixties-scoop-reaction-mixed-1.4343760.>

[11] Ibid.

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The Sixties Scoop: Art and Reclamation

“It can be challenging for Canadians to come to terms with all this painful history. Film and storytelling can help people better understand what happened to Indigenous families and communities as a result of colonial policies.” – Tasha Hubbard, Cree/Saulteaux filmmaker[1]

Tansi Nîtôtemtik,

        The Sixties Scoop remains a dark period in Canada’s history and it carried on far beyond the sixties. There was no end date, no date in which the government announced the achievement of its assimilation goals, and no definitive act ending the pain endured for decades: “like a chameleon, these forms of oppression simply change their appearance and continue on.”[2] In the early 2000s, approximately 40% of the youth in foster care were identified as Aboriginal.[3] Though the numbers remain alarming and the effects of this era are chilling, what cannot be lost in this discussion is the stories of hope and resilience that come from survivors.

        Tasha Hubbard was only three months old when she was taken from her family through a government-sanctioned program called AIM (Adopt Indian Métis children) during the Sixties Scoop.[4] She reconnected with her birth family when she was sixteen and is now a talented filmmaker residing in Saskatoon.[5] In 2016, she produced a film, “Birth of a Family”, documenting the lives of three sisters and one brother who were removed from their mother between 1955 to 1985.[6] As Betty Ann, Esther, Rosalie, and Ben all meet each other for the first time, the film documents the process as the siblings connect as adults and after spending their childhood in foster care. The trailer can be found online here.

        George Littlechild was four years old when he was taken away from his family. Throughout his childhood, he lived with five different foster families, often enduring racism and physical abuse.[7] He spent 11 years trying to find his family, discovering that his mother was from Maskwacis, Alberta, but had passed away, his father had passed away in Vancouver, and he has four sibling who were also placed into care. In 1996, Littlechild created his first multimedia installation, Displaced Indians: Sixties Scoop, which uses art as a form of “resistance” and “transformation.”[8]

This past April, Urban Shaman in Winnipeg hosted Canada’s first Sixties Scoop art exhibition, A Place Between. The exhibition featured 24 artists, most who have their own experiences with the Sixties Scoop, including work from Hubbard, Littlechild, and Traverse. The exhibition took a community approach prior to its debut, hosting conversations with the community so that there was a place for safe discussion and mitigating the risk of re-traumatizing attendees.[9]

        Jackie Traverse is an Indigenous artist from Lake St. Martin, Winnipeg. Many of her pieces focus on her experiences with the Sixties Scoop, including “Two Scoops” and “Empty”, which is a dedication to her estranged mother.[10] A clip of “Two Scoops” can be seen below:

[Two Scoops (clip) from WFG Distribution on Vimeo.]

        We encourage you to take a closer look at these storytellers and their projects. We also encourage you to comment on this post if you know of any other creative projects related to the Sixties Scoop so that these stories can be heard and not forgotten.

Until next time,

Team ReconciliActionYEG

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[1] Phillip Lewis, “Fixing the Gaze: New Indigenous Work at the NFB”, National Film Board, blog, January 5, 2017 http://blog.nfb.ca/blog/2017/01/05/fixing-the-gaze-2/

[2] Ralph Bodor, Rochelle Lamourex, Holly Biggs, “Bringing Home the Kids” Rural Social Work and Community Practice, Volume 14 Issue 2, December 2009 at 12

[3] Ibid, at 12.

[4] Joanna Deerchild, “Filmmaker Tasha Hubbard's personal connection to the Sixties Scoop”, Unreserved, CBC Radio, April 23, 2017 http://www.cbc.ca/radio/unreserved/reclaiming-retelling-and-revisioning-indigenous-stories-1.4079554/filmmaker-tasha-hubbard-s-personal-connection-to-the-sixties-scoop-1.4080128

[5] Ibid

[6] Tasha Hubbard, “Birth of a Family”, National Film Board

[7] Portia Priegert, “Winnipeg Project Looks at the Sixties Scoop”, Galleries West, April 10, 2017 http://www.gallerieswest.ca/artists/previews/george-littlechild-and-the-sixties-scoop/

[8] Ibid

[9] Leah Sandals, “Winnipeg to Host Canada’s First Big Sixties Scoop Art Exhibition”, Canadian Art, March 21, 2017 http://canadianart.ca/news/a-place-between-60s-scoop-art-show/

[10] “2014 Rising Star Jackie Traverse” Uniquely Manitoba http://www.uniquelymanitoba.ca/resources/pages/files/risingstar/RS%20Jackietraverse.pdf

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Part II: Personal Effects of the Sixties Scoop

Tansi Nîtôtemtik,

This is Part 2 of a 2-part series. To see Part 1, please click here.

Sixties Scoop survivors Dave Herman, Kathy Hamelin, Lena Wildman, Adam North-Piegan and Sharon Gladue-Paskimin, left to right, gather before meeting with provincial officials at the Alberta Legislative Building in Edmonton on June 14. (Retrieved from CBC News, online: <http://www.cbc.ca/news/indigenous/sixties-scoop-reaction-mixed-1.4343760>).  

        As mentioned in yesterday’s blog, the government-imposed Sixties Scoop was a catastrophic event for both Indigenous children and also their communities.

