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 to
our 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. 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.” 2
The Interim Report of the Canadian negotiations. All these factors must
In its landmark 1984 decision on Guerin
Government’s Standing Committee be taken into consideration when
v. R.S.C.C., the Supreme Court of Canada
on 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 well
child and family services not for abuse, the United Nations Convention on the
as the “concept of holding ministers to
but rather because their families are Rights of the Child (UNCRC).
a standard of fairness that demands
unable to provide the necessities of life.” 1
The Government of Canada’s forethought as to what conduct lends
This 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 be
Government of Canada policies and its obligations under the UNCRC. In technically justified under the current
practices that contradict traditional addition, it is arguably the most blatant and law. The Supreme Court clearly rebuked
Indigenous holistic traditions, fail to egregious example of its failure to uphold the notion that a minister’s reasons to
uphold Indigenous peoples’ rights, and the principle of the honour of the Crown. act can be defended on the grounds of
discriminate against First Nations, Inuit political expediency.” 3
and Métis families and children.
These government policies and Honour of the Crown According to the Supreme Court of
Canada, the Government of Canada’s
practices touch on all aspects of an “The Honour of the Crown was an appeal “duty to consult with aboriginal
Indigenous child’s life and include the not merely to the sovereign as a person, peoples and accommodate their
discriminatory allocation of community but to a traditional bedrock of principles interests is grounded in the honour of
resources and services; the lack of of fundamental justice that lay beyond the Crown. The honour of the Crown is
access to clean water or safe, affordable persons and beyond politics. It is precisely always at stake in its dealings with
2

3. aboriginal peoples. [See R. v. Badger, collecting information was
[1996] 1 S.C.R. 771, at para. 41; R. v. a key recommendation
Marshall, [1999] 3 S.C.R. 456.] It is not made to Canada by the
a mere incantation, but rather a core UNCRC following their 2003
precept that finds its application in submission:
concrete practices.”
“The Committee
“The historical roots of the principle recommends that the State
of the honour of the Crown suggest party strengthen and
that it must be understood generously centralize
in order to reflect the underlying its mechanism to integrate
realities from which it stems. In all and analyze systematically
its dealings with aboriginal peoples, disaggregated data on
from the assertion of sovereignty all children under 18
to the resolution of claims and the for all areas covered by
implementation of treaties, the Crown the Convention, with
must act honourably.” 4 special emphasis on the
most vulnerable groups (i.e. aboriginal information
Canada’s failure to act honourably is children…). The Committee urges the on the issue. In
apparent in the two-tiered system that State party to use these indicators and its submission to the UNCRC the
exists whereby First Nations children on data effectively for the formulation and Government of Canada claimed to
reserve receive a lesser level of service evaluation of legislation, policies and fund “evidence-based programs and
for health, welfare and education. On programmes for the implementation, services to support the development
reserve these services come under resource allocation and monitoring of of children in an effort to address gaps
federal jurisdiction, but federal levels the Convention.” 7 in life chances between Aboriginal and
of funding are consistently inequitable non-Aboriginal children.” 9
when compared to provincial/territorial The Canadian Government is not
levels provided to children and families demonstrating a commitment to collect However, in 2010, the Public Health
off-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 of
documented including in the Auditor
when it announced in 2010 that it Health Canada (FNIHB) were involved
General’s 2011 report.
in a joint working group that found
would be terminating the mandatory
One of the ways the Canadian “striking and persistent disparities”10
long-form census. This alarmed many
Government supports the unjust with infant mortality rates twice as
Indigenous communities. A number of
allocation of funds is by claiming it has high on reserve when compared to the
First Nations Chief and Councils on the
inadequate information to accurately rest of Canada.11 They also identified
east coast formed a coalition to take the
compare off-reserve provincial funding “significant deficiencies in the coverage
issue to Federal Court where, eventually,
and quality of infant mortality data for
and on-reserve federal funding for their claim was overturned. First Nations.”12 The goal of the working
the same service. For example, when
group was to improve this situation, but
Indian 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 the
Standing Committee on Aboriginal and implement policies, programs,
group without consulting any of the five
Affairs and Northern Development and services for aboriginal peoples, the
national Aboriginal organizations that
in 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 of
Family Services by a level of 22%, these programs and services, resulting Though internal government documents
its response was that “it is virtually in unequal treatment vis-à-vis the non- demonstrate an awareness that First
impossible to make any accurate aboriginal population.” 8 Nations services are being chronically
comparison of the level of funding underfunded, Canada’s failure to collect
due 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 Indigenous
Improving services to vulnerable services because Canada is not making communities allows the government to
populations by more accurately a concerted effort to collect enough claim ignorance.
3

