Tracing settler state responsibility for structural harm: Canadian Human Rights Tribunal case on First Nations child welfare

ABSTRACT

This article discusses ideas of causation and responsibility for long-term, structural harm perpetuated through settler colonial institutions. Examining the case of a human rights complaint over discrimination of First Nation children in Canada’s child welfare system, the article looks at challenges of accommodating such complex harms in the framework of legal liability emphasizing immediate causation and impact. In 2016, the Canadian Human Rights Tribunal ruled that the federal government’s funding policy of child welfare services on First Nation reserves leads to disproportionate removals of children from their homes, and in 2019 it ordered the government to financially compensate children and caregivers impacted. According to the government's defense no direct connection could be proved between the funding policy and the removals, and harm resulting from the removals could only be assessed individually. The article traces how the decisions challenge these arguments by extending the scope of the harm at stake from individual removals to historical and ongoing formation of circumstances that make them happen. Setting the case in the historical context of intergenerational harm caused to First Nation kin and community relations by colonial policies, I suggest, the decisions challenge discourses that locate responsibility for such harms in the past.

KEYWORDS:

• Child welfare
• structural harm
• temporality
• responsibility
• settler colonialism

Introduction

In December 2021, the Canadian government announced a total of 40 billion dollars for compensation payments and systemic reforms of First Nations child welfare. Described by then-Minister of Crown-Indigenous Relations Marc Miller as the cost of ‘30 years of failure and discrimination toward Indigenous children in the child welfare system’,¹ the sum was to be divided between long-term systemic reforms and financial compensation for First Nation children removed from their homes through on-reserve child welfare services. This announcement had been preceded by 14 years of court battle by the federal government against a human rights complaint filed by First Nation Child and Family Caring Society of Canada (Caring Society) and Assembly of First Nations (AFN) for discrimination against First Nation children in the child welfare system. According to the complainants, underfunding of preventative services on reserves had subjected First Nation children to disproportionate removals from their homes and communities. The complaint also addressed delays and denials of essential services for children living on reserves resulting from jurisdictional disputes between federal and provincial governments, calling for implementation of Jordan’s Principle that would determine the government department first contacted in such case to pay for the service.²

Examining two particular rulings of the Canadian Human Rights Tribunal (CHRT) on this case, this article discusses challenges of assigning causation and liability for long-term structural harm in the context of a settler colonial state institution. While the full scope of the case is broader, the article focuses on the disputes concerning liability of the federal government for the disproportionate apprehensions traced to underfunding of preventative services.

In 2016 the CHRT ruled in favor of the complaint, finding the federal First Nation Child and Family Services (FNCFS) program as discriminatory in leading to disproportionate apprehensions of children living on reserves. According to the CHRT, by underfunding preventative services while covering out-of-home-placements by actual costs, the program ‘incentivized’ apprehensions of children. The program, the decision stated, was thus failing its purpose of providing culturally appropriate services for children and families on reserves that would be ‘reasonably comparable’ to provincial services available to families off-reserve. The decision also identified lack of coordination between different federal service programs as leading to gaps, denials and delays of services for children on reserves.³ Moreover, it found that the program’s funding formula failed to address ‘distinct needs and circumstances of First Nation children and families’, including ‘historical disadvantage’ caused by earlier colonial policies. In fact, the decision found the program as actively perpetuating this disadvantage.⁴

The CHRT ordered the government to end its discriminatory practice by reforming the FNCFS program and fully implementing Jordan’s Principle.⁵ This initial ruling has been followed by 24 further orders addressing its different aspects and requiring stronger effort from the government to cease the discriminatory practices identified in the initial ruling.⁶ In addition to the initial 2016 ruling, this article focuses particularly on a 2019 decision that ordered the government to compensate children removed from their homes through on-reserve child welfare, who experienced delays or denials of essential services or were placed in out-of-home care to access those, and caregiving parents or grandparents of such children.⁷

A major dispute in the case was whether a direct connection could be proved between the FNCFS program and the disproportionate apprehensions, and whether the resulting harm justified compensation of individual children and caregivers. The government’s defense had argued that no such connection could be proved, and no individual compensation could be awarded without assessing circumstances of each removal and its impact on the child. The CHRT rejected this argument in the 2019 decision that found removals of First Nation children from their families as harmful by definition, pointing at evidence presented to it of adverse impacts of child removal on both individual and communal level.⁸ In 2021, the government appealed the compensation order, but the Federal Court upheld the CHRT’s decision.⁹

In late 2021, the government and the complainants entered negotiations to have the case settled along with two class action lawsuits equally concerned with removals of children through on-reserve child welfare.¹⁰ The initial settlement agreement that was under negotiation at the time of the government’s compensation announcement in December 2021, however, did not offer closure on the dispute over compensation. The proposal, prepared by the government and the AFN, excluded certain groups entitled to compensation in the 2019 CHRT decision and decreased the amount of compensation to others. According to the CHRT, this conflicted with the purpose of its order that had been to remedy discrimination instead of assessing entitlement to compensation based on the degree of individual injury.¹¹ Final agreement was eventually approved by the CHRT in July 2023, with the formal order released in September.¹²

This paper examines the diverging interpretations of the nature and scope of the harm as articulated in the 2016 and 2019 CHRT decisions and the government’s counter arguments concerning causes and implications of the disproportionate apprehensions. I seek to illustrate how, in contrast to the government’s calls for proofs of direct causation and impacts, the CHRT’s interpretation suggests a broader perception of causation and liability both relationally and temporally. Drawing from discussions on harm, liability and temporalities of structural violence in political and legal anthropology and settler colonial studies, I will explore how the decisions look beyond immediate circumstances of families and child welfare agencies to how those have been shaped by past and ongoing policies of the settler colonial state. Here I will build on Richard Wilson’s work on court processes as sites of producing historical narratives and significance of historical contextualization in judging mass crimes.¹³

I want to acknowledge that this case situates as part of a broader history of settler state interventions on Indigenous kin and community relations, an experience of systemic harm that has been given voice by Indigenous activists, leaders, scholars and survivors of these policies.¹⁴ This experience is beyond my capacity and position to speak for as a non-Indigenous researcher. Rather, this paper seeks to offer a contribution to interrogation of policies and structures imposing settler state control on Indigenous relatedness and belonging. Not unique to Canada, targeted interventions on relations vital to continuity of Indigenous cultures and nations have been a central part of settler colonial and imperial projects globally. Ideas of Indigenous children as potentially easier to assimilate into expanding settler societies than adults have motivated policies of removing children from cultural influence of their families in case of Canada’s Indian Residential Schools, their counterparts in the United States, and policies of removing and replacing Aboriginal children in Australia.¹⁵

Past few decades have witnessed several settler states beginning to publicly address their colonial histories – often, as in Canada’s case with residential schools, with limited focus on specific policies and driven by advocacy and litigation by groups subjected to them.¹⁶ As Glen Coulthard has observed, these governments commonly tend to frame such histories as ‘legacies’ of past injustices while failing to address their structural continuities in the present.¹⁷ The government’s battle against the human rights complaint has been raised – also by the complainants themselves – as an illustrative example of the government promoting reconciliation while not just maintaining such continuities but actively challenging its accountability for them.¹⁸ In my analysis of the case, I will trace how the CHRT decisions establish it as a historical yet ongoing injustice for which the present state can be held accountable by pointing at how the FNCFS program responds to cumulated impacts of earlier colonial policies. This is how, I argue, the decisions disrupt the rhetoric situating responsibility for colonial harms in the past that characterizes settler state discourses of apology and reconciliation.¹⁹

First Nation children in the child welfare system: background of the complaint

First Nation children remain overrepresented in Canada’s child welfare systems. In 2019, the incidence rate of child maltreatment investigations leading to out-of-home placement per 1000 children was 12.9 times higher for First Nation children compared to non-Indigenous children.²⁰ The situation is traced to several intertwining factors that are, as authors of the report of the 2019 First Nations/Canadian Incidence Study on Reported Child Abuse and Neglect remind, inseparable of the broader context of ‘ongoing legacy of colonialism, discrimination, and structural inequities’. Recent social work scholarship identifies factors such as poverty, health inequality, lack of essential services and infrastructure on reserves, and impacts of earlier colonial policies on wellbeing of families and communities as contributing to ongoing disproportionate removals of First Nation children from their homes.²¹

