witnessing 2014

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Abstract: This article is an epistemological journey as 'witness' taken by following reported events and narratives speaking to the lived experiences of Native Canadians by the First Nations Family and Caring Society (Caring Society) as it navigates the jurisdictional and legal processes of challenging Canada's federal government for its on and off-reserve practices for first nations child welfare funding. The Caring Society maintains a website inviting others to join and become witnesses, to read and consider Canadian First Nations' history, their stories, and their experiences of racialized colonial oppression. This article considers witnessing as a strategy, as activism, and as anti-racist educational intervention. My witnessing of the first nations child & family caring society of Canada human rights commission tribunal complaint of inequitable native child welfare funding by Canada through the www.fncaringsociety.com website. Robert M. Head

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This article is an epistemological journey as 'witness' taken by following reported

events and narratives speaking to the lived experiences of Native Canadians by the First

Nations Family and Caring Society (Caring Society) as it navigates the jurisdictional and

legal processes of challenging Canada's federal government for its on and off-reserve

practices for first nations child welfare funding. The Caring Society maintains a website

inviting others to join and become witnesses, to read and consider Canadian First

Nations' history, their stories, and their experiences of racialized colonial oppression.

This article considers witnessing as a strategy, as activism, and as anti-racist educational


My witnessing of the first nations child & family caring society of

Canada human rights commission tribunal complaint of

inequitable native child welfare funding by Canada through the

www.fncaringsociety.com website.

Robert M. Head


The First Nations Caring Society & an invitation to witness

The First Nations Child & Family Caring Society of Canada (the Caring

Society/FNCS) is a First Nations child and family advocacy group. My own

understanding of racism and anti-racism is premised on scholarly discussions I have

engaged in whereby antiracism is considered from theoretical, political, and

epistemologically critical positions. This text is intended as an antiracist educational

intervention in and of itself by giving voice to the inequalities that the Caring Society

alleges are being experienced by Native children in Canada with respect to federal child

welfare funding, as I have witnessed them through my research and consideration of the

Caring Society website, and listed media links. I will review the case, history, and

potentially relevant Caring Society allegations, looking at and giving witness to both

macro and micro details I consider appropriate to this antiracist intervention, for your

consideration of it as further witnesses. I will consider the call to witnessing, witnessing

as a strategy, and what it means in this case and instance. Where the Halkomeylem term

u’tsam refers to a formalised type of tribal witness, who performs very prescribed

ceremonial roles within their communities and in the contexts of Smokehouse

Ceremonies, for example, my witnessing takes place through my researchers lens of

visiting the fncaringsociety website [visit http://www.fncaringsociety.com], where, as

visitor, I am invited to witness, and as witness to make a commitment to follow the case

by either coming to watch the tribunal in person or by following it in my local media or

on the website daily updates feature. The website invites visitors to registering their

support, as members of a witness community. The fncaringsociety.com site informs


visitors that as witnesses they are sending a message that they care about all children

being treated fairly and equitably by governments.

Antiracist interventions and activism

Where did I get the idea that to witness is antiracist intervention? Having been

brought to the fncaringsociety.com website as a result of somewhat casual academic

discourse, I feel not unlike Bloom, who considers herself an 'accidental activist' (Bloom,

2009). However, I feel no need to publicly stake my claim to my activist status beyond

sharing that I have been an activist in other matters of self-interest. The witnessing

component of activism is not unlike being carved as a totem, giving shape to our

positionalities and ideological forms as witnesses - the witness community being like a

wood altered, giving voice and cue to what we have learned, to the impressions created in

and upon us. The idea of witnessing is not strange for me. History is full of people who

have excelled at witnessing, from Dr. M.L. King to Nelson Mandela to Chief Dan George.

Movements have leaders, whose visions are often propelled by their lived and witnessed

experiences. When I first visited the Caring society website, while researching news

reports of inequitable native child welfare funding, I thought, I have here found reports of

racist and racialized practices against a group of persons by an ideologically lead-footed

Canadian federal government.

From WASP to Witness

I became interested. I committed myself to beginning some further basic research.

That the Caring Society website invited me to become a witness was intellectually

intriguing. And so, after some thoughtful introspection, I did become a witness, literally

signing my name to a list of many thousands of other members of that community of


witnesses. What did this signify for me? From what position was I stepping forward into

the role of witness? As a fifty year old white anglo saxon protestant [WASP] Canadian

male, whom many might mistakenly consider to epitomize White Privilege, did I have

the right to declare myself a witness, to take umbrage with the claimed inequitable

federal position towards native child welfare funding? Well, I thought, yes, I can do this.

I am also many other things. It is with my own lived-experiences of parallel

discrimination that I focus my researcher's lens. Does this make me an anarchist witness?