4. 4

5. paRt one Since 2001, three federal
Ministers of Indian Affairs have
Shannen’s Dream promised the students of
for Safe and Comfy Attawapiskat a new school. 14
Those students are still
Schools and Equitable waiting. By 2008, the grade
eight students had had
Education 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 have
The school in Attawapiskat First Nation been raising money and awareness
by student trish)
in northern Ontario is condemned for these communities: doing charity
because the land it’s built on is events, attending events, promoting
Shannen’s goal of becoming a lawyer
contaminated by 50,000 liters of diesel my charity, so that I may build a
meant she had to leave home to attend
fuel. For ten years the students have playground in these communities
high school in a community hundreds
used run-down portables that are which lack a right to play. I really
of miles away. Tragically, while away
freezing in winter, are fire traps, and at school, she died in a car accident. believe that I shouldn’t have to be
are infested with mice. According She was 15. Before her death she doing all this because they should
to 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. “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 Nation
In its 3rd and 4th Periodic Report to schools receive $2000-$3000 less school is closed an average of 22 days
the 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 of
relevant elementary, secondary funding increases to First Nations that
the pump house that goes red. That
and post-secondary education for has been in place since 1996, despite
tells us that there’s no water and
First Nations and Inuit students, consistently higher inflation rates and
that’s when we can’t go to school on
with overall education expenditures a burgeoning Indigenous population.
some days.” (douglas, Little buffalo
increasing 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 by
Notwithstanding this $300 million 3% annually just to keep pace with When the unacceptable condition of
increase over 4 years, federal funding inflation.18 The Auditor General’s these school buildings is combined
for schools on reserve is still not 2011 report finds INAC’s efforts to with a lack of basic supplies and
adequate to meet provincial standards address the education gap between culturally appropriate curriculum, it is
or to offer culturally based education. First Nations and non-Indigenous not surprising that many students lose
In fact, on average, First Nations Canadians to be unsatisfactory: hope and drop out as early as grade 5.
6

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 student
schools. For some First Nations Jordan Wabasse from
students this means their formal Webequie, who died
education ends at Grade 8. For others, in February 2011. An
it means moving to cities far from inquest that was scheduled to
portfolio,
their home to attend high school, and begin in 2007 following the death
living 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 may
northwestern Ontario who attend governments of Ontario and Canada
include recommendations about how
Dennis Franklin Cromarty High School to avoid student deaths at the school. work with First Nation leaders and
in Thunder Bay. This school is run by Unfortunately, these recommendations educators to ensure that adequate
the Northern Nishnawbe Education will come too late for the two students support services are in place for
Council for First Nations students living who have died since the inquest was students who must travel away from
in remote communities. first announced. 23 home for secondary school and to
work with us to develop education
Kyle Morriseau, age 17, went missing NAN Deputy Grand Chief Terry services in all First Nations that are on
while attending this school in 2007 and Waboose, who holds their education par with the rest of Canada.” 24
two weeks later his body was found
in the river. It was his first time living
away from his family and although his
father had wanted to board with him, it
had not been possible to find the funds
to do so.
Kyle was an artist like his father, and
grandfather, the famous First Nations
artist Norval Morriseau who was the
first Indigenous artist ever to have a
full art exhibition at the National Art
Gallery in Ottawa in 2006. According
to Christian Morriseau, Kyle`s father,
“He (Kyle) had a very good heart, a very
forgiving heart as well and he really
enjoyed the outdoors and he loved to
Photo credit: Cindy Blackstock
paint… I had my first art show with
[Kyle] in the spring of 2008 in Ottawa.
That night he sold nine paintings
and I only sold four- that’s one of the
proudest moments I ever felt with my
7