In public discussion of the past few decades, intergenerational impacts of earlier experiences of child removal have become a dominant thread in explaining this overrepresentation of First Nation children. Dian Million and Krista Maxwell have traced this discourse of intergenerational trauma stemming particularly from residential school experiences to findings of the Royal Commission on Aboriginal Peoples (RCAP) in the 1990s, at a time when residential school survivors were increasingly bringing their experiences in public and suing the government and churches for abuse suffered in the schools.²² Final report of the RCAP connected collective experience of child removal with intergenerational harm on wellbeing of individuals, families and communities, a discourse that Million and Maxwell note has since come to guide government responses to ‘Indigenous social suffering’.²³

There is obviously no questioning of the experiences of survivors, their descendants and communities of the impacts the residential school system has had on them.²⁴ However, the way the concept of historical trauma has, as Maxwell argues, come to dominate professional discourses concerning challenges of Indigenous families, has been criticized for reducing their more complex historical and political context into psycho-social impacts of past wrongs. Several scholars have also argued that reducing overrepresentation of Indigenous children in child welfare to impacts of residential schools obscures the role of present-day neoliberal policies and systemic inequities in reproducing it.²⁵ The child welfare system itself has been criticized for decades by Indigenous leaders, advocates and scholars for maintaining the overrepresentation of Indigenous children in care and failing to respond to realities of families and communities.²⁶

Provincial child welfare systems gradually expanded to First Nation reserves on the second half of the twentieth century. In 1951, amendments to Indian Act ordered provincial laws concerning education, health and welfare to apply on reserves. However, division of responsibilities for funding and delivery of these services proved challenging. While the federal government signed a cost-sharing agreement with Ontario in 1965, in Alberta, Manitoba and Saskatchewan disputes over responsibility for services still in the 1970s and 1980s led to families on reserves receiving child welfare services only in ‘life-and-death’ situations. ‘Services’ in those cases often meant permanent removal of the child.²⁷ Reports compiled by Philip Hepworth and Patrick Johnston to the Canadian Council on Social Development in the early 1980s point to a steady increase of removals of First Nation children and their placements in mostly white adoptive or foster families as of the early 1960s.²⁸ While both reports associated this development with the above ‘jurisdictional disputes’, Johnston also suggested poor understanding of white social workers of culture and socioeconomic conditions of the communities as contributing to large-scale apprehensions he coined as the ‘Sixties Scoop’.²⁹

By the 1970s and 1980s, Indigenous leaders and advocates were vocally criticizing continuing removals of children from their communities, a practice some of them viewed as amounting to an attempt of genocide.³⁰ The idea of Indigenous-led services emerged in this context, as a part of tireless advocacy and protest by Indigenous leaders and organizations, such as Native Women's Associations, for Indigenous communities to reclaim control over how to protect their children. The aim of these initiatives was to develop culturally appropriate programs that would better respond to needs of communities. Some of the first such examples were a bylaw adopted by the Spallumcheen First Nation in British Columbia in 1980 to take over jurisdiction of their child welfare services, and Dakota-Ojibway Child and Family Services established by the Dakota-Ojibway Tribal Council in Manitoba in 1981.³¹

While Indigenous groups continued to establish their own child and family services, those services still mostly operated within the constraints of provincial legislation, apart from few exceptions like the Spallumcheen Band exercising jurisdiction over their services under a separate agreement.³² In 1991, the FNCFS program was established as a standardized federal funding model for agencies serving First Nation children and families on reserves, and for services delivered on reserves by provinces where such agencies did not exist.³³

Problems of this funding framework that were the target of the human rights complaint were raised in both internal and external reviews of the program already in the early 2000s. Their main criticism was that by funding maintenance of children in care by actual costs and everything else according to a fixed budget, the framework limits resources of agencies to provide preventative services.³⁴ These reviews situated the lack of preventative services in relation to what Loxley and DeRiviere in Wen:de: We Are Coming to the Light of Day, commissioned by the Caring Society, described as ‘socioeconomic hardships’ of communities, including poverty and substandard housing conditions. While acknowledging that reducing child welfare concerns in the communities would also require addressing these socioeconomic conditions, the authors highlighted them as illustrating the pressing need for provision of preventative services which, they stated, the funding formula did not encourage.³⁵

As of 2007, an updated funding framework was gradually introduced with an additional, separate funding stream for prevention. However, this addition turned out to offer little help as it was still based on a fixed budget, often not reflecting the actual needs of the agencies.³⁶

According to Cindy Blackstock, the lead representative of the complainants and the director of Caring Society, it was the government’s inability to respond to these findings that eventually made Caring Society and the AFN to file the human rights complaint.³⁷ Discussing the previous reports at length in the 2016 ruling, the CHRT came to the same conclusion; although the government had been aware of the inequities of the funding framework well before the complaint, it had failed to address them. This, according to the CHRT, made the case qualify as ‘wilful and reckless discrimination’.³⁸

Complex liabilities and temporality of structural violence

As has been observed in previous scholarship addressing temporalities of settler colonial structural violence, establishing a particular policy as a defining cause for certain condition of harm is challenging when its circumstances have been shaped by multiple colonial policies and systemic inequities over time.³⁹ As scholars such as Coulthard and Maxwell have argued in Canada’s context, responses of settler colonial states to contemporary struggles of Indigenous peoples have tended to situate them as impacts of past policies, thus distracting attention from complicity of present state actors and policies.⁴⁰ Obscuring of ongoing forms of structural harm perpetuated against Indigenous peoples through settler colonial institutions, in turn, allows reducing them into individual cases of misfortune or pathology and consequently reproduces colonial, paternalist discourses that justify state intervention on Indigenous affairs. Maxwell and Million, for example, note that too heavy reliance on the discourse of intergenerational trauma resulting from residential school experiences can contribute to re-justifying state interventions on Indigenous families and undermine Indigenous claims to self-determination.⁴¹

Discussing Australian politics regarding Aboriginal people, Elizabeth Povinelli draws attention to how accumulation of structural harm over time produces ongoing circumstances of disadvantage that come to appear as an unremarkable part of everyday life, thus easily escaping public attention. This, according to Povinelli, allows placing responsibility for those circumstances on the individual, their family history or cultural background rather than actions or inactions of the state.⁴² Povinelli and Das have called for attention in anthropological study of violence on such forms of violence that do not stand out from the ordinariness of the ‘everyday’ as distinctive ‘events’ but rather become constitutive of the everyday. Accumulating through interrelated instances of what Povinelli calls ‘quasi-events’ over an undefined period of time, such harm is difficult to accommodate with ideas of immediate causation and impact.⁴³

Similar arguments regarding temporality of harm have been raised in recent scholarship on genocidal violence and transitional justice in settler colonial context to challenge discourses that reduce long-term structural harm into isolated past events or policies. Such language, Woolford and Hounslow note in the context of Canada’s residential schools, delimits the scope of harm by detaching isolated moments ‘from broader continuities of settler-colonial processes’ they are part of. Alejandro Castillejo-Cuellar has similarly pointed at challenges of transitional justice framework in addressing such long-term continuities of structural violence that escape temporal boundaries entailed by the concept of ‘transition', suggesting to approach harm in such contexts as ‘accumulative’ over time. Pauline Wakeham suggests addressing such systemic continuities as ‘slow violence’; harm that is durative and structural rather than eventful, perpetuated through intersecting processes of settler colonial violence over time. Dylan Robinson suggests the same concept in his discussion on settler inaction regarding reconciliation in Canada and the failure of the state to address present forms of colonial harm from violence against Indigenous women to lack of clean drinking on water reserves, suggesting that also inaction can constitute ‘slow violence’.⁴⁴

Assigning responsibility for such long-term and complex forms of harm can prove particularly challenging in a legal setting that, as Julia Eckert notes, assumes evidence of immediate causation and impact in order to establish liability.⁴⁵ Earlier examples of this challenge can be found from litigations of residential school survivors in the 1990s and early 2000s against the Canadian government and churches for abuses suffered in the schools. In their analyses of such cases, Carole Blackburn and Jennifer Henderson draw attention to limits set by the legal context of tort law for how the harm experienced by the survivors could be framed. Blackburn points to how experienced loss of culture and language in the schools was reduced into an effect of abuse, tracing this to the way tort law assesses the degree of injury in relation to the state of the victim before the alleged harm occurred, thus requiring a direct connection between the injury and the defendant’s actions.⁴⁶ Henderson has observed how media discussion concerning these early lawsuits enforced this framing, reducing the violence of the system itself into isolated events of abuse. The harm was consequently articulated through discourse of individual trauma detached from its broader context of long-term colonial violence.⁴⁷

Political anthropologists have addressed challenges of accommodating large-scale and complex harms into legal frameworks of direct causation also in somewhat different contexts of global relations of capitalist production and material infrastructures where these harms are often produced in what Eckert and Knöpfel call ‘entanglements’ of relations, actors and institutions.⁴⁸ Drawing from Marilyn Strathern’s concept of ‘cutting the network’ that refers to limiting the scope of factors, actors and relations considered as contributing to a certain state of affairs, Eckert argues that legal definitions of liability ‘cut’ these networks short by only recognizing immediate causation. However, Eckert observes that social justice claims are increasingly embracing a more encompassing perception of relatedness and liability that extend to actions or failures to act that ‘enable rather than directly cause’ harm.⁴⁹ Stuart Kirsch has similarly observed how widening or narrowing the scope of events claimed to contribute to a harm serves as a strategy for claiming or limiting liability for circumstances that enabled it to happen.⁵⁰

In the following analysis I will examine how such strategies were employed in the government’s arguments attempting to ‘narrow’ its responsibility for First Nation child welfare, and how these arguments were challenged in the CHRT’s decisions. From there I will move on to discuss the diverging articulations of the scope of harm in this case, in relation to its historical contextualization in the decisions. Finally, I will examine the centrality of the concept of cumulative harm discussed in this section for the CHRT’s interpretations of the government’s liability, which I suggest appears significant to tracing harm caused to First Nation children and families in this case to particular actions and policies of the government.

