First Nations' $2.1B proposed class action accuses governments of 'devastating mismanagement' of child welfare
3 First Nations say governments owe billions in damages over handling of CFS system
A $2.1-billion proposed class action arrived at the Court of King's Bench on Monday, where Manitoba's chief justice heard arguments that the provincial and federal governments breached their duties to First Nations through what the suit calls "devastating mismanagement of the child welfare system."
The chiefs of three Manitoba First Nations — Black River First Nation, Pimicikamak Cree Nation and Misipawistik Cree Nation, along with the Assembly of Manitoba Chiefs — launched the lawsuit in October 2022.
The statement of claim says they're seeking $2.1 billion in damages for First Nations harmed by the apprehension of kids by child and family services (CFS) agencies between 1992 and the present day.
It also seeks an order ending the "unnecessary apprehension" of First Nations children on the basis of "poverty, racial and cultural bias, and systemic racism."
"It arises out of a set of facts that are deeply troubling," said Michael Rosenberg, the lawyer for the First Nations, in his opening submissions. "This is an ongoing human catastrophe. It continues to the present day and without this court's action the plaintiffs are concerned it won't stop."
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Chief Justice Glenn Joyal will hear arguments over the next five days on whether the suit should be certified as a class action, and whether it should move to summary judgment — meaning he can render a decision on the merits of the case without it going to trial.
Thousands of pages of documents have been filed by both sides, including reports, affidavits and case law.
Misipawistik Cree Nation Chief Heidi Cook is the lead plaintiff in the case. She worked within the CFS system for years and saw the impact it had on families in her community, about 400 kilometres northwest of Winnipeg.
"It is just absolutely heartbreaking," she said.
"When a child is apprehended into a system, the child experiences a lot of trauma — the separation from their family, the uncertainty of what's going to happen … The family also experiences that. The nation loses its connection to its children."
The First Nations say they have collectively lost language, culture, identity and spirituality as a result of the historical policies of the child welfare system, according to the court documents.
Rosenberg, from Toronto-based law firm McCarthy Tétrault, told court both the federal and provincial governments were repeatedly warned the system was in crisis. They repeatedly accepted recommendations from reports but did not change the system, he said. He is asking that court finds both governments breached their duties to First Nations.
A report by research professor Vandna Sinha and CFS consultant Tara Petti, commissioned by the plaintiffs, found the government emphasized funding for protective measures regarding kids in care, rather than preventing their apprehension, according to an affidavit Sinha filed in 2024.
The report also found that:
- Manitoba has the highest rate of children in out of home care in Canada.
- From 2001 to 2021, the number of children in care increased from 5,440 to 9,850.
- The percentage of kids in care who are Indigenous rose to 91 per cent in 2021 from 80 per cent in 2001.
Working to address 'shortcomings': province
Both governments are opposing the certification motion and summary judgment. The province is expected to make its arguments Tuesday, followed by the federal government on Wednesday.
The province declined to comment as the matter is before the courts.
The federal government denied all allegations that it has employed discriminatory practices to destroy First Nations families, cultures, and First Nations through its funding of on-reserve child welfare services, in a prepared statement.
The statement said it is the provincial government that has jurisdiction to the control and set the standard for child welfare services on and off reserve in Manitoba.
In a 111-page motion brief filed earlier this month, the provincial government acknowledges that the CFS system has "shortcomings" and said it "continues to make efforts to address them."
Changes have been made to the child welfare system since 1992 in a "sincere attempt to improve outcomes," the government stated in the brief.
The First Nations' arguments do not account for the complex history of CFS in Manitoba, according to the brief.
It notes the federal government stopped providing funding for off-reserve First Nations people in 1992, leaving the province without the funding to address their child welfare needs.
Black River Chief Sheldon Kent, another lead plaintiff, told CBC during the lunch break he is disappointed the governments are claiming they are not liable for poor outcomes for Manitoba children in care.
"To hear them say that it's not their responsibility, they're not liable, yet they're the governments that created the agencies and the systems, that's disappointing to hear," Kent said.
The negative outcomes for First Nations children are not solely because of the provincial government, the brief maintains. It says the CFS agencies, which make the decisions to apprehend and are separate entities, also bear responsibility.
In a separate 220-page brief, Canada's attorney general wrote the government is "committed to reconciliation" and acknowledged historical wrongs were committed against First Nations in the administration of the child welfare system.
However, it argues that has already been addressed in previous settlements.
In 2023, the Federal Court approved a $23-billion settlement to compensate an estimated 300,000 First Nations children and their families for Canada's chronic underfunding of on-reserve child welfare services.
The brief said Canada settled two other class actions with First Nations people for harms caused by the residential schools system and the Sixties Scoop.
"In addition to numerous federal Indigenous programs that existed over the last number of decades, Canada has also provided First Nations with extensive funding and programming to promote and revitalize Indigenous languages, culture and traditions," said the motion brief.
The federal government also argues that Manitoba had jurisdiction and legislative control over child welfare services, and in 2003, the province delegated authority over Indigenous aspects of child welfare to four CFS authorities through a process known as devolution.
Those authorities and their employees are responsible for administering and providing the delivery of care, the brief says.
It also says the federal government "did not provide direct funding for the delivery of off-reserve child welfare services."
The Public Interest Law Centre — an arm of Manitoba Legal Aid that represents groups and individuals on issues affecting the environment, human rights, Indigenous people, consumers and low-income persons — is also representing the First Nations.
"This case has the potential to set important legal precedents relating to the obligation of government to First Nations when administering a vitally important program such as child and family services," said Peter Kingsley, the executive director of Legal Aid Manitoba in a prepared statement.
Cook said Misipawistik Cree Nation would use any potential settlement money to fund healing programs.
"Land-based healing, support for families, prevention services, language revitalization — those types of things are really important," and are programs "that address the harms that have been created through this system," she said.
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