8. paRt two Canadian Government not because to the problem, and found it to be
flawed and inequitable. 29 The
First Nations child welfare service
Canada failing First providers are not funded at provincial complaint says that contrary to section
Nations children in levels, but because this could lead to
litigation:
5 of the Canadian Human Rights Act,
Canada is discriminating based on
child 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 since
In 2008, the Auditor General’s Report services on reserve are structured the services are being delivered by
found 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 held
Family Services Program funded for First Nations children, youth and accountable for inadequate and
child welfare services that were families. A First Nations Child and culturally inappropriate services. In
culturally appropriate or reasonably Family Services Joint Policy Review addition, Canada argues its funding
comparable with those normally released in 2000 suggested that the and policy regimes for children cannot
provided off reserves in similar federal government underfunds be compared to those provided by the
circumstances.” 25 In the 2011 follow- child welfare by 22% compared to provinces even when the children are
up audit, progress to address this issue what other children receive.28 A subject to the same laws. This amounts
was 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 funding
Documents from the Department of million per year was needed to meet levels and that are severely constrained
Indian and Northern Affairs Canada basic parity excluding the Territories in their ability to deliver programming
obtained under Access to Information and Ontario. The Auditor General has and allocate resources.
suggest this failure to provide a reviewed Canada’s enhanced funding
comparable 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 Canadian
8

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 allegation
Photo credit: Susanne Ure
of discrimination in child welfare.
As of 2007, there were about 8,300
on reserve children in care which,
9

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 be
according to the Auditor General’s Deputy Grand Chief of the Union of
causing children to enter state care is
2008 report, is approximately 8 times Ontario Indians Glen Hare said “now
needed. This is evident in a statement
the number of off reserve children in that Canada has finally endorsed the
made by INAC when it appeared before
care.35 In this same report, the Auditor United Nations Declaration on the Rights
the Standing Committee on the Status
General 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 kind
child and family service agencies on
another is considered genocide by the of information, we have no way of
reserve is inequitable. It is based on the knowing how many children who lose
standards of international law.” 37
assumption that 6% of children are in their mothers or grandmothers or other
care when in fact that number varies First Nations child welfare is another relatives, come into contact with the
widely from 0% to 28%.36 area where Canada is not compiling child welfare system as a result.” 43
10

11. 11

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 solutions
Photo 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 he
12