        Throughout the process of the Truth and Reconciliation Commission, survivors told their stories of abuse from residential schools, but also abuse from child welfare agencies involved in the Sixties Scoop. [1] Just as psychological and sexual abuse was rampant in the residential school system, so it was in the child welfare system that Indigenous children were placed into. During the Commission, many stories were told of foster parents who sexually abused the children, while teaching them that Indigenous people were dirty, drunks, and all-around “really horrible people.”[2]  These children were caught in a void: they were not white, but they could not have been and should not have been Indigenous, either.

        One survivor shared her story of foster home abuse with the Commission. While in the home, her Aboriginal identity was constantly disparaged and she was “singled out” because she was “not as white as the others”:

“[They were] adamant about Aboriginal culture being less than human, living as dirty bush people, eating rats. It made me not want to be one of those people. And for years, I didn’t know how to be proud of who I was because I didn’t know who I was.””[3]

        After leaving the government-imposed foster care, the negative effects on the survivors did not end there. They felt displaced and alienated.[4]  These effects compounded with feelings of lost identity, psychological effects, and reactions to the constant disparagement of both themselves and their culture. They suffered from a lack of connection with their cultural community [5].

        The negative effects continued -- the Sixties Scoop did not only affect the children who were taken but has had intergenerational effects, causing more and more children to be caught in the void. As the survivors grew up and had their own children, they were unable to pass on the culture and language that they had been restricted from, continuing the cycle of lost Indigenous identity.

        The recent settlement agreement has been met with mixed reaction from victims of the sixties scoop. Can a monetary settlement heal their wounds? Some survivors have expressed, not entirely because healing will be a lifelong process that will take various forms. [6] Others are looking at the agreement positively, as an acknowledgment of the wrongs that were done throughout the Sixties Scoop program.[7] For more on the settlement, look forward to a dedicated ‘In the Media’ post on Friday.

 Until next time,

Team ReconciliAction YEG

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[1] Truth and Reconciliation Commission of Canada, “Volume 5: The Legacy” in The Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 16 [“TRC: The Legacy”].

[2] Ibid at 17.

[3] Ibid.

[4] Ibid.

[5] Ibid at 15.

[6] Elisha Dacey, “Sixties Scoop survivors say $800M proposed settlement won’t heal their wounds”, CBC News (6 October 2017), online: <http://www.cbc.ca/news/indigenous/sixties-scoop-reaction-mixed-1.4343760.>

[7] Ibid.

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Part I: Sixties Scoop

^{Retrieved from: http://www.ammsa.com/publications/ontario-birchbark/sixties-scoop-rally-takes-toronto-streets}

Tansi Nîtôtemtik,

        Although the Sixties Scoop is a chapter of Canada’s dark history, many Canadians are unaware of the child welfare policy that continued the country’s assimilation of Indigenous children. So, what is the Sixties Scoop, and why should we as Canadians care about a child welfare policy from the 60s? I’m sure we’re all familiar with those ignorant comments posted in the latest news story on Indigenous issues: “this happened so long ago, who cares? Get over it.” To answer simply, we care – and you should too. For those willing to listen, we continue to explore the Sixties Scoop of Indigenous children, and its continuing legacy within the child welfare system of today.

        Let’s start with the term: “Sixties Scoop.” In 1983, Patrick Johnson, a researcher for the Canadian Council on Social Development, first presented the term, “Sixties Scoop” in a report that explored the mass apprehension of Indigenous children from their homes and communities and into the child welfare system during the 60s. The phrase was based on prior comments of a child-protection worker who wrote social workers “would literally scoop the children from reserves on the slightest pretext.” ¹

        This “scoop” of Indigenous children into child welfare resulted in an issue of overrepresentation within the system. The TRC’s summary of the final report gives further insight into this overrepresentation: “In 1977, Aboriginal children accounted for 44% of the children in care in Alberta, 51% of the children in care in Saskatchewan, and 60% of the children in care in Manitoba.” ² In terms of sheer number, the Canadian Press estimated 20,000 children were taken from their homes from the 1960s to the 1980s and were adopted by non-Aboriginal middle-class families.³

        The mass number of Indigenous children entering the child welfare system were oftentimes removed from their homes because proper care was based on middle-class Euro-Canadian values. Social workers did not have specific training for Indigenous communities and children, and thus were not familiar with their unique cultures and history. “For example, when social workers entered the homes of families subsisting on a traditional Aboriginal diet of dried game, fish, and berries, and didn’t see fridges or cupboards stocked in typical Euro-Canadian fashion, they assumed that the adults in the home were not providing for their children.” ⁴ In addition, social problems within the reserve communities, such as poverty, unemployment, and addiction (many of which were directly linked to the abuses and neglect of the residential school system) led the social workers to believe they needed to “protect” the children. Many poverty-stricken families, that otherwise provided caring homes, watched as their children were taken from them with little-to-no warning and no consent.⁵

        The foster parents that the children were then placed with were never given information on the children’s heritage, culture, Indian status, or the benefits they were entitled to receive with such status. Children lost contact with their birth families, were often split up from their siblings, and suffered a vast disconnect from their culture, language, and identity. This loss of Indigenous identity following the Sixties Scoop resulted in high suicide rates, unemployment, substance abuse and mental disorders as these children aged into adulthood.⁶

        Tomorrow’s post will give you a closer look at the personal impacts of the Sixties Scoop on the children apprehended during this epidemic, and the effects of this policy on their lives today. Although the Sixties Scoop is a part of Canada’s history, we begin to understand that what has happened in the past, continues to live on into our present.

