Honouring the Children                           Shadow RepoRt                Canada 3 and 4th PeriodiC rePort to         ...
It takes a village                              housing; violence against Indigenous                                      ...
aboriginal peoples. [See R. v. Badger,      collecting information was[1996] 1 S.C.R. 771, at para. 41; R. v.     a key re...
paRt one                                  Since 2001, three federal                                          Ministers of ...
“4.17 Based on census data from                                                                                      2001 ...
son. I just knew that he deserved  “As an individual I am scared for          it- he worked very hard listening  my own ed...
paRt two                                     Canadian Government not because             to the problem, and found it to b...
Human Rights Tribunal, Shirish               and considered it so important                            Chotalia, finally i...
adequate information. The Attorney                                                                                        ...
paRt thRee                                 Jordan’s Principle                                 not being upheld            ...
spent the first two of years of his life      Landing First Nation in Novain hospital. When he was ready to go          Sc...
Land rights and                                    children’s rights                                    In its 3rd and 4th...
aboriginal rights in modern treaties”      demonstrates a failure to upholdbut expressed concern “that these          both...
Photo credit: Susanne Ure                            ConCluSion and ReCommendationS                                       ...
recommended by the RCAP have not             change. But words must now bebeen implemented by the federal              tur...
5. Canada act immediately to allocate      11. Canada use RCAP                          13. Canada ensures its domestic la...
10 Janet Smylie, MD, MPH, CCFP, Deshayne Fell, MSc,      30 FNCFCSC, Canadian Human RightsArne Ohlsson, MD, MSc, FRCPC, FA...
Copyright © 2011KAIROS: Canadian Ecumenical Justice InitiativesFirst Nations Child and Family Caring Society of CanadaPerm...
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Honouring the Children

  1. 1. Honouring the Children Shadow RepoRt Canada 3 and 4th PeriodiC rePort to rd the United nationS CoMMittee on the riGhtS oF the ChiLd oCtober 24, 2011 Submitted by: First Nations Child and Family Caring Society of Canada & KAIROS: Canadian Ecumenical Justice Initiatives “i am profoundly disappointed to note in Chapter 4 of this Status report that despite federal action in response toour recommendations over the years, a disproportionate number of First nations people still lack the most basic services that other Canadians take for granted.”—auditor General, June 2011 Status Report, Matters of Special importance
  2. 2. It takes a village housing; violence against Indigenous women; unfair and unjust land rights this distinction that rests at the heart of our ideals of ‘human rights’ today.” 2The Interim Report of the Canadian negotiations. All these factors must In its landmark 1984 decision on GuerinGovernment’s Standing Committee be taken into consideration when v. R.S.C.C., the Supreme Court of Canadaon the Status of Women states: assessing how the Government of restored “a system of law based on“[C]hildren often come into the care of Canada is meeting its obligations under principles rather than persons” as wellchild and family services not for abuse, the United Nations Convention on the as the “concept of holding ministers tobut rather because their families are Rights of the Child (UNCRC). a standard of fairness that demandsunable to provide the necessities of life.” 1 The Government of Canada’s forethought as to what conduct lendsThis inability “to provide the necessities discriminatory treatment of Indigenous credibility and honour to the Crown,of life” is due to historic and ongoing children represents a failure to meet instead of what conduct can beGovernment of Canada policies and its obligations under the UNCRC. In technically justified under the currentpractices that contradict traditional addition, it is arguably the most blatant and law. The Supreme Court clearly rebukedIndigenous holistic traditions, fail to egregious example of its failure to uphold the notion that a minister’s reasons touphold Indigenous peoples’ rights, and the principle of the honour of the Crown. act can be defended on the grounds ofdiscriminate against First Nations, Inuit political expediency.” 3and Métis families and children.These government policies and Honour of the Crown According to the Supreme Court of Canada, the Government of Canada’spractices touch on all aspects of an “The Honour of the Crown was an appeal “duty to consult with aboriginalIndigenous child’s life and include the not merely to the sovereign as a person, peoples and accommodate theirdiscriminatory allocation of community but to a traditional bedrock of principles interests is grounded in the honour ofresources and services; the lack of of fundamental justice that lay beyond the Crown. The honour of the Crown isaccess to clean water or safe, affordable persons and beyond politics. It is precisely always at stake in its dealings with2
  3. 3. aboriginal peoples. [See R. v. Badger, collecting information was[1996] 1 S.C.R. 771, at para. 41; R. v. a key recommendationMarshall, [1999] 3 S.C.R. 456.] It is not made to Canada by thea mere incantation, but rather a core UNCRC following their 2003precept that finds its application in submission:concrete practices.” “The Committee“The historical roots of the principle recommends that the Stateof the honour of the Crown suggest party strengthen andthat it must be understood generously centralizein order to reflect the underlying its mechanism to integraterealities from which it stems. In all and analyze systematicallyits dealings with aboriginal peoples, disaggregated data onfrom the assertion of sovereignty all children under 18to the resolution of claims and the for all areas covered byimplementation of treaties, the Crown the Convention, withmust act honourably.” 4 special emphasis on the most vulnerable groups (i.e. aboriginal informationCanada’s failure to act honourably is children…). The Committee urges the on the issue. Inapparent in the two-tiered system that State party to use these indicators and its submission to the UNCRC theexists whereby First Nations children on data effectively for the formulation and Government of Canada claimed toreserve receive a lesser level of service evaluation of legislation, policies and fund “evidence-based programs andfor health, welfare and education. On programmes for the implementation, services to support the developmentreserve these services come under resource allocation and monitoring of of children in an effort to address gapsfederal jurisdiction, but federal levels the Convention.” 7 in life chances between Aboriginal andof funding are consistently inequitable non-Aboriginal children.” 