13. spent the first two of years of his life Landing First Nation in Nova
in hospital. When he was ready to go Scotia. She has lovingly cared
home all the services he would need for her 16-year old son Jeremy
for home care were available, but the his whole life. Jeremy has
federal 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 suffered
between the two levels of government a stroke and is no longer
continued despite pleas from Jordan’s able to provide Jeremy with
family, medical staff and the First Nation the care he needs. The
to stop blocking Jordan’s homecoming. provincial government
Just before his 5th birthday Jordan has refused to provide
tragically died, never having known home care because it
anywhere but the inside of a hospital. considers this to be the
responsibility of the
His family was grief-stricken but they federal government,
turned their painful experience into while the federal government provides
an opportunity to end this type of health care funding that is inadequate Some First
discrimination for other children and inconsistent with provincial Nations children on reserve are
through Jordan’s Principle. This child- not only denied access to health care,
standards.48
first principle says that the government but are unable to access safe drinking
of first contact will pay the health care water and are faced with housing
costs for a First Nations child on reserve, “Nationally, the Canadian conditions that can be detrimental to
and that disputes between levels of government does not provide their health. A 2006 Assembly of First
government will be a secondary matter Assisted Living funding for Nations report found that 1 in 3 First
and not act as a barrier to accessing children and youth with special Nations people consider their main
care. Member of Parliament Jean drinking water unsafe while 12% of
needs, although it recognizes
Crowder 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 states
private member’s bill in 2007 and it was resulted in some First Nations
that “Aboriginal housing remains a
unanimously 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 on
On the day Jordan’s father, Ernest be accessed off reserve.” reserve.” However, according to INAC
Anderson, witnessed the parliamentary (Pictou Landing band Council data included in the Auditor General’s
adoption 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 the
it was immediately put into practice need for on reserve housing:50
the act would be nothing more than
a symbolic gesture. 46 Sadly, Jordan’s If the Pictou Landing Band Council “[P]oor housing on reserves has been
Principle remains unimplemented by does not receive the funds to provide shown to have a detrimental effect
the majority of Canada’s provinces and Maurina and Jeremy with home care on the health, education, and overall
territories and the federal government services, Jeremy may be sent hundreds social conditions of First Nations
has 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 contamination
having it apply only to children whose
would not be facing this predicament has been identified as a serious health
conditions require the involvement
and safety problem in First Nations
of numerous service providers.47 First if they were non-Indigenous people
reserves, liable to cause respiratory
Nations 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 conditions
in 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 have
Maurina Beadle is a single mother to get services that are readily available not taken significant direct actions to
and a band member of the Pictou to other Canadians. remediate mould contamination.” 51
13

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 inherent
14

15. aboriginal rights in modern treaties” demonstrates a failure to uphold
but expressed concern “that these both the honour of the Crown
alternatives may in practice amount and the best interest of the child.
to extinguishment of aboriginal
rights.” Specifically the UNHRC said Significantly, the failure
Canada “should re-examine its policy to conclude land rights
and practices to ensure they do not negotiations is not limited
result in extinguishment of inherent to situations where the
aboriginal rights.”54 Comprehensive Land
Claims Policy applies. For
In 2006, in its response to the list of
example, there has been
issues taken up in connection with the
little progress in resolving
consideration of its fourth periodic
the Lubicon Lake Cree
report to the UN Committee on
First Nation’s outstanding
Economic, Social and Cultural Rights,
land rights, which the
Canada said there is no longer an
federal government sees as a In
extinguishment requirement in the
settlement of land rights. specific claim. United Nations Special 2005,
Rapporteur on the Rights of Indigenous the UN Human Rights
However, in its Concluding Peoples, James Anaya, in his Committee expressed concern “that
examination of the Lubicon case, urged land claim negotiations between
Observations, the UN CESCR expressed
the government to move forward with the Government of Canada and the
concern that Canada’s new approaches,
the land rights negotiations, citing Lubicon Lake Band are currently at an
namely the “modified rights model”
impasse. It is also concerned about
and the “non-assertion model,” “do not lack of services as an outcome of this
information that the land of the Band
differ much from the extinguishment unresolved settlement agreement:
continues to be compromised by
and surrender approach.” It also logging and large-scale oil and gas
expressed regret that it had yet to “[The Lubicon] community does not extraction, and regrets that the State
receive “detailed information on other receive adequate basic services or access party has not provided information
approaches based on recognition to water. Because of the non-resolved on this specific issue.” 58
and coexistence of rights, which are status of these lands, federal and
currently 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 the
Elimination of Racial Discrimination
said it “remains concerned about
the lack of perceptible difference in
results of these new approaches in
comparison to the previous approach.”
It recommended that Canada “ensure
that the new approaches taken to
settle aboriginal land claims do
not unduly restrict the progressive
development of aboriginal rights.”56
While it is encouraging that the
Comprehensive Land Claims Policy
is one of the issues identified in
the recently announced Assembly
of First Nations – Government of
Canada Joint Action Plan (www.afn.
ca), Canada’s decision not to act on the
recommendations of the UN committees
15