Scope of causation and outlining federal responsibility for on-reserve child welfare

The issue of direct causal connection had been at the center of the government’s counter arguments against the complaint from the beginning. Canada’s defense had initially challenged the complainants’ argument of the FNCFS program subjecting First Nation children living on reserves to disproportionate apprehension compared to children receiving provincially funded services on the grounds that no evidence could be shown of such connection between the program’s funding formula and the apprehensions. The government emphasized that while child welfare agencies operating on reserves are funded by the federal government, at the time through the Department of Aboriginal Affairs and Northern Development Canada (AANDC), their operation falls under provincial jurisdiction.⁵¹ That is, agencies make their decisions regarding service provision within the limits of provincial legislation, and no federal officials have a direct role in that decision making. The government further argued that the alleged differences between services available on reserves and provincially funded mainstream services are attributable to choices of individual agencies rather than differences in funding.⁵²

However, the argument at the heart of the complaint was that by underfunding preventative services, the FNCFS Program significantly impacts that decision-making by practically incentivizing agencies to taking children in care.⁵³ According to testimonies presented to the CHRT by representatives of child and family service agencies, this was the case especially with agencies operating in areas where the percentage of children in care exceeds the percentage according to which the fixed budget for preventative services is calculated.⁵⁴ Overall, reviews of the program – both external and the government’s own – submitted by the complainants as evidence suggested the funding formula did not reflect the diversity of communities in terms of population or number of children in care, nor include adjustment according to changes in cost of living.⁵⁵ The CHRT eventually ruled in support of the complaint:

(…) by covering maintenance expenses at cost and providing insufficient fixed budgets for prevention, AANDC’s funding formulas provide an incentive to remove children from their homes as a first resort rather than as a last resort. For some FNCFS Agencies (…) their level of funding makes it difficult if not impossible to provide prevention and least disruptive measures.⁵⁶

These arguments on the role of the federal government, through the AANDC, in shaping the work of those agencies resonate with approaches of Kirsch and Eckert discussed above to how liability for harm can be claimed or challenged through narrowing or widening of the scope of contributing factors and events.⁵⁷ While the government suggested direct causal connection as precondition for its liability, the CHRT aligned with the complaint in looking more holistically at how the funding policy shapes the circumstances in which child welfare agencies on reserves operate. Here the attention shifts, as Kirsch suggests, from responsibility for an act of immediately causing harm to responsibility for conditions that allow it to happen.⁵⁸ The government was thus held responsible for creating circumstances that push child welfare agencies to apprehending children by ‘making it difficult if not impossible’ for them to support families to remain together. This, according to the CHRT, was regardless of the involvement of other actors in operation of services:

AANDC has a ‘Shared Responsibility for Child Welfare’ with the FNCFS Agencies and the provinces/territory. It not only provides funding, but policy and oversight as well. (…) It is not a passive player in this partnership, whereby it only provides funding: it strives to improve outcomes for First Nations children and families.⁵⁹

Ultimately, it is AANDC that has the power to remedy inadequacies with the provision of child and family services and improve outcomes for children and families residing on First Nations reserves and in the Yukon.⁶⁰

As there are several institutional actors involved in the organization of services, direct liability of one is obviously challenging to prove. This is also what the government emphasized in its attempt to, to borrow Strathern's terms, ‘cut’ the federal funding policy out of the network of factors significantly contributing to the apprehensions.⁶¹ However, while the CHRT acknowledged several institutional actors being involved in provision of services, it did not consider this fact as leading to equal distribution of responsibility among them or as diminishing that of the federal government.⁶² Rather, the 2016 decision underlined the powerful position of the AANDC in defining conditions in which the services operate, referring to its role in not only funding the services but also providing ‘policy and oversight’. Moreover, the decision emphasized the power of the department to correct the inequities of the funding framework, and its failure to do so despite having been aware of them.⁶³ The government was thus held responsible both for creating circumstances that subject First Nation children to disproportionate removals and its failure to prevent them while having the power to do so.⁶⁴

The CHRT’s assessment of Canada’s responsibilities regarding First Nation child and family services, however, also extended beyond the organizational structure of on-reserve child welfare. In the 2016 decision, the CHRT particularly highlighted the federal government’s special relationship with and its ‘public mandate and responsibilities to First Nations people’.⁶⁵ The decision refers both to Canada’s national legislation⁶⁶ and commitment to international agreements such as the United Nations Convention on the Rights of the Child⁶⁷ and Declaration on the Rights of Indigenous Peoples⁶⁸ in outlining obligations of the state to promote best interests of First Nation children and families:

(…) human rights principles, both domestically and internationally, require AANDC to consider the distinct needs and circumstances of First Nations children and families living on-reserve – including their cultural, historical and geographical needs and circumstances – in order to ensure equality in the provision of child and family services to them.⁶⁹

However, the CHRT found that the funding policy does not enable equitable provision of services that would respond to these needs. The failure of the government to prevent disproportionate apprehensions from continuing, it appears, is in the decisions thus viewed to indicate a further failure by the state of its special obligations to First Nation children and families. This, I suggest, resonates with Eckert’s observation of ‘realignment of law and morals’ in legal struggles for social justice, where claims on liability are based on assumptions about existing moral obligations of the parties toward each other.⁷⁰ Furthermore, in this case the CHRT was considering obligations of Canada toward First Nation children and families also beyond legal commitments. As Wilson notes, forming judgment of collective harms targeted at a specific group of population requires ‘an account of intergroup relations over time’ to understand the social and historical context of the case.⁷¹ In the 2016 decision, the CHRT equally emphasized the need to consider the broader ‘social, political and legal context’ of the case, adding that ‘for Aboriginal peoples in Canada, this context includes a legacy of stereotyping and prejudice through colonialism, displacement and residential schools’.⁷² In her analysis of the case, Naiomi Metallic highlights the particular importance of how the decision considered similarities with earlier policies of assimilation as central to defining Canada’s actions through the FNCFS program as discriminatory.⁷³ I will next move on to discuss how the decisions address the scope and gravity of the harm in the light of the history of First Nations and the settler colonial state.