9when compared to provincial/territorial The Canadian Government is notlevels provided to children and families demonstrating a commitment to collect However, in 2010, the Public Healthoff-reserve. This phenomenon is widely better and more accurate data. In fact, it Agency of Canada (PHAC) and First took a large step in the other direction Nations and Inuit Health Branch ofdocumented including in the Auditor when it announced in 2010 that it Health Canada (FNIHB) were involvedGeneral’s 2011 report. in a joint working group that found would be terminating the mandatoryOne of the ways the Canadian “striking and persistent disparities”10 long-form census. This alarmed manyGovernment supports the unjust with infant mortality rates twice as Indigenous communities. A number ofallocation of funds is by claiming it has high on reserve when compared to the First Nations Chief and Councils on theinadequate information to accurately rest of Canada.11 They also identified east coast formed a coalition to take thecompare off-reserve provincial funding “significant deficiencies in the coverage issue to Federal Court where, eventually, and quality of infant mortality data forand on-reserve federal funding for their claim was overturned. First Nations.”12 The goal of the workingthe same service. For example, when group was to improve this situation, butIndian and Northern Affairs Canada These communities argued that before this could be accomplished, the(INAC)5 came before the Parliamentary “because this data is used to formulate PHAC and FNIHB withdrew from theStanding Committee on Aboriginal and implement policies, programs, group without consulting any of the fiveAffairs and Northern Development and services for aboriginal peoples, the national Aboriginal organizations thatin November 2010 and was asked if decrease in the quality of data will likely were also involved.it underfunds First Nations Child and impact the quality and availability ofFamily Services by a level of 22%, these programs and services, resulting Though internal government documentsits response was that “it is virtually in unequal treatment vis-à-vis the non- demonstrate an awareness that Firstimpossible to make any accurate aboriginal population.” 8 Nations services are being chronicallycomparison of the level of funding underfunded, Canada’s failure to collectdue to… the absence of reliable data.”6 First Nations infant mortality is another appropriate and relevant information area where there is a serious lack of on the distinct needs of IndigenousImproving services to vulnerable services because Canada is not making communities allows the government topopulations by more accurately a concerted effort to collect enough claim ignorance. 3
  4. 4. 4
  5. 5. paRt one Since 2001, three federal Ministers of Indian Affairs haveShannen’s Dream promised the students offor Safe and Comfy Attawapiskat a new school. 14 Those students are stillSchools and Equitable waiting. By 2008, the grade eight students had hadEducation enough of the broken promises and the deplorable condition of their classrooms. “We would like to ask the Led by 13 year old student Government of Canada why there Shannen Koostachin, are no schools in many of our they travelled to Ottawa to ask for a new school, communities and why so many but then Minister of of our schools are in such poor Indian Affairs Chuck condition. We want to know why Strahl said it was not possible. There the level of funding we receive is no timeline in place to provide the re-named for education is less compared community with a new school.15 “Shannen’s Dream” in her to communities in other parts of honour. Thousands of Indigenous Ontario and Canada.” (letter to Un “I would like to bring attention to and non-Indigenous children and Committee on the rights of the a slightly different situation that youth have rallied behind “Shannen’s Child from non-aboriginal and occurred recently, in Oliver BC, Dream,” which calls for “safe and comfy First nations children and youth) a newly renovated high school schools and culturally-based and endured extreme damage during equitable education” for First Nations a fire on September 12, 2011 students (http://www.fncfcs.com/ (Strachen, 2011). According to shannensdream/). “I think it unfair that I have a the recent school district website, school where I can do lots of portables have already been set up activities and where there is a and ready to go for October 5, 2011 “I would like to talk about the proper environment. The kids at (SD53, 2011) less than four weeks inequalities that most First Nations Attawapiskat have a right to the following the fire their temporary communities have. First of all, the same kind of school that I do. buildings will be ready for use. government doesn’t seem to care That’s what I learned in my Comparing it with the Attawapiskat for them, it almost seems as if they classroom when we studied that community; this had diesel fuel have forgotten about our Northern Charter of Rights. I want Stephen contaminated soil surrounding people, the government doesn’t take Harper to give more priority to all their school for 21 years before action making matters even worse. If the First Nations children.” (youth the government would bring in there was trouble with the education, Clara) temporary portables. The difference housing, or even playgrounds down being the disaster at Attawapiskat where I live, the government would was on reserve land and the Oliver fix things right away and have it school was not.” (research paper done with… For the past year, I haveThe school in Attawapiskat First Nation been raising money and awareness by student trish)in northern Ontario is condemned for these communities: doing charitybecause the land it’s built on is events, attending events, promoting Shannen’s goal of becoming a lawyercontaminated by 50,000 liters of diesel my charity, so that I may build a meant she had to leave home to attendfuel. For ten years the students have playground in these communities high school in a community hundredsused run-down portables that are which lack a right to play. I really of miles away. Tragically, while awayfreezing in winter, are fire traps, and at school, she died in a car accident. believe that I shouldn’t have to beare infested with mice. According She was 15. Before her death she doing all this because they shouldto a 2007 internal INAC document, was nominated for the International not have already been discriminated“existing portables are in need of Children’s Peace Prize. She also in the first place.” (youth Wesley,extensive repair” and there is “student spearheaded a campaign that continues supporter of “Shannen’s dream”)overcrowding in classrooms.” 13 to gain momentum and has been 5