Until next time,

Team ReconciliAction YEG

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[1] Rachel Shabalin, “The "Sixties Scoop": A Dark Chapter in Canadian History” (2017) 41:4 Lawnow 1 at 2.

[2] Truth and Reconciliation Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada), 2017, at page 72.

[3] Michael Ireland, “60s ‘Scoop kids’ bear emotional scars and want apology” (2014) 34:6 Indian Life at 1.

[4] Erin Hanson, Sixties Scoop (BC: First Nations Studies Program, 2009), online: Indigenous Foundations  <http://indigenousfoundations.arts.ubc.ca/sixties_scoop/>.

[5] Ibid.

[6] Shabalin, supra note 1.

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Assimilative Euphemisms: An Introduction to the Sixties Scoop

Tansi Nîtôtemtik,

        Frighteningly, in the context of the Sixties Scoop, 'the best interests of the Indigenous child' appears to have been a euphemized version of the phrase and policy 'kill the Indian in child.'

        The forcible removal of Indigenous children from their families and communities did not end with residential schools. As the efficacy of the schools began to be questioned in the 1950s and 1960s, the policy’s aims were given new life in a process now known as the “Sixties Scoop.”[1] This practice was widespread across the country from the 1960s to the 1980s and was accomplished through the efforts of child welfare workers who ‘scooped up’ Indigenous children and placed them with non-Indigenous foster and adoptive parents.”[2]

        Rationalized using many of the same colonial narratives as were used in support of residential schools, removal was framed as necessary in order to “save Indigenous children from unhealthy communities.”[3] Actors in the child welfare system defended their actions by referring to the ‘best interests of the child,’ but in reality, those scooped were often subjected to abuse and neglect, or put to work in the households and farms of non-Indigenous families.

        Much ink has been spilled to show the various ways that, both during and after the Sixties Scoop, the best interests of the child test has been used to make the “operation of child welfare law ‘appear natural, necessary, and legitimate, rather than coercive and destructive,’ and has served to constrain judicial decision-making so as to minimize, and even negate the relevance and importance of maintaining a child’s First Nations identity and culture.”[4]

        Even towards the end of the Sixties Scoop era, Canadian case law demonstrates disturbing connotations associated with the phrase. Racine v Woods dealt with an Indigenous mother (herself a victim of the Sixties Scoop) with a young daughter temporarily placed in foster care.[5] The mother’s attempts to reclaim her daughter were ultimately unsuccessful and the foster family’s adoption application was granted. The case more or less states that when it comes to Indigenous children, “the importance of culture diminishes over time and that bonding to adoptive or foster parents becomes more important.”[6]

        What remains unsaid, however, is more worrisome: that is, “the underlying notion that with time, First Nations and Aboriginal peoples can somehow become less Indigenous; that, with time, Indigeneity somehow becomes less constitutive and important; that, with time, if First Nations and Aboriginal children are separated from their families and communities, they can be ‘successfully assimilated.’”[7] The assimilative undertones that go hand in hand with Indigenous child welfare can thus be traced through residential schools, into the Sixties Scoop, and still further on into current challenges that exist in this area of the law.

Join us this week as we explore the Sixties Scoop from its beginnings through to the upcoming 2017 settlement agreement.

Until next time,

Team ReconciliAction YEG

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[1] See Patrick Johnston, Native Children and the Child Welfare System (Ottawa: Canadian Council on Social Development, 1983).

[2] Holly A. McKenzie, Colleen Varcoe, Annette J. Brown & Linda Day, “Disrupting the Continuities Among Residential Schools, the Sixties Scoop, and Child Welfare: An Analysis of Colonial and Neocolonial Discourses” (2016) International Indigenous Policy Journal 4:2 at 2.

[3] Ibid, at 3.

[4] Marlee Kline, cited in Ardith Walkem, Wrapping Our Ways Around Them: Aboriginal Communities and the Child, Family and Community Services Act (CFCSA) Guidebook (Lytton: ShchEma-mee.tkt Project, 2015) at 30.

[5] See Racine v Woods, [1983] SCJ No. 70, 2 SCR 173.

[6] Walkem, supra note 4 at 31.

[7] Ibid, at 30.

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In the Media: Last Week in Edmonton

Tansi Nîtôtemtik,

        On October 4, the University of Alberta’s Faculty of Arts hosted What Comes Next: Political Afterlives of the Truth and Reconciliation Commission. The roundtable discussion featured big names (Glen Coulthard, Audra Simpson, and Robert Nichols), and even bigger ideas. Of particular note was the panel’s focus on the dark side of reconciliation – a dark side that, like last week’s terrorist attack, is generally not an issue most Canadians expect.

        Nichols drew a parallel between the ‘Jewish Question,’ and the Holocaust it enabled, to the ways in which Canada has been working to solve its ‘Indian Problem.’ He encouraged attendees to consider that what we are really dealing with in this country is a white supremacy problem. He also discussed the inherent contradictions in Canada’s political and juridical systems that make the framework of reconciliation at best, weak, and at worst, useless. After all, how can a country, whose capitalistic economy is based on continuous acquisition and growth, honestly accommodate Aboriginal title? As Nichols suggested, “it might not be possible.”[1]

        “Reconciliation,” Simpson explained, “is simultaneously impossible and irresistible.”[2] She noted that rather than being a meaningful tool for moving forward, Canada’s reconciliation project is instead a strategic and re-subjectifying political tool being wielded against Indigenous peoples and keeping them “in their place, as wounded.”[3] It is cunningly constructed to ensure that anyone who speaks out against reconciliation is placed in an antagonistic position to former students of residential schools and accordingly critics become the villains in a twisted trick of fate. Simpson’s conclusion was that reconciliation is simply the government’s latest attempt to make Indigenous peoples disappear.