Scope of harm and historical contextualization

In the CHRT’s interpretation the government’s discriminatory funding policy had led to a common experience of ‘pain and suffering’ shared by children and families subjected to apprehensions.⁷⁴ However, the government’s key argument in its appeal on the compensation order was that individual compensation to apprehended children and their caregivers could not be awarded without assessing individual circumstances and impacts of each apprehension.⁷⁵ While not denying disproportionate apprehensions as a systemic problem per se, the government argued that there was no sufficient evidence of the harm caused to individual children, highlighting that most apprehensions had been necessary to keep the child safe.⁷⁶

The government’s argument thus narrowed the scope of the harm down to individual cases of apprehension taking place in particular circumstances, entailing that each of them could not be considered as equally harmful to the child.⁷⁷ In the CHRT’s interpretation, however, the harm justifying compensation were the apprehensions themselves. As explained in the compensation order, its approach was based on the Canadian Human Rights Act and thus aimed at ‘vindicating the victims of discriminatory practices’ rather than awarding compensation for a specific kind of individual injury.⁷⁸ The CHRT reiterated this stance in its 2022 decision that turned down the first proposal for settlement agreement, in which it underlined this difference between the human rights regime and tort law in explaining why the proposal of the government and the AFN was in conflict with the original purpose of the compensation order. Instead of assessing individual harm in terms of years spent in care or placement type, the victims’ entitlement to compensation was based on the very finding that they had been subjected to discrimination that could, based on evidence available to the Tribunal, be established as having caused them pain and suffering.⁷⁹

Compared to early residential school litigations discussed by Blackburn and Henderson, the legal regime of this case thus allowed establishing it as a harm justifying individual compensation without assessing the specific individual injuries in each case.⁸⁰ The suggested compensation of this harm with a fixed sum for the experience of removal itself was accordingly based on the model of Common Experience Payment that formed part of compensation of residential school survivors under the Indian Residential School Settlement Agreement (IRSSA). While the IRSSA also included a separate Independent Assessment Process to determine additional compensation for individual experiences of abuse, the CHRT’s compensation order justified the choice to only adopt a ‘common experience’ compensation of fixed amount with avoiding ‘burdensome and potentially harmful task of scaling the suffering per individual’.⁸¹

Part of the justification behind the decision of the CHRT to not to require testimonies of individual children or caregivers as proofs of the harm suffered by them was equally to avoid revictimization of these persons, particularly children.⁸² Instead, the CHRT relied on a wealth of expert testimonies and existing documentation of individual and communal impacts of child removal. This evidence included findings of earlier court cases regarding impact of removal of children on wellbeing and dignity of the parent, and testimonies of scholars as well as findings of previous inquiries, such as those of the RCAP and the Truth and Reconciliation Commission of Canada, on psychosocial impacts of child removal on First Nation children and families.⁸³

In the compensation order, presented evidence of the impacts of child removal in the context of residential schools and the Sixties Scoop appears to support the argument that harmful impact of removal from family and community on First Nation children has already been established. Referring to a testimony shared during the RCAP hearings concerning a collective experience of the interference by non-Indigenous child welfare authorities on family life of the Anishinaabe in the Sixties Scoop era, the decision states that ‘there is absolutely no doubt that the removal of children from their families and communities is traumatic and causes great pain and suffering to them’.⁸⁴ How the CHRT decisions establish the practice of removing First Nation children from their kin and community as harmful by definition, I suggest, thus intertwines tightly with their historical contextualization of the case.⁸⁵ This is implied by the opening passage of the 2016 decision:

This decision concerns children. More precisely, it is about how the past and current child welfare practices in First Nations communities on reserves, across Canada, have impacted and continue to impact First Nations children, their families and their communities.⁸⁶

Based on the evidence discussed above, what the CHRT considered as the ultimate harm caused to children subjected to removal was severing the child’s connection to their family and community that removal from home in many cases entailed. While acknowledging that in many cases removal had been necessary to keep the child safe, the compensation order states that for many of those children it had nevertheless meant a separation from their extended family and community, thus resulting in ‘egregious and compound harm’.⁸⁷ The decision thus appears to define victimhood of apprehended children through their membership in kin and community relations, severing of which alone constitutes an assault to the child’s identity and belonging. Here, the decision touches upon an issue that has drawn critical discussion on how Canada’s child welfare legislations reflect certain cultural values while excluding others: their failure to address the inseparability of the ‘best interests’ of an Indigenous child from their connection to extended family, community and culture.⁸⁸ Harm caused to the individual victims of the case is thus in the decisions tied to the harm caused to these relations they are part of:

This Panel recognizes the shame and the pain and suffering experienced by children, who were deprived of this vital right to live in their families and communities and, also the shame, pain and suffering, that their families and communities experienced as a result of colonization, racism and racial discrimination.⁸⁹

CHRT’s interpretation also extends, as Kirsch puts it, network of relations harmed by the removals to relations of children with their extended family and community as well as broader implications of removal of children on these collectives.⁹⁰ Moreover, the decision situates the removals in the broader context of structural harm having from colonization and systemic racism over generations. This broader consideration of relations appears particularly important considering broader implications of child removal that, as has been highlighted by Indigenous scholars, leaders and advocates since the Sixties Scoop era, reach beyond individual wellbeing to kinship relations, cultural continuity and nationhood. In her analysis of the history and political underpinnings of the Sixties Scoop, Allyson Stevenson suggests the foundational importance of kinship to ‘Indigenous identity and political sovereignty’ as what has motivated colonial policies targeted at these kin relations. She further notes that such policies were not limited to child removal but included also, for example, state control over First Nation identity through the Indian Act and particularly its former provisions regarding women’s loss of their Indian status through marriage with a non-First Nation man that consequently prevented them from passing the status to their children.⁹¹

While the discussion on the historical context of the case in these CHRT decisions does not exactly touch upon the wider scope of colonial policies targeted at Indigenous relations and belonging, the initial 2016 decision does address broader collective interests of First Nations undermined by the practice of child removal. By incentivizing further removals of children from their homes and communities, the decision states, the FNCFS program adversely impacts particular ‘interests of First Nations children, families and communities (…) namely, indigenous cultures and languages and their transmission from one generation to the other’.⁹² Impact of the apprehensions is thus extended to intergenerational relations and practices vital to social constitution and continuity of First Nations. In the compensation order, too, individual suffering caused by the removals is situated in this context:

Removing children from their homes, families, communities and Nations destroys the Nations’ social fabric leading to immense consequences, it is the opposite of building Nations. That is trauma and harm to the highest degree causing pain and suffering.⁹³

The scope of the harm in the decisions is thus extended both relationally and temporally from immediate effects of the discriminatory funding policy on individual victims to implications as part of a broader history of intergenerational harm perpetuated against their communities and nations over time.⁹⁴ As Wilson suggests in the context of international criminal trials, the way historical context of the case is considered in its legal judgment also necessarily establishes a particular narrative of that history.⁹⁵ According to Wilson, such narrative provides a wider framework of meaning within which the events at the focus of the case and the evidence employed in its judgment are situated.⁹⁶ As illustrated by the above quotes, the CHRT decisions build on a widely shared view of child removal as a major injustice perpetuated against First Nation families, communities and nations in Canada’s history. Building on the evidence discussed above concerning earlier examples of child removal, the decisions situate the ongoing disproportionate apprehensions of First Nation children as not only their impact but continuity, which they view as particularly aggravating their harmful impact:

The evidence in this case not only indicates various adverse effects on First Nations children and families (…) but also that these adverse effects perpetuate historical disadvantages suffered by Aboriginal peoples, mainly as a result of the Residential Schools system.⁹⁷

To illustrate this continuity between the residential schools and the present situation of First Nation child welfare, the decision refers to residential school survivor testimony as well as expert testimonies, most notably those of historian John Milloy and psychologist Amy Bombay regarding history of the schools and their intergenerational impacts.⁹⁸ The decision also emphasizes this history as a particular background of high child welfare involvement among First Nation families.⁹⁹ In her analysis of the decision, Metallic traces how it further establishes a continuity of assimilative elements between residential schools and the FNCFS program, manifested as the limited control the program allows for First Nations over their services and of how inadequate funding hinders provision of culturally appropriate services.¹⁰⁰ Importantly, continuities with the earlier history of child removal identified in the decisions are thus not limited to perpetuation of their impacts but also include specific systemic similarities.

Furthermore, the CHRT explicitly refers to specific obligations this history sets for the government to ‘ensure that its involvement in the provision of child and family services does not perpetuate the historical disadvantages endured by Aboriginal peoples’.¹⁰¹ As implied by the previous quote, the government’s failure to fulfill these obligations is considered to constitute part of the harm that it is held liable for. Such perception of historical obligations resonates with Hannah Arendt’s concept of collective and intergenerational responsibility of political communities for actions of their predecessors.¹⁰² In this case, however, the state is held responsible not only for impacts of past wrongs, but for what Wakeham and Robinson call ‘slow violence’ of maintaining rather than addressing their ongoing structural continuities.¹⁰³

Temporalities of structural harm and ‘everyday’ context of child removal

In this final section, I will examine in more detail how factors and events leading to the disproportionate apprehensions through on-reserve child welfare are situated temporally in the decisions, and implications this has for their interpretation of causation and liability. While there is little debate of the connection of ongoing removals of First Nation children through child welfare to harms caused by earlier policies of child removal, the challenge in this case was to point out how present government policies continue and even exacerbate those harms. This question thus links to criticism of discourses that frame present disadvantages faced by Indigenous peoples as an impact of the past rather than an ongoing harm actively perpetuated through present policies and structures.¹⁰⁴