  6. 6. “4.17 Based on census data from 2001 and 2006, the education gap is widening. The proportion of high school graduates over the age of 15 is 41 percent among First Nations members living on reserves, compared with 77 percent for Canadians as a whole… 4.22 More than six years after our previous audit, we found that INAC has taken various actions but has not maintained a consistent approach to education on reserves. It has yet to make progress in closing the education gap.” 19 Attawapiskat is only one of many First Nations communities desperately in need of a new school. As noted in the 2009 Parliamentary Budget Officer’s Report, only about 49% of First Nations schools are in good condition and yet the number of new schools being built has dramatically decreased in the last five years. 20 Thirty-five new reserve schools were built between 1990 and 2000 while only 8 schools have been built since 2006. 21 Some First Nations schools on reserve are contaminated by black mould and are not properly heated. The school on the Lake St. Martin First Nation reserve in Manitoba was closed due to an infestation of snakes. In Little Buffalo, Alberta, the Lubicon Lake First NationIn its 3rd and 4th Periodic Report to schools receive $2000-$3000 less school is closed an average of 22 daysthe UN Committee on the Rights of funding per student than provincially annually due to a lack of running water.the Child, the Government of Canada run schools.17 This funding gap is due,says it “continues to support culturally in part, to the 2% cap on annual federal “There’s a light on the other side ofrelevant elementary, secondary funding increases to First Nations that the pump house that goes red. Thatand post-secondary education for has been in place since 1996, despite tells us that there’s no water andFirst Nations and Inuit students, consistently higher inflation rates and that’s when we can’t go to school onwith overall education expenditures a burgeoning Indigenous population. some days.” (douglas, Little buffaloincreasing from $1.4 billion in 2003- To put things in perspective, between student)2004 to $1.7 billion in 2007-2008.” 16 1996 and 2003, it would have been necessary to increase funding byNotwithstanding this $300 million 3% annually just to keep pace with When the unacceptable condition ofincrease over 4 years, federal funding inflation.18 The Auditor General’s these school buildings is combinedfor schools on reserve is still not 2011 report finds INAC’s efforts to with a lack of basic supplies andadequate to meet provincial standards address the education gap between culturally appropriate curriculum, it isor to offer culturally based education. First Nations and non-Indigenous not surprising that many students loseIn fact, on average, First Nations Canadians to be unsatisfactory: hope and drop out as early as grade 5.6
  7. 7. son. I just knew that he deserved “As an individual I am scared for it- he worked very hard listening my own education and how my and learning from me. He was life that’s ahead of me is going to very patient at it.” 22 be like, if I don’t qualify to get into college. Life for us will gradually get Since it opened in 2000, worse, as yours gets easier, that’s six other First Nations not fair for us. We deserve better, students have died much, much better.” (Vicky, First tragically while enrolled at nations student) Dennis Franklin Cromarty High School in Thunder Bay. The latest death Many reserves do not have high was Grade 9 studentschools. For some First Nations Jordan Wabasse fromstudents this means their formal Webequie, who diededucation ends at Grade 8. For others, in February 2011. Anit means moving to cities far from inquest that was scheduled to portfolio,their home to attend high school, and begin in 2007 following the deathliving there for most of the year. This says that of another student, Reggie Bushie,is the case for some of the Nishnawbe “each of these deaths is a tragedy and was delayed due to legal arguments.Aski Nation (NAN) students living in they must stop. We demand that the It is set to resume this year and maynorthwestern Ontario who attend governments of Ontario and Canada include recommendations about howDennis Franklin Cromarty High School to avoid student deaths at the school. work with First Nation leaders andin Thunder Bay. This school is run by Unfortunately, these recommendations educators to ensure that adequatethe Northern Nishnawbe Education will come too late for the two students support services are in place forCouncil for First Nations students living who have died since the inquest was students who must travel away fromin remote communities. first announced. 23 home for secondary school and to work with us to develop educationKyle Morriseau, age 17, went missing NAN Deputy Grand Chief Terry services in all First Nations that are onwhile attending this school in 2007 and Waboose, who holds their education par with the rest of Canada.” 24two weeks later his body was foundin the river. It was his first time livingaway from his family and although hisfather had wanted to board with him, ithad not been possible to find the fundsto do so.Kyle was an artist like his father, andgrandfather, the famous First Nationsartist Norval Morriseau who was thefirst Indigenous artist ever to have afull art exhibition at the National ArtGallery in Ottawa in 2006. Accordingto Christian Morriseau, Kyle`s father,“He (Kyle) had a very good heart, a veryforgiving heart as well and he reallyenjoyed the outdoors and he loved to Photo credit: Cindy Blackstockpaint… I had my first art show with[Kyle] in the spring of 2008 in Ottawa.That night he sold nine paintingsand I only sold four- that’s one of theproudest moments I ever felt with my 7
  8. 8. paRt two Canadian Government not because to the problem, and found it to be flawed and inequitable. 29 The First Nations child welfare serviceCanada failing First providers are not funded at provincial complaint says that contrary to sectionNations children in levels, but because this could lead to litigation: 5 of the Canadian Human Rights Act, Canada is discriminating based onchild welfare “[C]ircumstances are dire… as a race and national ethnic origin by failing to provide First Nations children consequence of providing inadequate with equitable and culturally based prevention resources, it is foreseeable services. The case is historic because “When I learned of the Tribunal for that civil proceedings could be it is the first time the federal the Rights of Aboriginal children I initiated against the Government of government is being held to account was astounded… The government Canada as a result of neglect or abuse before an entity capable of changing is taking what seems to be a of children in care.” 27 the way services are delivered. This backwards stance on this issue. proceeding is also the most watched They should be supporting the fight The underfunding of First Nations child legal case in Canadian history, with for Aboriginal rights because they welfare has entered the legal arena. over 8100 individuals, particularly dare to say that we are a society of In 2007 the Assembly of First Nations children and youth, following the case equals; clearly this is not the case.” (AFN) and the First Nations Child through the “I am a witness” campaign (i am a Witness reflection by and Family Caring Society of Canada (www.fnwitness). youth Leslie) (FNCFCSC) brought a complaint before the Canadian Human Rights Tribunal Instead of fighting the case on its alleging that First Nations child welfare merits, Canada claimed that sinceIn 2008, the Auditor General’s Report services on reserve are structured the services are being delivered byfound that INAC “had no assurance and funded in ways that result in First Nations child welfare agencies,that its First Nations Child and inequitable and discriminatory impacts the government cannot be heldFamily Services Program funded for First Nations children, youth and accountable for inadequate andchild welfare services that were families. A First Nations Child and culturally inappropriate services. Inculturally appropriate or reasonably Family Services Joint Policy Review addition, Canada argues its fundingcomparable with those normally released in 2000 suggested that the and policy regimes for children cannotprovided off reserves in similar federal government underfunds be compared to those provided by thecircumstances.” 