        Like Simpson, Coulthard focused on alternative ways of looking at reconciliation. In his opinion, however, the apparatus of reconciliation was crafted to pacify Indigenous peoples following the Oka Crisis and the Red Power movements that gained international attention in the 70s, 80s, and 90s. Institutional reconciliation was “deployed”[4] as a means of subduing Indigenous militancy and calming the economic uncertainty that accompanied it. The language of reconciliation, Coulthard further argued, pathologizes Indigenous peoples and replaces the need for political reorganization with a need for healing. He advocated the development of a “combative consciousness”[5] as opposed to giving in to patriarchal, capitalist, state control. Ultimately, Coulthard admitted, he is more interested in the “political pre-lives of reconciliation”[6] than he is with the afterlife.

        The panelists were, in plainest terms, bad-ass. Their observations served as an important wake-up call for those of us who work within the context of the TRC, reminding attendees that in some ways, reconciliation can itself be a “mechanism of violence.”[7] Many thanks to the inspiring speakers and to the political science students and faculty members that made it happen.

Until next time,

Team ReconciliAction YEG

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[1] Robert Nichols, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[2] Audra Simpson, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[3] Ibid.

[4] Glen Coulthard, (What Comes Next: Political Afterlives of the Truth and Reconciliation Commission Event, delivered at the University of Alberta, Edmonton, 4 October 2017) [unpublished].

[5] Ibid.

[6] Ibid.

[7] Ibid.

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IRSSA: The Dollar Value of Abuse

Tansi Nîtôtemtik,

        Rather than resulting in joy and excitement, the IRSSA’s payouts to Indigenous groups or individuals have generally been met with frustration and disappointment. This is because the traumas of residential school remain and the losses suffered are far greater than any dollar amount can cover. Despite this reality, it is important to know how many claims have been made, paid out, and what has been missed throughout this process. It is only when we understand the efforts that have been made through this system of resolution that can we determine if settlements like the IRSSA are the appropriate mechanism to address the harms done or if the government needs to do more.

        As previously discussed, two main routes for monetary compensation came out of the IRSSA: the Common Experience Payment (CEP), allowing all students who attended residential schools to make claims for loss of culture, language, and minor sufferings; and the Independent Assessment Process (IAP), which addresses claims of sexual assault and physical abuse by students or other staff[1]. The deadline to file for these claims was September 19, 2011 for the CEP and September 19, 2012 for the IAP. In Alberta, 12,236 claims were eligible under the CEP regime, accounting for 16% of IAP claims across Canada; and 6,694 were admitted under the IAP regime, accounting for 21% of CEP claims made across Canada[2]. Despite that five years has since passed and some of these claims date more than 50 years back, there are still over 900 claims waiting to be processed.

Table from: Truth and Reconciliation Commission of Canada, infra, at 404

        To give you an idea of how much has been accomplished through CEP, 105,530 applications were received since implementation in 2007[3]. Of these claims, 79,309 claims have been paid out. The average payment to a claimant is $20,457, and a total of $1,622,422,106 has been paid overall. In 2011, an excess of $40 million remained in the original CEP trust fund, and as such became available for claimants to access up to $3,000 in non-cash Personal Credits for educational purposes at approved education facilities. This amount was exceeded in March 2016.

        Under the IAP, 38,099 claims were filed and 37,194 of those have been resolved[4]. $3.133 billion has been paid out, averaging $111,758 per survivor. Survivors are compensated based on the type of abuse inflicted and aggravating factors, such as witnessing another child’s abuse or subjection to religious doctrine during the abuse. The IRSSA also sets out “five levels of consequential harms” which sets out a hierarchy of harms and the ways in which it is manifested in order to determine compensation[5].

        An argument can certainly be made for the usefulness of statistics because of the difficult task our justice system undertakes when quantifying damages. However, it is important to recognize that these numbers only capture the claims made and cannot possibly address all of the harms caused by the Indian Residential School system. According to the Truth and Reconciliation Commission, the claims made through the IAP are equivalent to only 48% of the former students who were eligible to make claims[6]. Students who passed away prior to 2005 were ineligible to make claims at all because of the implementation date[7]. In analyzing the numbers, it is important to understand the pain that accompanies coming forward with your story in court, the indignation that comes from receiving a predetermined amount as a payment for lifelong harm, and the work that remains to be done to truly reconcile with survivors beyond a dollar figure.

Until Next time,

Team ReconciliActionYEG

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[1] Truth and Reconciliation Commission of Canada, “History: Part 2” in The Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 400

[2] Ibid at 401

[3] Canada, Indigenous and Northern Affairs Canada, Statistics on the Implementation of the Indian Residential Schools Settlement Agreement, August 2017 update.

[4] Indian Residential Schools Adjudication Secretariat, IAP Statistics, August 2017 update.

[5] Truth and Reconciliation Commission of Canada, supra, at 403-405.

[6] Truth and Reconciliation Commission of Canada, supra, at 400.