Drawing from Povinelli’s discussion on eventfulness, I suggest that part of the challenge of showing causal connection between a specific policy and the apprehensions is that this kind of harm is difficult to assign a specific point of beginning.¹⁰⁵ The history of settler state removal of First Nation children from their homes extends a long way back from the introduction of the FNCFS program, and circumstances where child welfare concerns in today’s communities emerge have formed over a long and complex history of colonization and dispossession.¹⁰⁶ This entails that the role of the program in producing conditions that lead to apprehensions is difficult to distinguish from the broader community, family, and agency circumstances where they take place.¹⁰⁷ This was illustrated in the government’s appeal on the compensation order that criticized the CHRT for assuming a connection between the funding policy and individual apprehensions without attending to particular circumstances of each case.¹⁰⁸

The challenge to establish such connection, I suggest, reflects what Povinelli discusses as accumulation of structural harm over time and its consequent integration into everyday conditions of life which makes it difficult to trace it to specific events or actions.¹⁰⁹ This is illustrated in the government’s arguments that emphasize specific circumstances of child welfare agencies, communities, and families as the context where the apprehensions take place.¹¹⁰ These arguments appear to imply that it is impossible to distinguish causes leading to the apprehensions from these unique everyday circumstances, and thus to identify a causal connection between the funding framework of the FNCFS program and the apprehensions. The complexity of factors behind the apprehensions was indeed also recognized by the CHRT: the compensation order acknowledged that children are apprehended for different reasons that intertwine with broader socioeconomic issues in communities, including poverty, lack of adequate housing, and substance abuse.¹¹¹ Agencies also operate in varying local circumstances as percentage of children in care as well as access to other, provincially funded social services varies between communities.¹¹² The CHRT, however, maintained that these circumstances share a common background shaped by earlier history of child removal and ongoing structural inequities. This approach, I suggest, resonates with arguments of Povinelli and Das on the relationship of the eventful and the ordinary in how (systemic) violence inhabits the everyday. While manifesting as radical disruptions to everyday life through removals of children, the decisions also highlight structural harm as constitutive of those everyday circumstances.¹¹³

The CHRT’s interpretation thus expanded the scope of factors it considered leading to the removals to these broader circumstances of structural harm by looking at how the FNCFS program responds to them. The decisions pointed at how the lack preventative services in combination with factors such as poverty and intergenerational impacts of residential schools increases the risk of apprehension for First Nation children on reserves. By restricting the options available for child and family service agencies to support families in these circumstances, the CHRT found, the program further perpetuated these historically shaped harms instead of helping to address them.¹¹⁴ As noted in the earlier discussion on temporal scope of harm, what the CHRT found as a particularly aggravating factor was the finding that the program perpetuated the impacts of residential schools, addressing of which it viewed as the government’s obligation stemming from that history:

By focusing on bringing children into care, the FNCFS Program, corresponding funding formulas and other related provincial/territorial agreements perpetuate the damage done by Residential Schools rather than attempting to address past harms.

(…)

With unrealistic funding, how are some First Nations communities expected to address the effects of Residential Schools? It will be difficult if not impossible to do, resulting in more kids ending up in care and perpetuating the cycle of control that outside forces have exerted over Aboriginal culture and identity.¹¹⁵

These passages from the 2016 decision highlight how the CHRT held the government liable both for not only continuing but accelerating an intergenerational, structural harm stemming from earlier state policies and for failing its historical obligation to ensure these harms are not perpetuated. Moreover, this aspect of further perpetuation of harm comes up in the CHRT’s discussion on the government’s inaction regarding the problems of the FNCFS program while even its own documents indicated awareness of them since the late 1990s.¹¹⁶ The compensation order states that the government’s failure to respond to the findings presented in reports of the reviews conducted on the program in the early 2000s ‘in fact exacerbates Canada’s willful and reckless conduct in not correcting the discriminatory practice’.¹¹⁷ By tracing how a present-day government policy reproduces structural continuities that maintain disproportionate removals of First Nation children from their families, communities and cultural backgrounds, I suggest, the decisions can challenge discourses that reduce the connection between residential schools and child welfare into only that of an intergenerational trauma.¹¹⁸ Rather, their interpretation resonates with Wakeham’s and Robinson’s analyses of settler colonial structural harm operating as ‘slow violence’ by accumulating through series of intersecting processes and instances of harm over time, and also manifesting as inaction to address such harms. Such approach can also, as Robinson suggests, shift the discourse of intergenerationality in reference to colonial continuities from intergenerational aspect of victimhood to that of perpetration and responsibility.¹¹⁹

It is also worth acknowledging that the CHRT decisions still do rather heavily rely on the discourse of child removal as intergenerational trauma in their defining of scope and gravity of the harm. This, I suggest, partly relates to the need to establish removal of a First Nation child from their family and community as a harmful act on its own, a finding which is in the decision explicitly articulated in relation to evidence of the individual, family and community level impact of residential schools and the Sixties Scoop.¹²⁰ Such strong reliance on the discourse of intergenerational harm may have two-fold implications. In supporting the CHRT’s definition of removals of First Nation children as a practice already established as harmful, it does serve an important purpose. However, this strong emphasis may also carry a risks of dismissing the broader spectrum of how colonialism has targeted Indigenous social organizing, sovereignty and connectedness to land through, for example, by forced relocations of communities, environmental destruction, attack on traditional livelihoods and banning of spiritual practices.¹²¹

As Maxwell notes, in order not to reinforce discourses that reduce Indigenous ‘social suffering’ to historical trauma, it is important to underline that the broader circumstances where continuing removals of First Nation children happen consists of more than just family level impacts of earlier experiences of child removal.¹²² The very fact that neglect remains the most common grounds for child maltreatment investigations concerning First Nation children has been attributed to broader systemic inequities these children are subjected to, such as poverty and substandard housing conditions.¹²³ As discussed earlier in this paper, the CHRT found that lack of preventative services adds another layer to these inequities when leading to situations where removal of children becomes a firsthand solution to addressing their impacts on wellbeing of families.¹²⁴ However, considering these broader socioeconomic inequities, reducing the need for child welfare services in communities also requires changes that go beyond the child welfare system and funding of preventative services.¹²⁵

While definition of the historical, structural harm perpetuated through colonization in the CHRT decisions remains either loosely defined as ‘historical disadvantage’ or rather narrowly articulated in terms of child removal, they nevertheless mark a legal recognition of the responsibility of the state government for perpetuating such harm in the present. Moreover, as Metallic remarks, they trace this harm to particular actions, choices and inactions in the government’s management of the FNCFS program.¹²⁶

Resisting strict categorization of this broader history into separate ‘past’ or ‘present’ wrongs, such approach indicates a perception cumulative harm perpetuated through multiple policies and practices of settler colonial state over time, as suggested by Castillejo-Cuéllar and Wakeham.¹²⁷ Highlighting how it is not only intergenerational impacts of past policies that keep First Nation children overrepresented in the system, but the way present child welfare services are organized and funded, the decision addresses the FNCFS program as a distinct, ongoing phase of the broader, historical injustice of child removal. Although inseparable from that larger historical context, apprehensions in the context of the program are thus addressed as a distinct wrong on their own; in Povinelli’s terms, ‘eventful’, rather than a normalized condition untraceable to specific causes or actors. This is how historical contextualization supports establishing the case as one of ongoing, systemic injustice maintained by present policies, thus affirming liability of the present government for it.

Conclusions and further reflection

In this paper, I have discussed how diverging perceptions of liability and entitlement to compensation in this case reflect challenges of accommodating intergenerational, structural harm within legal notions of direct connection between harm and its cause. Arguments of the complainants and the government suggest contesting perceptions of not only the scope of processes that contribute and have contributed to disproportionate apprehensions through on-reserve child welfare, but also of what constitutes the harm itself. While the government pointed at the lack of evidence between its actions and the apprehensions, the complainants and the CHRT stressed its responsibility for wider circumstances behind them.

The decisions view the harm that the children and families have been subjected as not limited to individual impacts of the apprehensions but as accumulated over generations through ‘colonization, racism and racial discrimination’.¹²⁸ The decisions thus suggest that this harm and liability for it extend beyond direct causation and individual impact, both temporally and in terms of the width of social relations and the actors implicated. By setting individual apprehensions in such broader context that includes earlier collective experiences of state-sanctioned child removal, the CHRT decision affirm the complainants’ claim on a common experience of suffering that justifies compensation regardless of the individual circumstances where the apprehensions took place. Historical contextualization of the case does not thus only provide background for it but appears crucial to the CHRT’s judgment.