25 In the 2011 follow- child welfare by 22% compared to provinces even when the children areup audit, progress to address this issue what other children receive.28 A subject to the same laws. This amountswas found to be unsatisfactory. 26 subsequent review done in 2005 to the unloading of responsibility to suggested that an additional $109 agencies with no control over fundingDocuments from the Department of million per year was needed to meet levels and that are severely constrainedIndian and Northern Affairs Canada basic parity excluding the Territories in their ability to deliver programmingobtained under Access to Information and Ontario. The Auditor General has and allocate resources.suggest this failure to provide a reviewed Canada’s enhanced fundingcomparable level of child welfare arrangement, identified by the In March of this year, the government-services on reserve is of concern to the Canadian Government as the solution appointed chair of the Canadian8
  9. 9. Human Rights Tribunal, Shirish and considered it so important Chotalia, finally issued a ruling on the that it became an active complaint just a few weeks after being participant in the process. the target of public criticism for taking Canada challenged the so long to render a decision.30 After Tribunal’s jurisdiction to hear nearly 18 months of deliberation, Ms. the complaint in Federal Chotalia essentially dismissed the Court but the claim was case on a technicality, claiming in her dismissed—a decision that 67-page ruling that “[i]n order to find was upheld on appeal. that adverse differentiation exists, one Ms. Chotalia took office has to compare the experience of the two weeks prior to the alleged victims with that of someone scheduled November 2009 start of the Tribunal else receiving those same services from hearings. With no notice, the same provider.” 31 In other words, and without application Ms. Chotalia was saying the Tribunal by any of the parties, was not able to decide if Ottawa’s Ms. Chotalia vacated all of the hearing funding is discriminatory because it dates for reasons that are still not permission to film its had nothing to compare it to. clearly understood, causing a further proceedings. In its request, the APTN delay in the proceedings. In December argued that the Tribunal’s decision One reason this decision is cause for of 2009, Canada again filed to have would profoundly affect the lives of concern is that if the Tribunal’s decision the complaint dismissed, this time First Nations living on reserve and stands, “it would allow the federal with success, even though this same that it was “an historic opportunity government to provide a lesser level argument had already been dismissed for transparency to prevail.” 33 A single of service to First Nations children on by the CHRC and Federal Court. mother of the Opaskwayak Cree Nation reserve without any recourse under in Manitoba explained how televising Canadian human rights law.” 32 An appeal by the AFN and the FNCFCSC the hearings could have a positive The process which led to this decision to the Federal Court is underway. is also cause for concern. The Canadian A small inroad was made when the Human Rights Commission (CHRC) “The injustices I experienced while Federal Court overturned the Tribunal’s referred the complaint to the Human under welfare protection continue to decision to deny the Aboriginal Rights Tribunal in September 2008 affect me in a way that is impossible Peoples Television Network’s (APTN) for me to convey. I believe that viewing the proceedings will help validate the feelings of injustice I have experienced all my life… I am hopeful that if our stories are heard, things will change for First Nations children.” 34 (single mother, opaskwayak Cree nation) impact on children’s lives. While transparency did not prevail at the Tribunal, it did prevail at the Federal Court. In Canada’s report to the UNCRC, there is no mention of this serious allegationPhoto credit: Susanne Ure of discrimination in child welfare. As of 2007, there were about 8,300 on reserve children in care which, 9
  10. 10. adequate information. The Attorney General’s 2008 report says the data that does exist indicates poor outcomes for children in care.38 In her award winning series on missing and murdered First Nations women in Indian Country Today, Navajo journalist Valerie Taliman, wrote that children on reserve who enter foster care off reserve become disconnected from their communities and, if they suffer abuse, they have nowhere to go. Some children escape but end up homeless and can be forced into child prostitution, as young as 11.39 “Stripped of family, language, culture and a proper education, many children have nowhere to turn once they leave foster care, and end up in vulnerable situations seeking shelter and food on the streets.”40 The Native Women’s Association of Canada (NWAC) has collected data on 582 missing and murdered Aboriginal women in the last two decades. Children have been deeply affected by this gendered, racialized violence in a number of ways. Of the documented murders and disappearances, nearly 100 were girls under the age of 18.41 In addition, when it was possible to obtain the information, the overwhelming majority of the missing and murdered women were mothers; more than 440 children are known to have suffered the loss of their mother.42 It is widely believed that these numbers represent only the tip of the iceberg. More information on the way that the loss of these women may beaccording to the Auditor General’s Deputy Grand Chief of the Union of causing children to enter state care is2008 report, is approximately 8 times Ontario Indians Glen Hare said “now needed. This is evident in a statementthe number of off reserve children in that Canada has finally endorsed the made by INAC when it appeared beforecare.35 In this same report, the Auditor United Nations Declaration on the Rights the Standing Committee on the StatusGeneral highlighted that the formula of Indigenous Peoples… it needs to of Women in March 2011:used to determine funding levels for understand that forcibly removing children from one group of peoples to “Because we don’t collect this kindchild and family service agencies on another is considered genocide by the of information, we have no way ofreserve is inequitable. It is based on the knowing how many children who lose standards of international law.” 37assumption that 6% of children are in their mothers or grandmothers or othercare when in fact that number varies First Nations child welfare is another relatives, come into contact with thewidely from 0% to 28%.36 area where Canada is not compiling child welfare system as a result.” 4310