Elun Gabriel speaks to the origins of witnessing as being anarchist philosophical

perspectives more situated in what he refers to as "the Bakunian visions of revolutionary

insurrectionalism" (Gabriel, 2007) of the 1860's and 1870's Europe and Americas. More

specifically from an oral perspective of faith, that, "'in the Christian tradition, witnessing

means testifying to one's faith, both living out its ideals and publicly proclaiming its

truth" (Gabriel, 2007). Mulling this over, as a spiritual person believing in a Supreme

Being and the tenets that we ought to treat each other with goodwill and kindness, I feel,

on reading from the fncaringsociety website, that the Canadian government is treating

First Nations children egregiously, in this case. As witness, through a kind of

proselytizing by association, I hope to beacon others to stand on higher moral ground

than the Canadian Government appears to me to be entrenched upon. The Caring

Society's social platform invites all who will witness to ideologically and publicly stand

upon a witnessing stage. Not unlike oral traditions, testifying and witnessing have their

places as traditions of communication - as does martyrdom for those who will have it

(Gabriel, 2007). How deliciously terribly rich it is that here we are in the twenty-first

century, in a Canada where a regime in office is doing its Machiavellian level-best in its


exercise of power and dominion to deny First Nations and Aboriginal children equitable

child welfare funding through a process of denial of their familial rights and related

extended services [and their extraction from communities which are native and natural to

them], and it is in the witness community of the Caring Society that a venue for free

speech is sparked - not by a perhaps Orwellian colonialist government that purports to

actually care a fig for dependent natives, but instead by a Native self-determining agency

looking for social justice.

Unmasking inequality

When hip hop witness Awad Ibrahim proposed the idea of becoming black as

addressing the "interrelations between race, culture, and identity, and their impact on

what, who and how we as social beings within a social space, identify with" (Ibrahim,

2003), I was made to wonder about a 'what if' scenario whereby we as witnesses, marked

and made visible through our collective lenses, government and its actions and positions

and oppositions to equitability of and for Canadians, could properly task Canada to step

up and ensure equitabe social funding be administered for all people within Canada, if we

could use the language of witnessing and media speak to inspire the new power-base to

force the Canadian government to retreat from its colonialist past? Ibrahim (2003) asks,

"knowing what we do about the politics of identity and identity formation in the third

space, how then do we engage these identities pedagogically?" Perhaps this is how. We

might ask ourselves -whether reflecting upon hip hop, First Nations, linguistic, gendered,

or myriad other cultures, Canada claims itself to be a multi-cultural mosaic - how do we

support our distinctions, collectively, equitably?

Truth speaks through the ethics of the appointment


Notions of epistemological pedagogy have nagged at me, and this is what brought

me to Ibrahim, literally and personally, with whom I spoke at length about the act of

becoming a witness, whereupon he directed me that through "the ethics of the

appointment: because you witness something you are almost appointed by and through

that witnessing to speak" (Ibrahim: personal comment, 2013). I agree with his assertion

and I take some responsibility; in the order that learning to witness profoundly survivors

testimonials, it is by remaining acutely sensitized to our unexacting propensities for

subjectivity, empathy, and revisionism that we must struggle to recall and learn from hard

historical truths (Regan 2010). As witness, many residential school testimonials can be

located through and listened to via the Caring Society website. These hard self-storied

truths from Native survivors of childhood abuse shared can further library the

information banks of the public as further witnesses to the lived-experiences of native

children at the hands of Canada's colonialist government. This unwavering testimony

steers me as witness.

Yet, it is not all about the witness, and so with an ear and an eye focusing on

unequal power relations and our positionalities of inequality as perhaps non-othered

witnesses who have come to our activism from that other side of the historicalised

cultural fence, we should acknowledge that stepping forward to give testimony is at once

a risk and a release for survivors, and is not an easy thing to do - certainly less so than

witnessing (Hulan, 2012). Any intellectual and spiritual desire and obligation to empower

the storytellers ought to not drain them of their truths for the benefit of curious academics

or national guilt. As witnesses, we need to learn how to channel what we learn - a process

that is not painless.