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. recommended by the RCAP have not change. But words must now be
been implemented by the federal turned into action. Indigenous
government and as a result, “the reality and non-Indigenous peoples
for First Nations communities today is in Canada must collaborate
ongoing poverty,” and an increasing to ensure the Government
gap in living conditions with non- of Canada works with
Indigenous Canadians. Indigenous peoples to
fully and meaningfully
In February 2009, at its first implement the UN
examination under the Human Rights Declaration in order to
Council’s Universal Periodic Review, the bring equity and justice.
United Nations raised concerns about
Canada’s performance on a number The following
of human rights issues, including the recommendations are
welfare of Indigenous peoples. respectfully made to
These concerns were detailed in the United Nations
the United Nation’s most recent Committee on the Rights of the Child develop
publication, State of the World’s in consideration of Canada’s periodic
Indigenous Peoples, which was released programmes and
review: policies to ensure that all families have
in January 2010. At 238 pages, it is
the most thorough publication the adequate resources and facilities); 45
1. Canada act immediately on the (that the State party further improve the
UN has published on the plight of the
recommendations put forward by the
world’s Indigenous peoples. State of the quality of education); 59 (The Committee
UNCRC following its review of Canada
World notes that “Canada recognizes urges the Government to pursue its
in 2003, in particular those relevant
that key socio-economic indicators for efforts to address the gap in life chances
to Indigenous children in paragraphs
Aboriginal people are unacceptably between Aboriginal and non-Aboriginal
13 (rights-based national plan of
lower than for non-Aboriginal children ... The Committee equally notes
action); 20 (integrate and analyse
Canadians,” 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 of
improved 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 efforts
Aboriginal people.”59
to fully integrate the right to non-
2. The Committee engage a special
Canada is one of the world’s richest discrimination in all relevant legislation
study on Canada’s implementation of
countries, and consistently ranks concerning children); 25 (that the
principle of “best interests of the child” the UNCRC with respect to the rights of
among the best places to live. Indigenous children pursuant to section
Unfortunately, this is not the reality for contained in article 3 be appropriately
analysed and objectively implemented 45 (c).
far too many Indigenous people who
live in Canada, in particular Indigenous with regard to individual and groups
of children in various situations, e.g. 3. Canada work in collaboration with
children. There are few countries with
Aboriginal children); 35 (that the State Indigenous peoples in Canada on the
the same capacity to fully implement
party undertake measures to ensure full and effective implementation of
the United Nations Convention on the
that all children enjoy equally the same the United Nations Declaration on
Rights of the Child. Implementation
of the Convention would address the quality of health services, with special the Rights of Indigenous Peoples, in
increasing gap in living standards attention to indigenous children and particular those articles relevant to
identified 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 Indigenous
When the Government of Canada spread of homelessness, particularly peoples to allocate and structure
endorsed the United Nations among children); 43 (that the State sufficient financial, material and human
Declaration on the Rights of party continue to address the factors resources to ensure the safety, best
Indigenous Peoples in 2010, it made responsible for the increasing number interests and cultural and linguistic
a great leap forward towards positive of children living in poverty and that it rights of Indigenous children.
17