  11. 11. 11
  12. 12. paRt thRee Jordan’s Principle not being upheld “Children shouldn’t have to suffer for the Government’s negligence and ignorance. Each child is unique in their little ways, even when their challenges are far greater than the normal children’s. What is normal in this day and age? Children with any type of disability shouldn’t have to suffer from the present system. It’s heart breaking and it’s all about love.” (tahoe niin, Maurina beadle) In its report, Canada states that “[t]he Federal Budget 2005 provided $1.3 billion over five years to be dedicated to First Nations and Inuit health programs, including new investments for nursing and human capital development on reserve.”44 What the report fails to mention, however, is that First Nations on reserve are continuing to lose out; they do not have access to the same health services as other children in Canada. Furthermore, the Canadian government is aware of this short-coming but again, as with child welfare, INAC is framing their concerns not in terms of a child’s right to health care, but as a situation to be managed with the goal of avoiding litigation: “Although we have not found… situations where the federal government has been found liable because of child fatalities or critical incidents relating to failure to provide necessary medical services, we believe that they exist and that, unless solutionsPhoto credit: Cindy Blackstock are found, they will continue to occur.” 45 Jordan River Anderson was from Norway House Cree Nation in Manitoba. Due to complex medical needs he12
  13. 13. spent the first two of years of his life Landing First Nation in Novain hospital. When he was ready to go Scotia. She has lovingly caredhome all the services he would need for her 16-year old son Jeremyfor home care were available, but the his whole life. Jeremy hasfederal and provincial government hydrocephalus, cerebral palsy,could not agree on who should pay. spinal curvature and autism.For more than two years the dispute His mother recently sufferedbetween the two levels of government a stroke and is no longercontinued despite pleas from Jordan’s able to provide Jeremy withfamily, medical staff and the First Nation the care he needs. Theto stop blocking Jordan’s homecoming. provincial governmentJust before his 5th birthday Jordan has refused to providetragically died, never having known home care because itanywhere but the inside of a hospital. considers this to be the responsibility of theHis family was grief-stricken but they federal government,turned their painful experience into while the federal government providesan opportunity to end this type of health care funding that is inadequate Some Firstdiscrimination for other children and inconsistent with provincial Nations children on reserve arethrough Jordan’s Principle. This child- not only denied access to health care, standards.48first principle says that the government but are unable to access safe drinkingof first contact will pay the health care water and are faced with housingcosts for a First Nations child on reserve, “Nationally, the Canadian conditions that can be detrimental toand that disputes between levels of government does not provide their health. A 2006 Assembly of Firstgovernment will be a secondary matter Assisted Living funding for Nations report found that 1 in 3 Firstand not act as a barrier to accessing children and youth with special Nations people consider their maincare. Member of Parliament Jean drinking water unsafe while 12% of needs, although it recognizesCrowder tabled Jordan’s Principle as a communities have to boil their water.49 its obligation to do so. This has As for housing, Canada’s report statesprivate member’s bill in 2007 and it was resulted in some First Nations that “Aboriginal housing remains aunanimously adopted (http://www. parents giving up custody of their priority for the Government of Canada.fncfcs.com/jordans-principle). children to provincial authorities An estimated $272 million a year is so that assisted living services can provided to address housing needs onOn the day Jordan’s father, Ernest be accessed off reserve.” reserve.” However, according to INACAnderson, witnessed the parliamentary (Pictou Landing band Council data included in the Auditor General’sadoption of the principle named for his and Maurina beadle v. attorney 2011 report, between 2003 and 2009,son’s memory he warned that unless General of Canada) there has been a 135% increase in theit was immediately put into practice need for on reserve housing:50the act would be nothing more thana symbolic gesture. 46 Sadly, Jordan’s If the Pictou Landing Band Council “[P]oor housing on reserves has beenPrinciple remains unimplemented by does not receive the funds to provide shown to have a detrimental effectthe majority of Canada’s provinces and Maurina and Jeremy with home care on the health, education, and overallterritories and the federal government services, Jeremy may be sent hundreds social conditions of First Nationshas attempted to narrow its use by of miles away to an institution. There members and communities… For is no doubt Jeremy and his mother several years, mould contaminationhaving it apply only to children whose would not be facing this predicament has been identified as a serious healthconditions require the involvement and safety problem in First Nationsof numerous service providers.47 First if they were non-Indigenous people reserves, liable to cause respiratoryNations children on reserve continue to or living off reserve. Jordan’s Principle illnesses such as asthma. In this audit,be denied care because they are caught should protect them, but instead we found that housing conditionsin the middle of jurisdictional disputes. they are forced to challenge the on reserves are worsening. We also government in Federal Court in order found that federal organizations haveMaurina Beadle is a single mother to get services that are readily available not taken significant direct actions toand a band member of the Pictou to other Canadians. remediate mould contamination.” 51 13