[7] Truth and Reconciliation Commission of Canada, supra, at 400.

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Residential School Survivors and the IAP

Tansi Nîtôtemtik,

When the Indian Residential Schools Settlement Agreement had finally been reached, how could the affected individuals actually get compensated? In the agreement, there were two categories of compensation: firstly, a payout that would go to all survivors of residential schools (so long as they provided proof of their attendance, and they attended a school listed in the agreement). This was the “Common Experience Payment”.[1]

Secondly, any of those who “suffered sexual abuse, serious physical abuse, or other wrongful acts that caused serious psychological consequences” could make an additional claim through the Independent Assessment Process. [2]  The claims were assessed on a points system: the worse the abuse endured by the survivor, the more points obtained throughout the claim assessment process. [3]

A guide to this process is outlined in this document, and the process itself is laid out in Schedule D of the Settlement Agreement.[4] Some key points from the process include:

• Non-adversarial: for the most part, this process was designed to be non-adversarial, with adjudication (decision-making) completed by neutral adjudicators. Some claims were even addressed without a hearing to make the process more streamlined. For very complex claims, the process could make its way to the courts if deemed necessary. [5]
• Lawyer retention: in the guide, applicants are strongly advised to retain a lawyer, with 15% being added to their claim’s compensation by the government to assist with legal fees. But this assistance with legal fees is only provided if the claim is successful, with nothing paid if the claim is unsuccessful.[6]
• Provision of documents: for the claims to be processed, individuals had to provide many different documents amounting to a mountain of paperwork. (This became a critique of the process, as detailed below). [7]
• Three streams: There were three options for an individual’s claim to be adjudicated: the standard track, the complex issues track, and the court track. The standard track is how most claims would be assessed, with the points system being used and a neutral-decision maker deciding on the compensation, with or without a hearing. The complex issues track would include claims that included income loss, or serious psychological consequences. Finally, the court track could be requested by the claimant if the issue was very complicated, or the compensation requested was more than the IAP allowed. [8]

When the process began, the government predicted there would be approximately 12,500 claims. However, this estimate was much too low, and the process became much more complex (and expensive) with the many survivors that came forward.[9] One major critique of the IAP was the extensive amount of paperwork that was required from survivors to bring their claims forward: tax returns, employment records, and criminal records, among others. [10] As well, although the long, extensive process was able to act as a band-aid solution for some survivors, there are still many that refused to come forward, or did not come forward before the deadline.[11]

The process cost approximately 3 times more than originally estimated by the government. When interviewed by the National Post, Kathleen Mahoney, a law professor at the University of Calgary who was chief negotiator for the Assembly of First Nations, had this to say:

    “Generally speaking, it’s been an incredibly successful process. And there’s no doubt it’s expensive, because when you     hurt somebody, it’s expensive. You just can’t walk away from that.” [12]

 

Until next time,

Team ReconciliAction YEG

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[1] Indian Residential Schools Settlement Agreement, (Ottawa: 2006 May 8) at 22. [IRSSA]

[2] Ibid at 24.

[3] Indian Residential Schools Settlement Agreement, Schedule D, s 2 [Schedule D].

[4] Ibid.

[5] Indian Residential Schools Adjudication Secretariat, Guide to the Independent Assessment Process Application, version 3.2 (Ottawa: 2013) at 3-5 [Guide].

[6] Ibid at 6.

[7] Ibid at 38-39.

[8] Ibid at 5.

[9] Maura Forrest, “'Abysmally off the mark': Residential school abuse process has tripled in costs to $3.1B”, The National Post (25 August 2017), online: <http://nationalpost.com/news/canada/abysmally-off-the-mark-residential-school-abuse-process-has-tripled-in-costs-and-taken-twice-as-long-to-resolve>.

[10] Ibid.

[11] Ibid.

[12] Ibid.

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Getting to the IRSSA

Image retrieved from: http://www.bwdsb.on.ca/bwdsb_Archives/I06069FB1?plugin=RWD&templates=RWD&

Tansi Nîtôtemtik, 

    The road to the implementation of the Indian Residential Schools Settlement Agreement (IRSSA) was a long, and often complex journey to ensure the dark legacy of the residential schools became a public issue. Several factors will be explored as we map out the pathway to the IRSSA, and what contributed to this major turning point in Indigenous and non-Indigenous relationships.

    First, the growth of national Aboriginal political organizations played a key role in advocating for justice. These organizations go back as far as 1919, and the F.O. Loft’s League of Indians of Canada. The National Indian Brotherhood (NIB) also played a major role as advocates, forcing the federal government to abandon the 1969 White Paper, as well as promoting their policy of “Indian Control of Indian education,” which was later adopted by the Canadian government. NIB is known today as the Assembly of First Nations. [1] Successes were also seen in land claims and court cases, such as the Inuit Tapirisat of Canada and the signing of Nunavut Land Claims Agreement, and the 1973 Calder Case on the validity of Aboriginal title. [2]

    Second, churches began to re-examine their relationships with Aboriginal peoples. A movement began in favour of inter-church cooperation and involvement in social issues dealing with Aboriginal peoples. An initiative called “Project North,” was created to persuade the government to respond to the impacts of the residential school system. A series of apologies were also made throughout the 80s and 90s. [3]   

