The Sky is not Green, or 'why are we still taking First Nations kids to court?'
Updated: Oct 19, 2021
If you read enough Aboriginal law cases,
patterns start to emerge. Long delays. Obscure questions about jurisdiction and the world as it was millennia ago. Two sides speaking the same language but whose words mean drastically different things. Knotted arguments working overtime to establish (or not) the existence of something so patently obvious that one takes to wondering if there is actually an argument that the sky is green and that water isn’t wet.
But there are also determined advocates who spend years of their lives persisting.
Fourteen years ago, the First Nations Child and Family Caring Society filed a human rights complaint against the Government of Canada for discriminating against First Nations children living on reserve by underfunding children’s services and Jordan’s Principle. It was the next reasonable step to take after years of effort and advocacy for increased funding and program reform. 
It took six years of fighting to have the complaint heard and three more to have the decision released.  And when it was, the Canadian Human Rights Tribunal (CHRT) found what all the parties had long known to be the truth – that Canada was systemically discriminating against First Nations children. 
What followed was years more of trying to implement CHRT orders that were supposed to end that discrimination and give First Nations children what they had been promised in the very beginning – a child-first implementation of Jordan’s Principle.
Two weeks ago, the Federal Court released its latest decision in the matter and dismissed the Government of Canada’s application for judicial review of the Tribunal’s order to compensate the victims of the government’s discrimination and to include first nations children living off reserve in Jordan’s Principle. 
Canada argued that the Tribunal exceeded its jurisdiction when it expanded eligibility for Jordan’s Principle to include:
Non-status children who are recognized by a First Nation as being a member of their community; and
Non-status children of parents who are eligible for Indian Act status.
The Crown argued that these children were not in the scope of the original complaint, that no evidence was presented to establish their eligibility and that determining who met those criteria asked the government to make decisions about First Nation membership without the input of the Nation.  The Tribunal recognized the fundamental flaws with the Indian Act and the statutory notion of “status” and found that “a definition of ‘First Nations child’ predicated on the Indian Act would perpetuate discrimination.”  The Federal Court agreed.
This is good progress. Acknowledging the discrimination deeply rooted in colonial law is a prerequisite for putting an end to that discrimination. However, as the Court noted, “the parties are talking to each other about different issues.”  The Caring Society grounds their position in the impacts of colonialism and Indigenous peoples’ inherent right to self-determination.  The Crown “adopts a more limited and legalistic approach…[which is] fundamentally at odds with how Indigenous parties may approach matters.” 
It is also good that the court is recognizing this and calling it out. However, read enough Aboriginal law cases, and patterns emerge. Despite narrowing in on the problem at the root of all problems – colonialism perpetuated by a colonial state – courts are also satisfied with miniscule progress.
Here, the court upheld the expanded eligibility for Jordan’s Principle, but was clear that eligibility was only an open door, not a guarantee that services would be provided.  They also lauded the government for showing good will throughout this process and its associated negotiations.  Remember, please, that the Crown was found to have knowingly refused to disclose 100,000 documents, to have engaged in retaliation against Dr. Blackstock, to have challenged expansion of funding even when faced with a suicide pact in a northern community, and to have delayed the remedy ordered by the Tribunal by challenging compensation for survivors and expanded eligibility for Jordan’s Principle. 
Jordan’s Principle funding can be requested when a child has an urgent, possibly life-threatening, need. Faced with children in crisis, the Government of Canada sought to limit to whom they owed an obligation.
The sky is not green. Children in urgent need need urgent support, regardless of where they live or whether or not the colonial state recognizes their Indigenous identity. Suggesting otherwise makes talk of reconciliation rather empty.
If you have a moment this weekend, you can reach out to the Prime Ministers’ Office. Let him know that it is time to stop arguing about which child gets which needs met. It is time to stop taking First Nations kids to court.
Until next time,
 Attorney General of Canada v First Nations Child and Family Caring Society of Canada et al, 2021 FC 969 at para 7.
 See ibid at paras 16-72 for a review of the procedural history of this case. The Caring Society’s website offers a visual timeline.
 First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2.
 Supra note 1.
 Ibid at paras 100-02.
 Ibid at para 241.
 Ibid at para 252.
 Ibid at para 277.
 Ibid at para 278.
 Ibid at para 69.
 Ibid at para 301.
 First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian Affairs and Northern Development Canada), 2013 CHRT 16.
 First Nations Child & Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2015 CHRT 14.
 First Nations Child & Family Caring Society of Canada et al v Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2017 CHRT 14 at paras 88 – 92.
 Supra note 1 at para 69.