  14. 14. Land rights and children’s rights In its 3rd and 4th Periodic Report to the UNCRC, Canada acknowledges the link between land rights and the well being of children. “Within land claims and self- government agreements, the Government of Canada ensures that the best interests of the child are taken into account.” 52 Unfortunately, Canada’s policies and practices continue to be an obstacle towards the conclusion of land rights and self-government agreements by forcing Indigenous peoples and communities to agree to never assert their rights as a condition of settlement. These policies remain in place despite repeated requests by various UN human rights committees to revise them because they violate Indigenous peoples’ rights. Canada’s Comprehensive Land Claims Policy applies to Indigenous lands not covered by Treaty. It requires Indigenous people to relinquish their rights or title to significant shares of their traditional lands as a condition of settlement. In 1999, the UN Human Rights Committee asked that this federal practice of extinguishing inherent Indigenous rights be abandoned because it violates the International Covenant on Civil and Political Rights and the International Convention on Economic, Social and Cultural Rights. In 2002, the UN Committee on the Elimination of Racial Discrimination also raised the issue of extinguishment.53 Photo credit: John MacDonald In its subsequent report in 2005, the Human Rights Committee noted Canada’s efforts to establish “alternative policies to extinguishment of inherent14
  15. 15. aboriginal rights in modern treaties” demonstrates a failure to upholdbut expressed concern “that these both the honour of the Crownalternatives may in practice amount and the best interest of the child.to extinguishment of aboriginalrights.” Specifically the UNHRC said Significantly, the failureCanada “should re-examine its policy to conclude land rightsand practices to ensure they do not negotiations is not limitedresult in extinguishment of inherent to situations where theaboriginal rights.”54 Comprehensive Land Claims Policy applies. ForIn 2006, in its response to the list of example, there has beenissues taken up in connection with the little progress in resolvingconsideration of its fourth periodic the Lubicon Lake Creereport to the UN Committee on First Nation’s outstandingEconomic, Social and Cultural Rights, land rights, which theCanada said there is no longer an federal government sees as a Inextinguishment requirement in thesettlement of land rights. specific claim. United Nations Special 2005, Rapporteur on the Rights of Indigenous the UN Human RightsHowever, in its Concluding Peoples, James Anaya, in his Committee expressed concern “that examination of the Lubicon case, urged land claim negotiations betweenObservations, the UN CESCR expressed the government to move forward with the Government of Canada and theconcern that Canada’s new approaches, the land rights negotiations, citing Lubicon Lake Band are currently at annamely the “modified rights model” impasse. It is also concerned aboutand the “non-assertion model,” “do not lack of services as an outcome of this information that the land of the Banddiffer much from the extinguishment unresolved settlement agreement: continues to be compromised byand surrender approach.” It also logging and large-scale oil and gasexpressed regret that it had yet to “[The Lubicon] community does not extraction, and regrets that the Statereceive “detailed information on other receive adequate basic services or access party has not provided informationapproaches based on recognition to water. Because of the non-resolved on this specific issue.” 58and coexistence of rights, which are status of these lands, federal andcurrently under study.” 55 provincial authorities do not agree on Six years later, Lubicon land rights their competencies and responsibilities.”57 remain unresolved.In 2007, the UN Committee on theElimination of Racial Discriminationsaid it “remains concerned aboutthe lack of perceptible difference inresults of these new approaches incomparison to the previous approach.”It recommended that Canada “ensurethat the new approaches taken tosettle aboriginal land claims donot unduly restrict the progressivedevelopment of aboriginal rights.”56While it is encouraging that theComprehensive Land Claims Policyis one of the issues identified inthe recently announced Assemblyof First Nations – Government ofCanada Joint Action Plan (www.afn.ca), Canada’s decision not to act on therecommendations of the UN committees 15
  16. 16. Photo credit: Susanne Ure ConCluSion and ReCommendationS fundamental freedoms of Indigenous “As a young Canadian child, it makes therefore includes free healthcare, people, presented a report to the UN my heart break to think that the First free education and equal rights, so Commission on Human Rights that Nations don’t have the same rights why are they the exception? I would urged governments in Canada to and opportunities that I have. Simply also like to know, why this is being do more to close the human rights because I am a non-aboriginal child allowed, why are they being put gap between Indigenous and non- means that I get to receive a proper aside? And an effortless apology Indigenous people in Canada. His education in a nice, safe, warm won’t make the gruesome problem report, published in 2004 following his school? And they inherit a school disappear. The First Nations have official visit to Canada, listed numerous with gallons of diesel fuel in the waited nine years to have the same instances of where the failure of ground, on a toxic waste land, with rights as we do, nine years is long federal, provincial and territorial no heating inside and only a fence enough so please don’t let a tenth go governments to fulfill their obligations to ‘separate’ the two? Canada is by.” (Kayla, in a letter to Canadian to Indigenous peoples has contributed supposed to be a free country, Prime Minster Stephen harper) to impoverishment, ill-health and social strife. In 2004, UN Secretary-General Kofi knowledge overlooked; and their Annan opened the third session of the sustainable ways of developing natural In 2006, on the occasion of the 10th UN Permanent Forum on Indigenous resources dismissed. Some have even anniversary of the Report of the Royal Issues by stating: “For far too long the faced the threat of extinction... The Commission on Aboriginal Peoples hopes and aspirations of indigenous answer to these grave threats must be (RCAP), the Assembly of First Nations peoples have been ignored; their to confront them without delay.” (AFN) published a Report Card that lands have been taken; their cultures assessed the response and actions of denigrated or directly attacked; their In 2005, Rodolfo Stavenhagen, as the federal government to the RCAP languages and customs suppressed; United Nations Special Rapporteur on recommendations. According to the their wisdom and traditional the situation of the human rights and AFN, the key restructuring initiatives 16