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 practices
material and human resources to for a new Comprehensive Land Claims are fully consistent with the UN
ensure the full enjoyment of education, Policy: With regard to new treaties Convention on the Rights of the
cultural and linguistic rights for and agreements, the Commission Child and implements immediate
Indigenous children. recommends that the federal and effective measures to ensure
government establish a process for Indigenous children, young people and
6. Canada, in full partnership with making new treaties to replace the families are aware of their rights under
Indigenous peoples, act immediately to existing comprehensive claims policy, the Convention.
ensure that government jurisdictional based on the following principles:
disputes do not impede or delay
Indigenous children from receiving (a) The blanket extinguishment of
government services available to other Aboriginal land rights is not an option.
children, including the full and proper (b) Recognition of rights of
adoption and implementation of governance is an integral component
Jordan’s Principle. of new treaty relationships.
(c) The treaty-making process is
endnoteS
7. 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 Métis
peoples, a national, independent Violence Against Aboriginal Women.” March 2011,
nations. p. 11.
mechanism empowered to implement
reforms, and available to receive, (d) Treaty nations that are parties to
2 David M. Arnot. “The Honour of First Nations – The
investigate and respond to reports of peace and friendship treaties that
Honour of the Crown: The Unique Relationship of
individual and systemic child rights did not purport to address land and First Nations with the Crown.” Conference paper given
violation. 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 conform
is 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 Development
standard. recommendations 2.4.1, specifically Canada (AANDC), Indian and Northern Affairs Canada
sections (a) to (d): (INAC) is used throughout to avoid confusion because
9. Canada base future governance all the documents cited were written before the
(a) Aboriginal title is a real interest
discussions on Recommendation 2.3.2 name change.
in land that contemplates a range
of the Royal Commission on Aboriginal
Peoples: All governments in Canada of rights with respect to land and 6 INAC before The Standing Committee on Aboriginal
resources. Affairs and Northern Development, November
recognize that Aboriginal peoples are
24, 2010, p. 128. (obtained through access to
nations 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 the
2.4.2 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, including
revising future governance discussions 8 Native Council of Nova Scotia, New Brunswick
Aboriginal title.
with First Nations: Federal, provincial Aboriginal Peoples Council, Native Council of Prince
and 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 Chief
nations 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 and
economic self-reliance and cultural and the cultural and spiritual life of 9 Canada’s Third and Fourth Periodic Report to the
political autonomy. Aboriginal peoples. UNCRC, p. 20, para. 97.
18

19. 10 Janet Smylie, MD, MPH, CCFP, Deshayne Fell, MSc, 30 FNCFCSC, Canadian Human Rights
Arne Ohlsson, MD, MSc, FRCPC, FAAP, and the Joint Complaint: Equity for First Nations Children
Working Group on First Nations, Indian, Inuit, and Briefing Note II: History and Status of the
Métis Infant Mortality of the Canadian Perinatal Complaint.
Surveillance System. ‘A Review of Aboriginal Infant
Mortality Rates in Canada: Striking and Persistent 31 FNCFCSC et al. v. Attorney General of
Aboriginal/Non-Aboriginal Inequities’. Canadian Canada, 2011 CHRT 4, para. 10.
Public Health Association. (2010). p. 147.
32 Interview with Cindy Blackstock on
11 Ibid. p. 146. Bamoseda Report. March 18, 2011.
12 Ibid. p. 147. 33 Aboriginal Peoples Television
Network v. Canadian Human Rights
13 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. 50
16 Canada’s Third and Fourth Periodic Report to the 2011 June
UNCRC, 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 care
Reserves: A First Nations Education Authority Act. ‘genocide’: UN Declaration.” 2010 Press Release. 51 2011 June Status Report of the Auditor General of
Caledon 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. UN
Requirement for First Nations Schools in Canada. 2009, Roam Free.” Indian Country Today. August 11, 2010. Committee on the Elimination of Racial
p. 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 of
Christian 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 Cultural
23 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 Racial
24 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 obtained
25 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-claim
access 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 of
before 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 and
29 2008 May Report of the Auditor General of Canada. 49 Assembly of First Nations. Royal Commission on Social Affairs. State of the World’s Indigenous
para. 4.64. Aboriginal Peoples at 10 Years: A Report Card. 2006. p. 3. Peoples. New York, New York. 2009. p. 24.
19

20. Copyright © 2011
KAIROS: Canadian Ecumenical Justice Initiatives
First Nations Child and Family Caring Society of Canada
Permission 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 who
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Design by Cathy Vandergeest
Written by Katy Quinn
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