I have also suggested, building on Wilson’s argument, that the legal judgment of this case not only relies on but produces a certain kind of historical narrative of collective harm by setting the inequities of the FNCFS program and removals of children under it as part of a broader historical injustice of child removal against First Nation families.¹²⁹ The decisions also address the liability of the government according to how its discriminatory funding policy further perpetuates this cumulative harm. While the framing of this historical injustice in the decisions primarily in terms of the child removal carries a risk of reinforcing narrowed perceptions that miss the broader scope of colonial harm, this emphasis on accumulation of harm significantly highlights the complicity of present state actors in it. The decisions thus establish the case as a distinct, ongoing phase of a long-term continuity of structural harm that can also be traced to particular policies and actions of the government in the present.¹³⁰

I initially started building the analytical framework for this paper upon the question of state responsibility for long-term structural harms in a legal context, which led to drawing particularly from scholarship addressing liability for systemic and historical wrongs. However, a broader discussion concerning implications of such structural harm in this context would require building on culturally grounded First Nation scholarship to further address relational significance of policies such as child removal in diverse First Nation contexts. As Seneca scholar Mishuana Goeman critically observes, analysis of settler colonial structures that draws from non-Indigenous approaches risks dismissing the specific historical, cultural and place-based contexts of how Indigenous peoples have experienced and resisted those structures and may thus fall short in offering solutions to changing them.¹³¹ First Nation approaches that build on, as Leanne Betasamosake Simpson notes in Nishnaabeg context, both cultural and political resurgence can thus be better suited for creating pathways to move forward from implications of colonial harm toward futures defined from First Nation standpoint.¹³² While such essential further discussion goes beyond the scope of my analysis here, I hope this article nevertheless offers a contribution to discussion on tracing settler state accountability for policies and structures that perpetuate colonial power relations.

Acknowledgments

I would like to thank Dr. Katja Uusihakala (Social and Cultural Anthropology, University of Helsinki) and Prof. Jennifer Henderson (School of Canadian Studies, Carleton University) for their comments on earlier versions of this paper. In addition, I would like to thank the two anonymous reviewers of this article for their extensive and helpful comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by Koneen Säätiö [grant number 202006802].

Notes

1 Olivia Stefanovich, ‘Ottawa Earmarks $40B for Indigenous Child Welfare compensation, Program Reform’, CBC News, December 13, 2021, https://www.cbc.ca/news/politics/ottawa-indigenous-child-welfare-compensation-offer-1.6283952.

2 First Nations Child and Family Caring Society of Canada, AFN and the Caring Society CHRC complaint, 2007, https://fncaringsociety.com/publications/afn-and-caring-society-chrc-complaint. Jordan‘s Principle is named after Jordan River Anderson, a Cree child who passed away in hospital while the governments were disputing over the responsibility to pay for supports that would have allowed him to live in a foster home; see Trudy Lavallee, ‘Honouring Jordan: Putting First Nations Children First and Funding Fights Second’, Paediatric Child Health 10, no. 9 (November 2009), doi:10.1093/pch/10.9.527.

3 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 (CanLII), T1340/7008 (Jan. 26, 2016), available at: https://www.canlii.org/en/ca/chrt/doc/2016/2016chrt2/2016chrt2.html, at paras 344, 384, 391, 461.

4 Ibid., at paras 404, 465.

5 Ibid., at para 475.

6 See 2016 CHRT 10, 2016 CHRT 16, 2017 CHRT 14, and 2018 CHRT 4; a full timeline of the orders is available at the Caring Society's website: https://fncaringsociety.com/i-am-witness/chrt-orders.

7 First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada, 2019 CHRT 39 (CanLII), T1340/7008 (Sept. 6, 2019), available at: https://www.canlii.org/en/ca/chrt/doc/2019/2019chrt39/2019chrt39.html.

8 Caring Society, 2019 CHRT 39, at paras 51, 161. For more detailed discussion on this evidence, which will be addressed later in this paper; see ibid., at paras 158, 162–3, 168–9, 171–5. As for Jordan’s Principle cases, the CHRT also pointed at the government's own case records that detailed harmed caused to specific children by denials or delays of services; see ibid., at paras 222, 224.

9 Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada et al., 2021 FC 969 (CanLII), T-1559-20; T-1621-19 (Sept. 29, 2021) available at: https://www.canlii.org/en/ca/fct/doc/2021/2021fc969/2021fc969.html.

10 Olivia Stefanovich and Nick Boisvert, ‘Ottawa will appeal court ruling on Indigenous child welfare but says it's pursuing a compensation deal’, CBC News, October 29, 2021, https://www.cbc.ca/news/politics/ottawa-federal-court-ruling-appeal-decision-child-welfare-1.6229567.

11 First Nations Child and Family Caring Society et al., 2022 CHRT 41 (CanLII), T1340/7008 (Dec. 20, 2022), available at https://www.canlii.org/en/ca/chrt/doc/2022/2022chrt41/2022chrt41.html, see e.g. paras 169, 251, 283.

12 First Nations Child and Family Caring Society et al., 2023 CHRT 44, T1340/7008 (Sept, 26, 2023).

13 Richard Wilson, Writing History in International Criminal Trials: Judging History (New York: Cambridge University Press, 2011).

14 See e.g. Patricia Monture, ‘A Vicious Circle: Child Welfare and the First Nations’, Canadian Journal of Women and the Law 3, no. 1 (1989); Suzanne Fournier and Ernie Crey, Stolen from Our Embrace: The Abduction of First Nations Children and the Restoration of Aboriginal Communities (Madeira Park, B.C.: Douglas & McIntyre, 1997); National Inquiry on Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report, Volume 1a (2019), 280, 340; Allyson D. Stevenson, Intimate Integration: A History of the Sixties Scoop and the Colonization of Indigenous Kinship (Toronto: University of Toronto Press, 2021), 11, 188; Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The Legacy. The Final Report of the Truth and Reconciliation Commission of Canada, Volume 5 (Montreal: McGill-Queen’s University Press, 2015), 105.

15 See e.g. Andrew Armitage, Comparing the Policy of Assimilation: Australia, Canada and New Zealand (Vancouver: UBC Press, 1995), 43, 103–4; 236; Margaret D. Jacobs, White Mother to a Dark Race: Settler Colonialism, Maternalism, and the Removal of Indigenous Children in the American West and Australia, 1880-1940 (Lincoln: University of Nebraska Press, 2009), 25–26; Shurlee Swain and Margot Hillel, Child, Nation, Race and Empire: Child Rescue Discourse, England, Canada and Australia, 1850-1915 (Manchester: Manchester University Press, 2010), 94–96.

16 See e.g. Glen Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014); Raymond Mason, Jackson Pind, and Theodore Michael Christou, Spirit of the Grassroots People: Seeking Justice for Indigenous Survivors of Canada’s Colonial Education System (Montreal: McGill-Queen’s University Press, 2020).

17 Coulthard, Red Skin, White Masks, 108–9.

18 See e.g. Cindy Blackstock, ‘What Will It Take? Ending the Canadian Government’s Chronic Failure to Do Better for First Nations Children and Families When It Knows Better’, in Sharing the Land, Sharing a Future: The Legacy of the Royal Commission on Aboriginal Peoples, ed. Katherine Graham and David Newhouse (Winnipeg: University of Manitoba Press, 2021), 292; Eva Jewell and Ian Mosby, Calls to Action Accountability: A 2021 Status Update on Reconciliation (Toronto: Yellowhead Institute), 4.

19 Coulthard, Red Skin, White Masks, 109.

20 Barbara Fallon et al., Denouncing the Continued Overrepresentation of First Nations Children in Canadian Child Welfare: Findings from the First Nations/Canadian Incidence Study of Reported Child Abuse and Neglect-2019 (Ontario: Assembly of First Nations, 2021), 47.

21 Ibid., 14; Amy Bombay et al., ‘Familial Attendance at Indian Residential School and Subsequent Involvement in the Child Welfare System Among Indigenous Adults Born During the Sixties Scoop Era’, First Peoples Child & Family Review 15, no. 1 (2020), doi:10.7202/1068363ar; Ashley Quinn et al., ‘The Overrepresentation of First Nations Children in the Ontario Child Welfare System: A Call for Systemic Change’, Children and Youth Services Review 139 (2022), doi:10.1016/j.childyouth.2022.106558.

22 Maxwell, ‘Settler-Humanitarianism’, 975, 990; Dian Million, Therapeutic Nations: Healing in an Age of Indigenous Human Rights (Tucson: University of Arizona Press, 2013), 5.

23 Royal Commission on Aboriginal Peoples, Looking Forward, Looking Back: Report of the Royal Commission on Aboriginal Peoples, vol. 1 (Ottawa: Royal Commission on Aboriginal Peoples, 1996), 359, 361; Million, ‘Therapeutic Nations’, 5–6; Maxwell, ‘Settler-Humanitarianism’, 979, 989.