  17. 17. recommended by the RCAP have not change. But words must now bebeen implemented by the federal turned into action. Indigenousgovernment and as a result, “the reality and non-Indigenous peoplesfor First Nations communities today is in Canada must collaborateongoing poverty,” and an increasing to ensure the Governmentgap in living conditions with non- of Canada works withIndigenous Canadians. Indigenous peoples to fully and meaningfullyIn February 2009, at its first implement the UNexamination under the Human Rights Declaration in order toCouncil’s Universal Periodic Review, the bring equity and justice.United Nations raised concerns aboutCanada’s performance on a number The followingof human rights issues, including the recommendations arewelfare of Indigenous peoples. respectfully made toThese concerns were detailed in the United Nationsthe United Nation’s most recent Committee on the Rights of the Child developpublication, State of the World’s in consideration of Canada’s periodicIndigenous Peoples, which was released programmes and review: policies to ensure that all families havein January 2010. At 238 pages, it isthe most thorough publication the adequate resources and facilities); 45 1. Canada act immediately on the (that the State party further improve theUN has published on the plight of the recommendations put forward by theworld’s Indigenous peoples. State of the quality of education); 59 (The Committee UNCRC following its review of CanadaWorld notes that “Canada recognizes urges the Government to pursue its in 2003, in particular those relevantthat key socio-economic indicators for efforts to address the gap in life chances to Indigenous children in paragraphsAboriginal people are unacceptably between Aboriginal and non-Aboriginal 13 (rights-based national plan oflower than for non-Aboriginal children ... The Committee equally notes action); 20 (integrate and analyseCanadians,” and that while the living the recommendations of the Royal systematically disaggregated data …standard of Indigenous peoples have Commission on Aboriginal Peoples and for the formulation and evaluation ofimproved over the past 50 years, they encourages the State party to ensure legislation, policies and programmes);still “do not come close to those of non- appropriate follow-up). 22 (strengthen its legislative effortsAboriginal people.”59 to fully integrate the right to non- 2. The Committee engage a specialCanada is one of the world’s richest discrimination in all relevant legislation study on Canada’s implementation ofcountries, and consistently ranks concerning children); 25 (that the principle of “best interests of the child” the UNCRC with respect to the rights ofamong the best places to live. Indigenous children pursuant to sectionUnfortunately, this is not the reality for contained in article 3 be appropriately analysed and objectively implemented 45 (c).far too many Indigenous people wholive in Canada, in particular Indigenous with regard to individual and groups of children in various situations, e.g. 3. Canada work in collaboration withchildren. There are few countries with Aboriginal children); 35 (that the State Indigenous peoples in Canada on thethe same capacity to fully implement party undertake measures to ensure full and effective implementation ofthe United Nations Convention on the that all children enjoy equally the same the United Nations Declaration onRights of the Child. Implementationof the Convention would address the quality of health services, with special the Rights of Indigenous Peoples, inincreasing gap in living standards attention to indigenous children and particular those articles relevant toidentified by the UN’s State of the children in rural and remote areas); Indigenous children.World’s Indigenous Peoples report. 42 (that further research be carried out to identify the causes of the 4. Canada work with IndigenousWhen the Government of Canada spread of homelessness, particularly peoples to allocate and structureendorsed the United Nations among children); 43 (that the State sufficient financial, material and humanDeclaration on the Rights of party continue to address the factors resources to ensure the safety, bestIndigenous Peoples in 2010, it made responsible for the increasing number interests and cultural and linguistica great leap forward towards positive of children living in poverty and that it rights of Indigenous children. 17
  18. 18. 5. Canada act immediately to allocate 11. Canada use RCAP 13. Canada ensures its domestic laws,and structure sufficient financial, Recommendation 2.2.6 as the basis government policies and practicesmaterial and human resources to for a new Comprehensive Land Claims are fully consistent with the UNensure the full enjoyment of education, Policy: With regard to new treaties Convention on the Rights of thecultural and linguistic rights for and agreements, the Commission Child and implements immediateIndigenous children. recommends that the federal and effective measures to ensure government establish a process for Indigenous children, young people and6. Canada, in full partnership with making new treaties to replace the families are aware of their rights underIndigenous peoples, act immediately to existing comprehensive claims policy, the Convention.ensure that government jurisdictional based on the following principles:disputes do not impede or delayIndigenous children from receiving (a) The blanket extinguishment ofgovernment services available to other Aboriginal land rights is not an option.children, including the full and proper (b) Recognition of rights ofadoption and implementation of governance is an integral componentJordan’s Principle. of new treaty relationships. (c) The treaty-making process is endnoteS7. Canada act immediately to establish, 1 Standing Committee on the Status of Women. available to all Aboriginal nations,in collaboration with Indigenous Interim Report “Call into the Night: An Overview of including Indian, Inuit and Métispeoples, a national, independent Violence Against Aboriginal Women.” March 2011, nations. p. 11.mechanism empowered to implementreforms, and available to receive, (d) Treaty nations that are parties to 2 David M. Arnot. “The Honour of First Nations – Theinvestigate and respond to reports of peace and friendship treaties that Honour of the Crown: The Unique Relationship ofindividual and systemic child rights did not purport to address land and First Nations with the Crown.” Conference paper givenviolation. resource issues have access to the at State of the Federation Conference. University of treaty-making process to complete Toronto, November 2010, p. 8.8. Canada allocate adequate their treaty relationship with the 3 Ibid. p. 9.resources and work with Indigenous Crown.peoples to devise and implement a 4 Haida Nation v. British Columbia (Minister of Forests)comprehensive strategy and action 12. When negotiating land rights, [2004] 3 S.C.R. 511.plan to ensure that Indigenous housing Canada’s policy should conformis improved to a decent and healthy 5 Although earlier this year the department changed to the guiding principles in RCAP its name to Aboriginal and Northern Developmentstandard. recommendations 2.4.1, specifically Canada (AANDC), Indian and Northern Affairs Canada sections (a) to (d): (INAC) is used throughout to avoid confusion because9. Canada base future governance all the documents cited were written before the (a) Aboriginal title is a real interestdiscussions on Recommendation 2.3.2 name change. in land that contemplates a rangeof the Royal Commission on AboriginalPeoples: All governments in Canada of rights with respect to land and 6 INAC before The Standing Committee on Aboriginal resources. Affairs and Northern Development, Novemberrecognize that Aboriginal peoples are 24, 2010, p. 128. (obtained through access tonations vested with the right of self- (b) Aboriginal title is recognized information)determination. and affirmed by section 35 (1) of the Constitution Act, 1982. 