    Third, survivors began to speak out on their experiences. Throughout the 1970s, survivors began publishing memoirs of their time in residential school, highlighting the harsh discipline and cultural alienation within the school walls, while also sharing their journey of healing. Aboriginal political organizations worked alongside survivors to document oral accounts of their traumatic experiences and the long term effects of isolation and addiction. Survivors were also coming together for support and creating associations for spiritual healing, to raise awareness and work towards a just resolution. [4]

    Fourth, the Royal Commission on Aboriginal Peoples, established in 1991, released their final report in 1996. The Commission was created in response to two major events: 1) Elijah Harper’s (an Aboriginal member of the Manitoba legislature) opposition to the Meech Lake Accord, which recognized Quebec as a distinct society within Canada. Harper argued Aboriginal people constituted a distinct society as well, and then Prime Minister, Brian Mulroney, proposed the Royal Commission in an effort to persuade Harper to consent to the accord (Harper never consented). And 2) the 1990 Oka Crisis, where the Kanesatake First Nation protested the decision to turn a Mohawk burial ground into a golf course. [5]   

    Fifth, civil cases were brought forward by former students in the late 1980s in an effort to seek compensation for the abuses suffered while in residential school. By 2001, more than 8,500 lawsuits were filed against the government, churches, related organizations and in some cases, the abuser themselves. However, many issues arose, such as the Statutes of Limitations, courts refusing to hear claims based on loss of family, culture and language, survivors forced to relive their traumatic experiences during cross-examinations, and legal disputes over who was financially responsible. [6]   

     Sixth, the Alternative Dispute Resolution Process (ADR). In November 2003, the federal Office of Indian Residential Schools Resolution began the ADR, a voluntary process to resolve claims of sexual abuse, physical abuse, and forcible confinement. This was a way to get away from the civil litigation process. However, the following year the AFN published an extremely critical assessment of the ADR process. The AFN report proposed a two-part approach to compensation instead: a lump sum for anyone who attended residential school, and an individual compensation program for those who had been physically or sexually abused. [7]

    Next, the availability of class-action lawsuits for survivors to pursue their claims following changes to Canadian law in the 1990s. [8] The Cloud case is an example of a class-action suit, which was overturned and certified by the Ontario Court of Appeal. [9]

    Lastly, following the rejection of the ADR process and the certification of the Cloud class-action suit, negotiations began for the IRSSA. An accord was signed on May 30, 2005, between the federal government and the AFN, headed by Phil Fontaine. In 2006, parties agreed to merge existing class-action suits into a single class-action, referred to as “Fontaine v Canada (Attorney General),” with Phil Fontaine acting as representative plaintiff for the survivors and the AFN. On November 20, 2005, Canada, the plaintiffs from the class-action suits, the AFN, the Inuvialuit Regional Corporation, the Makivik Corporation, and the Nunavut Tunngavik Inc., and representatives from various churches, signed an Agreement in Principle (AIP), which after further negotiations became the IRSSA, signed May 23, 2006. [10] 

Until next time,

Team ReconciliAction YEG

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[1] Truth and Reconciliation Commission of Canada, “History: Part 2” in The Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 552.

[2] Ibid at 553.

[3] Ibid at 554-55.

[4] Ibid at 556-57.

[5] Ibid at 558.

[6] Ibid at 560-61.

[7] Ibid at 564-65. 

[8] Ibid at 566. 

[9] Ibid at 570. 

[10] Ibid at 570-72.

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The Indian Residential Schools Settlement Agreement: An Introduction

Tansi Nîtôtemtik,

        The Indian Residential Schools Settlement Agreement (IRSSA) was negotiated in 2006 and formally implemented in 2007. It contains five core elements:

1. Common Experience Payment (CEP) – This element was available to eligible former students, but the onus was on the claimants to provide proof and verification that they had attended a residential school included in the agreement (not all schools were). The CEP was meant to cover claims for loss of language and culture, and for minor sufferings. Successful claimants were entitled to a base payment of $10,000 plus $3,000 for each year of attendance.[1]
2. Independent Assessment Process (IAP) – This element was available to former students who had been subjected to sexual abuse and/or serious physical abuse. Claims could be brought for sexual and physical assault committed by adult employees of residential schools; for sexual or physical assaults committed at a residential by one student against another where staff knew or should have known about the abuse; and for any other wrongful act committed by an adult at a residential school that resulted in serious psychological consequences.[2] If a former student wanted to pursue a specific abuse claim outside of the IAP, they were forced to opt out of IRSSA entirely and thus forfeit their CEP.
3. Healing Initiatives – Funds were donated to the Aboriginal Healing Foundation and the Indian Residential Schools Resolution Health Support Program.
4. Commemorative Activities – This element included installations or events that honoured former students and paid tribute in tangible ways. One example is the federal government’s so-called ‘Apology’ in 2008.[3]
5. Truth & Reconciliation Commission – This element resulted in the TRC Final Report, Executive Summary, and Calls to Action.

        Although some scholars argue that the settlement process provided a favourable alternative to adversarial litigation,[4] others are not so sure. Kent Roach, for example, identifies the ways in which the IRSSA, and the civil litigation and ADR processes that preceded it, “failed to appreciate the full scope of the harms of residential schools.” He postulates that these processes ultimately “re-victimized residential school survivors and downplayed the responsibility of Canadian governments, churches, and society for the harmful legacy of the schools”[5] through the incorporation of tort law principles.