24 See e.g. Truth and Reconciliation Commission of Canada, The Survivors Speak: A Report of the Truth and Reconciliation Commission of Canada, (Truth and Reconciliation Commission of Canada, 2015), https://nctr.ca/records/reports/.

25 Maxwell, ‘Settler-Humanitarianism’, 977, 1000; Holly A. McKenzie, Colleen Varcoe, Annette J Browne, and Linda Day, ‘Disrupting the Continuities Among Residential Schools, the Sixties Scoop, and Child Welfare: An Analysis of Colonial and Neocolonial Discourses’, International Indigenous Policy Journal 7, no. 2 (2016), doi:10.18584/iipj.2016.7.2.4.

26 See e.g. Clem Cartier and Ovide Mercredi, ‘Status of Child Welfare Services for the Indigenous Peoples in Canada: The Problem, the Law and the Solution’, Native People and Justice in Canada 5, nos. 2 & 3 (1982), 164; Monture, ‘A Vicious Circle’; Fournier and Crey, Stolen from Our Embrace; 83–4; Cindy Blackstock, ‘The Occasional Evil of Angels: Learning from the Experiences of Aboriginal Peoples and Social Work’, First Peoples Child & Family Review 4, no. 1 (2009), doi:10.7202/1069347ar.

27 Stevenson, Intimate Integration, 121, 123, 137; Philip Hepworth, Foster Care and Adoption in Canada (Ottawa: Canadian Council on Social Development, 1980), 113; Patrick Johnston, Native Children and the Child Welfare System (Toronto: Canadian Council of Social Development and James Lorimer & Company Publishers, 1983), 66.

28 Hepworth, Foster Care and Adoption in Canada, 114, 119; Johnston, ‘Native Children and the Child Welfare System’.

29 Ibid., 23, 66.

30 See e.g. Cartier and Mercredi, ‘Status of Child Welfare Services’; Monture, ‘A Vicious Circle’; Stevenson, Intimate Integration, 186–9, 201–2.

31 Ibid., 186, 188, 196; Johnston, ‘Native Children and the Child Welfare System’, 107, 112.

32 It was only after years of advocacy by Indigenous organizations and the recent orders of the CHRT for the federal government to reform the system that a new federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families (S.C. 2019, c. 24), was passed that allows Indigenous communities or governments across Canada to take over jurisdiction of their services.

33 Rose-Alma J. McDonald and Peter Ladd, First Nations Child and Family Services: Joint National Policy Review (Ottawa: Assembly of First Nations, Department of Indian and Northern Affairs Development, June 2000), 20.

34 McDonald & Ladd, Joint National Policy Review; Cindy Blackstock et al., Wen:de: We Are Coming to the Light of Day (Ottawa: First Nations Child and Family Caring Society of Canada, 2005); John Loxley et al., Wen:de: The Journey Continues (Ottawa: First Nations Child and Family Caring Society of Canada, 2005).

35 John Loxley and Linda DeRivier, ‘Promoting Community and Family Wellness’ in Blackstock et al., Wen:de: We Are Coming to the Light of Day, 114.

36 Sinha and Kozlowski, ‘The Structure of Aboriginal Child Welfare’, The International Indigenous Policy Journal 4, no. 2 (April 2013), doi:10.18584/iipj.2013.4.2.2.

37 Cindy Blackstock, ‘The Canadian Human Rights Tribunal on First Nations Child Welfare: Why if Canada wins, equality and justice lose’, Children and Youth Services Review 33 (2011), 189, doi:10.1016/j.childyouth.2010.09.002.

38 Caring Society, 2016 CHRT 2, at paras 461, 486.

39 E.g. Elizabeth A. Povinelli, Economies of Abandonment: Social Belonging and Endurance in Late Liberalism (North Carolina: Duke University Press, 2011); Pauline Wakeham, ‘The Slow Violence of Settler Colonialism: Genocide, Attrition, and the Long Emergency of Invasion’, Journal of Genocide Research 24, no. 3 (2022), doi:10.1080/14623528.2021.1885571; and Andrew Woolford and Wanda Hounslow, ‘Criminology's Time: Settler Colonialism and the Temporality of Harm at the Assiniboia Residential School in Winnipeg, Canada, 1958–1973’, State Crime 7 no. 2 (2018), doi:10.13169/statecrime.7.2.0199.

40 Coulthard, ‘Red Skin, White Masks’, 121; Maxwell, ‘Settler-Humanitarianism’, 977.

41 Ibid., 977, 988; Million, Therapeutic Nations, 6; see also Jennifer Henderson, ‘Transparency, Spectatorship, Accountability: Indigenous Families in Settler-State ‘Postdemocracies’, English Studies in Canada 38, no. 3 (2012), doi:10.1353/esc.2013.0009; Povinelli, Economies of Abandonment, 154.

42 Povinelli, Economies of Abandonment, 136, 157–8.

43 Povinelli, Economies of Abandonment, 133, 144, 152; Veena Das, Life and Words: Violence and the Descent into the Ordinary (Berkeley: University of California Press, 2006), 6.

44 See Alejandro Castillejo-Cuellar, ‘On the Question of Historical Injuries: Transitional Justice, Anthropology and the Vicissitudes of Listening’, Anthropology Today 29, no. 1, doi:10.1111/1467-8322.12005, 17, 19; Woolford and Hounslow, ‘Criminology’s Time’, 205; Wakeham, ‘The Slow Violence’, 350; Dylan Robinson, ‘Intergenerational Sense, Intergenerational Responsibility’ in Arts of Engagement. Taking Aesthetic Action in and Beyond the Truth and Reconciliation Commission of Canada, ed. Dylan Robinson and Keavy Martin (Waterloo, Ontario: Wilfrid Laurier University Press, 2016), 63.

45 Julia Eckert, ‘The Morals of Liability: Some Thoughts on ‘Humanitarians in Court’, The Journal of Legal Pluralism and Unofficial Law 50, no. 3 (2018), doi:10.1080/07329113.2018.1554366.

46 Carole Blackburn, ‘Culture Loss and Crumbling Skulls: The Problematic of Injury in Residential School Litigation’, Political and Legal Anthropology Review 35, no. 2 (November 2012), 294, 295, doi:10.1111/j.1555-2934.2012.01204.x.

47 Jennifer Henderson, ‘Residential Schools and Opinion-Making in the Era of Traumatized Subjects and Taxpayer-Citizens’, Journal of Canadian Studies 49, no. 1 (Winter 2015), 8, 12, doi:10.3138/jcs.49.1.5.

48 Julia Eckert and Laura Knöpfel, ‘Legal Responsibility in an Entangled World’, Journal of Legal Anthropology 4, no. 2 (Winter 2020), doi:10.3167/jla.2020.040201; James Ferguson, ‘Structures of Responsibility’, Ethnography 13, no. 4 (2012), doi:10.1177/1466138111435755; and Stuart Kirsch, ‘Property Effects: Social Networks and Compensation Claims in Melanesia’, Social Anthropology 9, no. 2 (2001), doi:10.1111/j.1469-8676.2001.tb00143.x.

49 Eckert, ‘The Morals of Liability’, 376; Marilyn Strathern, ‘Cutting the Network’, Journal of the Royal Anthropological Institute 2, no. 3 (1996), 517–35, doi:10.2307/3034901.

50 Kirsch, ‘Property Effects’, 152, 155.

51 Caring Society, 2016 CHRT 2, at paras 33–34, 78.

52 Ibid., at para 306.

53 First Nations Child and Family Caring Society of Canada, AFN and the Caring Society CHRC complaint. As summarized in the Caring Society’s 2005 report, preventative services can include, for example, parenting programs, services for children with special needs, pre- and neo-natal services, life-skills training, and services fostering cultural identity (Loxley et al. 2005, 132–8).

