Thousands of Indigenous children who live off reserve have been “forgotten” by the federal government when it comes to acknowledging harms caused by the child-welfare system, the lead representative plaintiff of a class-action lawsuit says.
Cheyenne Stonechild, a Cree woman who was taken from her mother at the age of eight and spent her childhood in at least 15 different group homes in the Greater Vancouver Area, said there is an opportunity to remember “these children are there and to meaningfully acknowledge them.”
Ms. Stonechild’s mother was also adopted into a non-Indigenous household and her grandmother was a residential-school survivor.
Ms. Stonechild said her own entry into the child-welfare system happened quickly and that the experience was traumatic.
“What I remember distinctly was that no one really told me what was happening,” she said.
Ms. Stonechild, 28, is not alone. She is now the main plaintiff for a lawsuit filed against the federal government on behalf of off-reserve Indigenous children and families who were subjected to what is referred to as the “Millennium Scoop.”
Ms. Stonechild alleges that as a result of her being taken into the child-welfare system, she suffered mentally and emotionally as a result of a loss of her culture and identity.
The class-action received certification in Federal Court in June, 2022. It alleges that Canada failed to take reasonable steps to protect and preserve the identity, including the Indigenous language, heritage, spirituality and traditions, of apprehended Indigenous children and youth.
In an appeal filed on June 27, 2022, the federal government said the court erred in certifying the class action, including in finding “the case of the class members raise common questions of law or fact.” It also said that the court erred in “certifying common issues not supported by a basis in fact.”
As a result of a separate legal process, the Federal Court approved a $23.3-billion settlement for First Nations children and families who were harmed by discriminatory underfunding of the First Nations child and family services. It applies to First Nations survivors of the on-reserve child-welfare system and the discriminatory delivery of health and social services.
The settlement agreement is the largest of its kind in Canadian history and flows from a lengthy legal battle that began in 2007, when the Assembly of First Nations and another organization, the First Nations Child and Family Caring Society, took a complaint about discriminatory child-welfare funding to the Canadian Human Rights Tribunal.
Ms. Stonechild said she believes the settlement for on-reserve children amounts to a reason to celebrate. But she said she experienced “heartache” that the process did not apply to her or individuals like her.
“That part hurt,” she said. “I’m no less than anyone else. I’m certainly no less Indigenous. There are thousands of other young people much like myself that have been forgotten.”
Ms. Stonechild said the federal government is still ignoring the issue of off-reserve Indigenous children, adding it is not going to go away.
Recently, she was in Ottawa to hold a series of meetings with MPs and senators across party lines in an attempt to raise awareness about the class-action lawsuit.
Max Faille, a partner with Cochrane Saxberg LLP, was with Ms. Stonechild in the meetings, along with Angela Bespflug of Murphy Battista LLP. In total, there are four law firms working on the suit (the other two are Sotos LLP and Miller Titerle).
Mr. Faille said Ottawa must stop fighting Indigenous children in court.
“Enough is enough,” he said, adding that Canada must accept responsibility for all Indigenous kids.
One of Mr. Faille’s colleagues at Cochrane Saxberg LLP is Murray Sinclair, former senator and Truth and Reconciliation Commission chairman. In November, 2021, it was announced that Mr. Sinclair would help facilitate compensation talks that led to the settlement agreement for on-reserve children.
In an interview on the class-action suit, Mr. Sinclair said the federal government needs to take a fair-handed approach that is consistent with the process for compensation for on-reserve children.
“An equally supportive approach or an equally positive approach should be taken,” he said.
A spokesperson for Crown-Indigenous Relations, Jacinthe Goulet, said Canada appealed the certification decision with the Federal Court of Appeal in this matter “because of the complex jurisdictional issues and the need to ensure that the provinces are involved in the process.”
“Canada did not take issue with the plaintiffs’ allegations but maintains that the issues related to child welfare off reserve fall under provincial jurisdiction and that provinces must participate in the litigation in order to ensure that they address their part in the harms suffered by Indigenous children and families,” she said.
Mr. Faille said provinces are involved on the issue of child welfare because the issue was offloaded on to them in the late 1980s. But he said Canada has a responsibility and ability to lead a process with the provinces, survivors and Indigenous communities to come to a resolution.
“Let’s have a dialogue so we can finally wrestle this problem to the ground.”