        The tort law principle of causation requires a causal link be established between a wrongful act and a compensable harm. In IRS claims, causation has taken the form of arguments stipulating that harms suffered by former students were caused not by the abuses suffered in residential schools but rather by factors including the life choices of the claimant and members of their family.[6]

        In tort law, a wrongdoer is liable for a victim’s injuries even where those injuries are made worse by a preexisting condition. With this line of reasoning, the wrongdoer need only return the victim to their original position – the wrongdoer does not have to compensate the victim for effects they would have experienced whether or not the wrong was done.

        In the context of IRS claims, this principle (known as the ‘crumbling skull argument’) has been utilized by abusers in an attempt to frame claimants as having been damaged before they ever set foot in a residential school. These arguments “focused on family violence, alcoholism, and poverty”[7] and aimed to create an original position where Indigenous peoples were already injured, and already predisposed to the results of abuse.[8] In addition to creating a culture of victim-blaming, this type of argument effectively put claimants on trial in that they were burdened with disproving this presumed pathology.    

        Even at a macro level, the idea of providing cash for suffering is, in many ways, offensive. Some survivors have indicated that they feel the IRSSA and other mechanisms of compensation are means by which the government is paying for silence. It is important that we take a critical approach the IRSSA (whose interests did it really serve?), but at the end of the day, financial compensation is arguably better than nothing…

        The rest of this week’s posts will be dedicated to exploring how we arrived at the IRSSA, what the IAP entails, and the statistics surrounding the settlement process.

Until next time,

Team ReconciliAction YEG

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[1] Truth and Reconciliation Commission of Canada, “History: Part 2” in The Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 572.

[2] Government of Canada: Indigenous & Northern Affairs, “Indian Residential Schools” (2016), online: http://www.aadnc-aandc.gc.ca/eng/1100100015576/1100100015577#sect1. Accessed October 5, 2017.

[3] The image above shows Phil Fontaine and Stephen Harper participating in one of the IRSSA’s commemorative activities. Image taken from https://www.thestar.com/news/canada/2013/04/30/auditor_generals_report_2013_lack_of_cooperation_threatens_indian_residential_schools_agreement.html.

[4] See Kathleen Mahoney, “The Settlement Process: A Personal Reflection” (2014) U of T LJ 64:4.

[5] Kent Roach, “Blaming the Victim: Canadian Law, Causation, and Residential School” (2014) U of T LJ 64:4 at 566.

[6] Ibid, at 571.

[7] Ibid, at 575.

[8] Elizabeth Adjin-Tettey, “Righting Past Wrongs through Contextualization: Assessing Claims of Aboriginal Survivors of Historical and Institutional Abuses” (2007) Windsor YB Access to Justice 95:134 at 126.

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In the Media: Mandatory Indigenous Awareness Training for Government Employees

Tansi Nîtôtemtik!

Last week, the provincial NDP Government announced its plan to implement mandatory Indigenous Awareness training for public service employees. This initiative comes as a response to the TRC’s Call to Action number 57 which reads:

    “We call upon federal, provincial, territorial, and municipal governments to provide education to public servants on  the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.”[1]

Of course, this kind of plan does not come without criticism and resistance. Though some people have been introduced to some of this content in the past, many people have never received this kind of education or training. The education system in Alberta has been mostly absent of Indigenous education, which makes it challenging as adults to introduce a topic that continues to be contentious and problematic. Safe spaces for learning and teaching must be properly created so that the learning can be truly impactful.

While it is expected that there may be some resistance from government employees, resistance also comes from within Indigenous communities. With hundreds of years of forced assimilation at the hands of the government, it is not hard to understand why Indigenous peoples would distrust this kind of initiative. It is also a question of what kind really be accomplished with a training program when there is so much hardship and history that cannot simply be covered in one class.

So how do we truly complete acts of reconciliation if there is resistance from both sides? How do we avoid ‘band-aid solutions’ and truly address the harm done? What is most important is including Indigenous communities and individuals in the training and discussions. Bringing us back to the concept of Wahkohtowin, these courses cannot be taught from a solely non-Indigenous perspective, but instead rely on relationships with the community. If the government can understand that Indigenous culture and history cannot be taught simply in one afternoon using a PowerPoint or syllabus of topics, but by using community resources and expertise such as elders and community members, then impactful education may take place and the Call to Action may be appropriately met.

Until next time,

Team ReconciliActionYEG

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[1]  Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada), 2015, at page 7.

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Residential Schools: A Loss of Culture and Identity

Tansi Nîtôtemtik!

        The year 1996 does not seem all that long ago. If many of us can still feel nostalgia for the way things were when we were younger, it is no doubt that the experience of Residential Schools still impacts Indigenous peoples today. According to many survivors, it was not the horrors and abuses faced at the Residential Schools, but the loss of language and culture that was most painful.[1] The schools forbade speaking in any Indigenous languages and did not allow for any traditional practices. Students left these schools without any memory of their language and culture or learned that it was best to forget. Many students would return to their communities disconnected from their family, unable to communicate, and with no knowledge of traditional ways.[2]

The damage done by the Residential School system is described by Julia Rand as “institutionalization”[3]. Residential Schools stripped the identity of the individual by taking away culture and language, removing the traditional familial setting, and ensuring “total isolation from the community”[4], which, when combined, ultimately created a dependency on the institution. Much like in a prison, children who attended these schools were dependent on the authorities, who were usually clergymen or nuns acting as teachers. Though these “teachers” were also their abusers, they were the same people who would provide their basic needs. The abuse conditioned students to not question the rules and ensured the loss of language, culture, and family. Rand suggests that it is this process of institutionalization that promotes further re-institutionalization as survivors return to their communities without cultural connections and familial ties, and may ultimately find themselves in another institutional setting, such as the court system or the child welfare system.

