Manitoba staying true to ‘colonial context’ by denying Indigenous children legal recourse

The Assembly of Manitoba Chiefs has begun legal action against the Manitoba government over legislation passed that would prevent Indigenous children-in-care, past and present, from pursuing legal recourse to access $338 million in federal funding that the province has laid claim to for more than a decade.

On Nov. 8, the Manitoba Conservative government passed Bill 2, an omnibus budget and tax implementation bill. The legislation shields the province from legal action regarding payments it received from Canada between January 2005 and March 2019 under the Children’s Special Allowance Act. Funding from CSAA is exclusively for the purpose of the care, maintenance, education, training or advancement of children in care.

Instead, Manitoba put much of that money into its general revenue.

Bill 2 dismisses two existing court cases without costs and without limitation. One class action lawsuit was filed by six family and children’s agencies to force Manitoba to remit those funds, and another class action lawsuit was filed for compensation for the children who did not benefit from their CSA.

The AMC is asking the court to rule that the province cannot deny children their right to access the courts, as well as to determine that Manitoba “owes fiduciary obligations to First Nations children involved in the child and family services system.”

“By challenging the province of Manitoba of their tactics, we are protecting the most vulnerable people in society, our First Nations children in care,” said Grand Chief Arlen Dumas.

“It is disgraceful to have a government go to such lengths to protect themselves from any liability or accountability. They are trying to hide behind legislation that infringes on our Constitutional rights by denying access to the justice system.”

There are about 11,000 children presently in care, 9,000 of whom are First Nations children, says First Nations Family Advocate Cora Morgan.

The loss of the CSA, which is equivalent to the child tax benefit other children receive, is substantial, she says.

“There’s all these opportunities that (children-in-care) have to go without,” said Morgan. “It’s an extraordinary double standard that the average Canadian child receives the benefits of the child tax credit dollars, yet children-in-care are deprived of those things. They’ve already been taken from their family and everything they know, lots of issues with the loss of identity, and on top of that they don’t have the added investment in their gifts and talents,” said Morgan.

She points out that before the province took the CSA, some agencies were giving the children-in-care half the money and putting the other half in trust for when the child aged out of care. The money was also being used to allow a child to remain in care until 21 years of age instead of the usual 18.

However, now Manitoba has clawed back the provincial funding it gives and is using the CSA to bring funding to the provincial level.

Children-in-care are no longer given the option to extend their stay three more years.

Morgan says a recent study of homelessness in the province indicated that two-thirds of those without homes are products of the child welfare system.

Having access to the CSA funding the province held onto would be huge, she says.

“It could mean everything,” she said. “When you’re aging out into homelessness, $70,000, or whatever the amount is, could have changed your life completely.”

Although AMC is only now taking legal action even though the issue with the CSA has been ongoing for almost 15 years, Morgan says First Nation leaders have not been silent. In that time, she says, the AMC has passed resolutions; the provincial and federal governments have been lobbied to make changes in the child welfare system to no avail; AMC produced the report “Bringing Our Children Home”; and the First Nation Family Advocate Office was created by the AMC five-and-a-half-years ago. Morgan has held the role of advocate since the beginning.

AMC legal action, she says, shows children-in-care that their concerns are important.

“To me, it’s a signal to all the youth-in-care that we’re paying attention and we’re doing what we can. To me it’s a sad discourse that we have to, in this day and age of apparent reconciliation, that we have to go to these extremes in order to ensure that children are treated fairly,” she said.

Morgan also stresses that what the province is doing goes beyond legalizing the capture of CSA dollars.

“They denied all these children the ability to build any kind of legal recourse to get their money back,” she said. “It reminds me of the days when our people were unable to have legal representation in the 1950s, 70 years ago, unable to have access to justice.”

Adam Bond, legal counsel for the Native Women’s Association of Canada (NWAC), agrees with that assessment.

“There is a long history in this country of governments trying to prevent judicial recourse for Indigenous people. This is reflected here. I don't know if this was the objective of the legislation or the provincial government when they were drafting this, but it certainly is in line with colonial context,” said Bond.

Last week NWAC issued a statement in opposition to Bill 2.

Bond questions Manitoba’s jurisdiction to redirect funding from the federal government that fulfills a mandate specified by Ottawa.

He believes the federal government would have the same concern as it would set a “dangerous precedent” if provinces chose to distribute mandated federal funds according to provincial desires.

Bond holds, though, that the federal government’s concern should go further.

“The Crown has an obligation to Indigenous peoples (and) we're dealing here with Indigenous children. What role does the federal government have in making sure the scheme is properly implemented? I think there is room to say that there is an obligation there to make sure they’re meeting their duties to Indigenous children,” said Bond.

The AMC’s Notice of Application against the Attorney General of Manitoba is scheduled to be heard Dec. 16 in Queen’s Bench in Winnipeg.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.