7 UN Committee on the Rights of the Child. CRC/C/15/10. Canada use Recommendation Add.215, 3 October 2003. 34th session, Concluding (c) The Crown has a special fiduciary Observations of the Committee on the Rights of the2.4.2 of the Royal Commission on obligation to protect the interests Child: CANADA. p. 5, para. 20.Aboriginal Peoples as the basis for of Aboriginal people, includingrevising future governance discussions 8 Native Council of Nova Scotia, New Brunswick Aboriginal title.with First Nations: Federal, provincial Aboriginal Peoples Council, Native Council of Princeand territorial governments, through (d) The Crown has an obligation to Edward Island, Maritime Aboriginal Peoples Council,negotiations, provide Aboriginal protect rights concerning lands Chief Jamie Gallant, Chief Kim Nash-Mckinley and Chiefnations with lands that are sufficient and resources that underlie Grace Conrad v. The Attorney General of Canada 2011 FC 72.in size and quality to foster Aboriginal Aboriginal economies andeconomic self-reliance and cultural and the cultural and spiritual life of 9 Canada’s Third and Fourth Periodic Report to thepolitical autonomy. Aboriginal peoples. UNCRC, p. 20, para. 97.18
  19. 19. 10 Janet Smylie, MD, MPH, CCFP, Deshayne Fell, MSc, 30 FNCFCSC, Canadian Human RightsArne Ohlsson, MD, MSc, FRCPC, FAAP, and the Joint Complaint: Equity for First Nations ChildrenWorking Group on First Nations, Indian, Inuit, and Briefing Note II: History and Status of theMétis Infant Mortality of the Canadian Perinatal Complaint.Surveillance System. ‘A Review of Aboriginal InfantMortality Rates in Canada: Striking and Persistent 31 FNCFCSC et al. v. Attorney General ofAboriginal/Non-Aboriginal Inequities’. Canadian Canada, 2011 CHRT 4, para. 10.Public Health Association. (2010). p. 147. 32 Interview with Cindy Blackstock on11 Ibid. p. 146. Bamoseda Report. March 18, 2011.12 Ibid. p. 147. 33 Aboriginal Peoples Television Network v. Canadian Human Rights13 INAC document ON4324, (obtained through access Commission et. Al. 2011 FC 810,to information) p. 16. Annex A.14 Ibid. p.12. 34 Ibid. p. 2.15 Ibid. p. 26. 35 2008 May Report of the Auditor General of Canada, para. 4.12. 5016 Canada’s Third and Fourth Periodic Report to the 2011 JuneUNCRC, p. 19, para. 91. 36 Ibid. para. 4.52. Status Report of the Auditor General of Canada, Exhibit 4.4.17 Michael Mendelson. Improving Education on 37 Union of Ontario Indians. “Forcible foster careReserves: A First Nations Education Authority Act. ‘genocide’: UN Declaration.” 2010 Press Release. 51 2011 June Status Report of the Auditor General ofCaledon Institute. 2008, p. 6. Canada, para. 4.35. 38 2008 May Report of the Auditor General of Canada,18 Ibid. p. 2. para. 4.13. 52 Canada’s Third and Fourth Periodic Report to the UNCRC p. 10, para. 41.19 2011 June Status Report of the Auditor General of 39 Valerie Taliman. “Trafficking our Children.” Indian 53 UN Human Rights Committee. CCPR/C/79/Canada. Preface to Ch. 4. Country Today. July 28, 2010. Add.105. 7 April 1999. Concluding Observations/20 Parliamentary Budget Officer. The Funding 40 Valerie Taliman. “Children Dying While Predators Comments: CANADA. pps. 2-3. para. 8. UNRequirement for First Nations Schools in Canada. 2009, Roam Free.” Indian Country Today. August 11, 2010. Committee on the Elimination of Racialp. 6. Discrimination. CERD/C/61/CO/3. 5-23 August 2002. 41 Native Women’s Association of Canada. What Their Concluding Observations. CANADA. paras. 329-331.21 Ibid. Stories Tell Us. 2010, p. 23. 54 UN Human Rights Committee. CCPR/C/CAN/CO/5,22 CBC Radio’s The Current. From an interview with 42 Ibid. p. 24. 27 & 28 October 2005. Concluding Observations ofChristian Morriseau, 2009. the Human Rights Committee: CANADA. p. 2, para. 8. 43 First Nations Child and Family Services appearance 55 UN Committee on Economic, Social and Cultural23 Ontario Ministry of Community Safety and before the Standing Committee on the Status of Rights. E/C.13/CAN/CO/5/CRP.1, 1-19 May 2006.Correctional Services. News Release: Inquest into the Women. February 15, 2011. p. 15. Concluding Observations: CANADA. p. 4, para. 16.Death of Reggie Bushie Announced. 44 Canada’s Third and Fourth Periodic Report to the 56 UN Committee on the Elimination of Racial24 Tanya Talaga.”Missing Aboriginal Teen Found Dead UNCRC. p. 15, para. 67. Discrimination. CERD/C/CAN/CO/18. 25 May 2007.in Thunder Bay’.” The Star. 2011. Concluding Observations. CANADA. p. 6, para. 22. 45 INAC document on Jordon’s Principle obtained25 2011 June Status Report of the Auditor General of through access to information (002474) likely dated 57 UN SR on housing A/HRC/10/7/ Add.3 (2009),Canada. para. 4.47. 2006/2007. para. 75 in James Anaya’s report on the Lubicon Land Claim, http://unsr.jamesanaya.org/cases-2010/10-26 Ibid. Exhibit 4.6. 46 UNICEF Canada. “Leave no child behind.” p. 49 in canada-the-transcanada-oil-pipeline-operation- FNCFCSC January 2011 UNCRC Shadow Report p. 8. carried-out-in-the-traditional-lands-of-the-lubicon-27 Government of Canada document obtained under lake-nation-and-the-lubicon-land-claimaccess to information. 47 FNCFCSC January 2011 UNCRC Shadow Report p. 9. 58 UN Human Rights Committee. CCPR/C/CAN/CO/5,28 First Nations Child and Family Services appearance 48 Pictou Landing Band Council & Maurina Beadle 27 & 28 October 2005. Concluding Observations ofbefore the Standing Committee on the Status of and Attorney General of Canada. Court File #: T-1045- the Human Rights Committee: CANADA. p. 2, para. 9.Women. 2011, p. 27. 11. pp. 5-6. 59 United Nations Department of Economic and29 2008 May Report of the Auditor General of Canada. 49 Assembly of First Nations. Royal Commission on Social Affairs. State of the World’s Indigenouspara. 4.64. Aboriginal Peoples at 10 Years: A Report Card. 2006. p. 3. Peoples. New York, New York. 2009. p. 24. 19
  20. 20. Copyright © 2011KAIROS: Canadian Ecumenical Justice InitiativesFirst Nations Child and Family Caring Society of CanadaPermission to copy for educational use is granted. Please credit KAIROS and the First Nations Child and Family Caring Society.All Photos by Liam Sharp, unless otherwise noted.Thanks to the teachers, staff, parents and students of Pierre Elliott Trudeau Elementary School in Gatineau, Quebec whocontributed the Shannen’s Dream artwork.Design by Cathy VandergeestWritten by Katy Quinn KaiRoS: First nations Child and Family Canadian ecumenical Justice initiatives Caring Society of Canada 310 Dupont Street, Suite 200, Suite 302 - 251 Bank Street, Toronto, ON M5R 1V9 Ottawa ON K2P 1X3 Tel: 416-463-5312 | Toll-free: 1-877-403-8933 Tel: 613-230-5885 | Fax: 613-230-3080 Fax: 416-463-5569 | www.kairoscanada.org www.fncaringsociety.com