        Although the topic of the Indian Residential School System can be very upsetting and reminds of us of a very dark time in recent history, it is important to remember that Residential Schools did not completely destroy Indigenous cultures or peoples. Many of those who attended Residential Schools do not wish to be portrayed as victims, but as resilient survivors[5] While we see the effects of the Residential School System in many facets of society, many survivors have gone on to share their stories, re-teach culture within their families and communities, and become leaders and educators.

Until next time,

ReconciliActionYEG

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[1] Zoe Oxaal, "Removing That Which Was Indian from the Plaintiff: Tort Recovery for Loss of Culture and Language in Residential Schools Litigation" (2005) 68.2 Saskatchewan Law Review at page 367 (EBSCOhost).

[2] Marlene Brant Castellano, "Healing Narratives: Recovery from Residential School Trauma" (2006/2007) 36:4 Transition Winter at page 3-6 (EBSCOhost).

[3] Julia Rand, "Residential Schools: Creating and Continuing Institutionalization among Aboriginal Peoples in Canada" (2011) 6:1 First Peoples Child & Family Review (EBSCOhost).

[4] ibid at page 60

[5] Castellano, supra at page 3

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What is intergenerational trauma?

Tansi Nîtôtemtik,

Researchers studying social issues affecting Indigenous communities have long been trying to find an explanation for rampant poverty, poor housing conditions, high rates of child welfare intervention, mental health issues, substance abuse, and homelessness.[1] Despite the studies done, researchers could still not seem to explain why these issues seemed to affect Indigenous people much more commonly than the general Canadian population -- until they considered the concept of intergenerational trauma (IGT).[2]

When groups are exposed to discrete or continuous collective trauma experiences, it affects them personally, and impacts their behaviour and relationships both within and outside of their community. IGT can be described as:

“...trauma that is passed down behaviourally to the next generation: if we’re angry and act angry all the time to others, our kids will think that’s normal and do the same. If we ignore each other and deprive each other of love and affection in our relationships, our kids see and feel that deprivation of love and might think it’s normal.”[3]

What caused intergenerational trauma for Indigenous people in Canada?

Continuous governmental intervention has affected many aspects of Indigenous peoples’ way of life, their communities, and family ties. These governmental interventions have ranged from disruptive policy decisions to destructive and catastrophic programs like Residential Schools.

Residential Schools are the primary source of IGT for Indigenous people in Canada.[4] The purpose of Residential Schools was to “kill the Indian in the child”, leaving the estimated 150,000 who attended these schools lost, ashamed, and uneducated.[5] By removing children from their parents, families, and communities, opportunities for the “transmission of family values, parenting knowledge, and community behaviour between generations” were diminished and more likely, extinguished.[6]

In a 1998 study, it was estimated that IGT would affect at least two generations of those who actually attended residential schools.[7] This means that not only do residential school survivors endure ongoing physical and mental health problems (because of the residential schools' abuses), but also that their children and grandchildren undoubtedly feel these effects as well.[8]

Moving Forward

The Canadian government has spent billions of dollars on band-aid solutions to address symptoms of intergenerational trauma (such as issues with child welfare, family violence, illness, and crime).[9]  It is problematic to agree on general principles or generalizations regarding IGT, as the personal experiences of each survivor are unique, and so are the symptoms affecting themselves and their children. Reconciliatory approaches to healing are being explored by some researchers, including things like an “Aboriginal healing model”, or a blend of “Aboriginal and western healing methods”.[10]

In considering the fact that the last Residential School closed its doors in 1996, and will likely affect at least two generations of those survivors, the effects of Residential Schools are not something of the past. Intergenerational trauma is a serious concern that must be considered while making reconciliatory efforts. We can only begin to address the inequalities on the surface by first working to heal the trauma underneath.

Until next time,

Team ReconciliAction YEG

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[1] Peter Menzies, “Developing an Aboriginal Healing Model for Intergenerational Trauma” (2008) International Journal of Health Promotion and Education 46:2 at 41.

[2] Ibid.

[3] Ibid.

[4] Amy Bombay, Kimberly Matheson & Hymie Anisman, “The intergenerational effects of Indian Residential Schools: Implications for the concept of historical trauma” (2014) 51:3 Transcultural Psychiatry 320 at 321-323.

[5] Ibid at 323.

[6] Menzies, supra note 1 at 42.

[7] Ibid; Bombay et al, supra note 4 at 323.

[8] Ibid.

[9] The Truth and Reconciliation Commission, Canada’s Residential Schools: The Legacy, Truth and Reconciliation Final Report, Volume 5. (Montreal:McGill-Queen’s University Press, 2015) at 9.

[10] Menzies, supra note 1; Marsh et al, “Blending Aboriginal and Western healing methods to treat intergenerational trauma with substance use disorder in Aboriginal peoples who live in Northeastern Ontario, Canada” (2015) 12:14 Harm Reduction Journal, online: <https://harmreductionjournal.biomedcentral.com/articles/10.1186/s12954-015-0046-1>.

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