54 Caring Society, 2016 CHRT 2, at paras 310, 315.

55 Ibid., at paras 153–4, 334.

56 Ibid., at para 344.

57 Eckert, ‘The Morals of Liability’, 376; Kirsch, ‘Property Effects’, 152.

58 Ibid., 155.

59 Caring Society, 2016 CHRT 2, at para 66.

60 Ibid., at para 85.

61 Strathern, ‘Cutting the Network’, 522.

62 Eckert, ‘The Morals of Liability’, 377; Caring Society, 2016 CHRT 2, at paras 66, 85.

63 Ibid., at paras 85, 461.

64 Eckert, ‘The Morals of Liability’, 376.

65 Caring Society, 2016 CHRT 2, at paras 78, 465.

66 The decision states that the funding policy adversely impacts intergenerational transmission of ‘Indigenous cultures and languages’ that are protected in the section 35(1) of Canada’s 1982 Constitution Act (Caring Society et al. 2016 at p. 106). The decision also refers to an earlier decision of the Supreme Court that, in reference to the 1906 version of the Indian Act, states that ‘care and welfare’ of First Nation people should be the government’s ‘political trust of the highest obligation’ (St. Ann's Island Shooting And Fishing Club v. The King [1950] SCR 211 at p. 219; Caring Society et al. 2016 at p. 90)

67 Canada ratified the UN Convention on the Rights of the Child (CRC) in 1992, emphasizing in its Statement of Understanding the rights of Indigenous children to their own culture. In its report to the CRC Committee in 2009, Canada stated its commitment to developing prevention-focused child welfare services for Indigenous children (ibid., at p. 448–9).

68 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) includes the right of Indigenous peoples to be free or any kind of discrimination. Although the UNDRIP was not legally binding in Canada at the time, the CHRT notes that when endorsing it in 2010, Canada ‘reaffirmed its commitment to … improve the well-being of Aboriginal Canadians’ (ibid., at p. 452).

69 Caring Society, 2016 CHRT 2, at para 465.

70 See note 64 above.

71 Wilson, ‘Writing History in International Criminal Trials’, 21.

72 Caring Society, 2016 CHRT 2, at para 402.

73 Naiomi Metallic, ‘A Human Right to Self-Government over First Nations Child and Family Services and Beyond: Implications of the Caring Society Case', Journal of Law and Social Policy 28, no. 2, https://digitalcommons.osgoode.yorku.ca/jlsp/vol28/iss1/13

74 Caring Society, 2019 CHRT 39, at paras 184–5.

75 Canada (Attorney General) v. First Nations Child and Family Caring Society et al., T-1621-19, T-1559-20 (FC), Applicant’s Memorandum of Fact and Law (March 12, 2021), https://fncaringsociety.com/publications/agc-memorandum-fact-and-law-march-12-2021 (accessed July 26, 2023), at paras 57, 59.

76 Ibid., at paras 57, 88–89.

77 See Kirsch, ‘Property Effects’, 155.

78 Caring Society, 2019 CHRT 39, at paras 130, 188; Canadian Human Rights Act, s. 53 (2) (e).

79 Caring Society, 2022 CHRT 41, at paras 101, 169, 283; Caring Society 2019 CHRT 39, at para 187.

80 See Blackburn, ‘Culture Loss and Crumbling Skulls’, 293–4.

81 Ibid at para 243.

82 Caring Society, 2019 CHRT 39, at paras 37, 189.

83 Ibid., at paras 166–9, 171–5.

84 Ibid., at para 169.

85 Wilson, ‘Writing History in International Criminal Trials’, 16.

86 Caring Society, 2016 CHRT 2, at para 1.

87 Caring Society, 2019 CHRT 39, at para 149.

88 See e.g. Marlee Kline, ‘Child Welfare Law, ‘Best Interests of the Child’ Ideology, and First Nations’, Osgoode Hall Law Journal 30, no. 1 (1992), 375–425; Monture, ‘A Vicious Circle’; Peter W. Choate et al., ‘Rethinking Racine v Woods from a Decolonizing Perspective: Challenging the Applicability of Attachment Theory to Indigenous Families Involved with Child Protection’, Canadian Journal of Law and Society 34, no. 1, doi:10.1017/cls.2019.8. Anthropologists Signe Howell similarly raises a contradiction between individualist and relational perceptions of personhood and their implications for ideas of child’s best interests in the context of transnational adoption in The Kinning of Foreigners: Transnational Adoption in a Global Perspective (New York: Berghahn Books, 2006).

89 Caring Society, 2019 CHRT 39, at para 2.

90 Kirsch, ‘Property Effects’, 155.

91 Stevenson, Intimate Integration, 11, 41, 116; see also e.g. Cartier & Mercredi, ‘Status of Child Welfare Service’, 164–5; Monture, ‘A Vicious Circle’, 3; Truth and Reconciliation Commission of Canada, The Legacy, 103–8.

92 Caring Society, 2016 CHRT 2, at para 106.

93 Caring Society, 2019 CHRT 39, at para 193.

94 See Woolford and Hounslow, ’Criminology’s Time’, 200.

95 Wilson, ‘Writing History in International Criminal Trials’, 8, 16.

96 Ibid., 8, 78.

97 Caring Society, 2016 CHRT 2, at para 404.

98 Ibid., at paras 406, 408–10, 415–21.

99 Ibid., at para 422.

100 Metallic, ‘A Human Right to Self-Government’, 30, 32.

101 Caring Society, 2016 CHRT 2, at para 403.

102 See e.g. Hannah Arendt. ‘Collective Responsibility’, in Responsibility and Judgment, ed. Jerome Kohn (New York: Shocken Books, 2003).

103 Wakeham, ’The Slow Violence’, 350; Dylan Robinson, ‘Intergenerational Sense, Intergenerational Responsibility’, 63.

104 See e.g. Coulthard, Red Skin, White Masks; Maxwell, ‘Settler-Humanitarianism’; Million, Therapeutic Nations.

105 Povinelli, Economies of Abandonment, 144.

106 Maxwell, ’Settler-Humanitarianism’, 980; McKenzie et al., ’Disrupting Continuities’, 8.

107 Povinelli, Economies of Abandonment, 133.

108 Canada, T-1559-20 (FC) at para 92.

109 Povinelli, Economies of Abandonment, 13, 132, 158; see also Wakeham, ‘The Slow Violence’, 351.

110 Canada, T-1559-20 (FC) at para 91.

111 Caring Society, 2019 CHRT 39, at paras 177, 245.

112 Caring Society, 2016 CHRT 2, at paras 309, 314.

113 See note 107 above; Das, Life and Words, 7.

114 Caring Society, 2019 CHRT 39, at paras 163–165, Caring Society, 2016 CHRT 2, 425.

115 Ibid., at paras 422, 425.

116 Caring Society, 2016 CHRT 2, at paras 272, 305.

117 Caring Society, 2019 CHRT 39, at para 163.

118 Maxwell, ‘Settler-Humanitarianism’, 977.

119 Wakeham, ‘Slow Violence’, 350; Robinson, ‘Intergenerational Sense, Intergenerational Responsibility’, 63

120 Caring Society, 2016 CHRT 2, at paras 410, 412, 415–22; Caring Society, 2019 CHRT 39, at paras 168–9, 171– 175.

121 See e.g. Taiaiake Alfred, ‘Colonialism and State Dependency’, Journal of Aboriginal Health (November 2009), 42–60; Colin Samson, ‘A Colonial Double-Bind: Social and Historical Contexts of Innu Mental Health’, in Healing Traditions: The Mental Health of Aboriginal Peoples in Canada, ed. Laurence Kirmayer, Gail Guthrie Valaskakis, Georges Henry Erasmus (Vancouver: UBC Press, 2008).

122 Maxwell, Settler-Humanitarianism, 979–80.

123 See e.g. Fallon et al., Denouncing the Continued Overrepresentation, 18; Natasha Beedie, David MacDonald, and Daniel Wilson, Towards Justice: Tackling Indigenous Child Poverty in Canada (Assembly of First Nations, Canadian Centre for Policy Alternatives, 2019).

124 Caring Society, 2019 CHRT 39, at paras 163–4.

125 See e.g. Loxley and DeRiviere, ‘Promoting Community and Family Wellness’, 114; McKenzie et al., ‘Disrupting the Continuities’, 14.

126 Metallic, ‘A Human Right to Self-Government’, 28, 29.

127 Castillejo-Cuellar, ‘On the Question of Historical Injuries’, 18; Wakeham, ‘The Slow Violence’, 350.

128 Caring Society, 2019 CHRT 39, at para 2.

129 Wilson, ’Writing History in International Criminal Trials’, 14, 22.

130 See note 126 above.

131 Mishuana Goeman, 'Beyond the Grammar of Settler Apologies', in Indigenous Resurgence in an Age of Reconciliation, ed. Heidi Kiiwetinepinesiik Stark, Aimée Craft and H­­o­kulani K. Aikau (Toronto, University of Toronto Press, 2023), 25.

132 Leanne Betasamosake Simpson, Dancing on Our Turtle’s Back: Stories of Nishnaabeg Re-Creation, Resurgence and a New Emergence (Winnipeg: ARP Books, 2011), 91–92.