Colonialism and The Indian Act (RSC c.I-5 1985)

The sheer volume of stories shared and news reported through the Caring Society

website can be overwhelming, with its myriad links to court findings, print news reports

and televised interviews related to the case. It is hardly new news, rather a glimpse of a

project and history of colonialization, that has used the vulnerability of children to shape

and direct the programmic and genocidal decimation of a population (Hulan, 2012). It

does not require a witness take an incalculable leap of logic to understand that Native

people within Canada have been grievously and egregiously wronged in so many ways

by a dominant group; that this First Nations population has been (re)defined; had an

identity imposed upon it; and then been minutely controlled. Canada, as settler

government, through the Indian Act (RSC c.I-5 1985), has imposed a stereotyped identity

upon Native Canadians. Why have we so casually accepted Settler Canada's

institutionalised efforts to mirror James Clifford's assertion that, "Identity, in a sense, is

about ways of looking at people, about how history is interpreted and negotiated, and

about who has the authority to determine a group's identity or authenticity" (Lawrence,

2003). Even more fundamental than identity is legacy, for without the latter the former

withers and is exterminated. The Caring Society invitation to witness is not established

for non-Natives alone - it is an invitation to Natives and Non-Natives. Natives are

reminded of the importance of the act of witnessing, like holocaust survivors, that "the

loss of the capacity to be witness to oneself and thus to witness from inside is perhaps the

true meaning of annihilation, for when one's history is abolished, one's identity ceases to

exist as well" (Daub, 1992).


The Indian Act, which is referenced in determining Native Child welfare funding

by the Government of Canada, acts as a lens focused by the settler government. Loomba

(1998) considers that to be recognized becomes an act of compliance and acquiescence of

a Foucauldian order, of being played like puppets by those holding the balance in an

imbalance of power. As this way of life is seen, so too is it witnessed. That The Act is

more than a body of laws - that it is a regulatory regime, cannot be denied (Lawrence,

2003), and is reflective of a form of racialization.

And so we understand, given that The Indian Act has controlled every aspect of

Indian life, that many of the non-Native Canadian understandings of Native identity have

become taken-for-granted racializations over time. The process of witnessing facilitates

the deconstructing and reshaping of how we understand Indigenous identity, and thus we

can proceed towards a politic of de-colonizer status of the settler-descendant, if not of the

settler government (the Federal Government of Canada), perhaps towards what Lawrence

(2003) hopes will eventually reflect a more equitable treatment of those affected by the

settler government's policies and practices. To bear witness to the events being reported

by the Caring Society is to consider the evidence set forth in the complaint currently

before the Canadian Human Rights Commission Tribunal supporting the claim that the

dominant and controlling party: the Attorney General of Canada (AGC) has acted

inequitably. Elie Weisel (1986), as survivor-witness, tells us, " I believed that, having

survived by chance, I was duty-bound to give meaning to my survival, to justify each

moment in my life. I knew the story had to be told. Not to transmit an experience is to

betray it" . Canadians are living witnesses to the colonialist history of Canada. Again,

going back to Bloom (2009), we may consider that activist are made and not born. Weisel


(1984) recounts in a Dvar Hashavua article, Bdiduto shel elohim [translation: The

loneliness of God], "if someone else could have written my stories, I would not have

written them. I have written them to testify." The Caring Society is witnessing and

testifying on behalf of Native children. By becoming aware, we join this chorus of


Witness-appointees & levels of witnessing

Robert Thompson, QM, LLM., Superintendent (ret’d.) Royal Canadian Mounted

Police, describes witnesses as not being aware and yet not being wilfully blind

(Thompson: personal comment, 2013). This echoes Felman's (1995) testimony that

witnessing is a strange appointment which precludes reliving and instead we reinterpret.

When one is a witness, whether one chooses to be witness or is chosen (is an unwilling

witness or unplanned witness), it is a thorny crown borne of inquiry and/or accidents that,

intellectually penetrating, is not so casually discarded, or de-branched, as further

suggested by Daub's (1992) description of three distinct levels of witnessing, somewhat

akin to Bronfenbrenner's ecological systems - we are informed by influences radiating

outwardly and/or inwardly, and once influenced, we are marked. Pro or con, we reflect.

This is the tightrope witnesses walk, and as my narrative journey it speaks to my

antiracist education intervention through invitation to participate observationally. I have

experienced this engagement in both internal and external examination in solitude,

accepting my responsibility for this (Felman, 1995), yet considering that solitude as a

filter prepares me to witness collectively, sharing what I have learned and experienced.

There is a responsibility in witnessing the case currently before the Canadian Human

Rights Tribunal between the Caring Society and the AGC. Accepting that responsibility


is my antiracist intervention: to share with others the events and circumstances of the

claims being made by the Caring Society speaking to federal Native children's welfare

funding and Native child welfare in Canada, as reported by Cindy Blackstock and others

referenced in the Caring Society website under the heading 'All News'.

The Caring Society has been witnessing and/or testifying on its website, in the

courts, and in the court of public opinion. I too have become a witness, and now I too am

testifying. Here. Through this article - it is my testimony. My purpose is to speak to what

I have read and watched and learned, perhaps widening any potential breach in any

Caring Society - purported historic wall of denial by Canada and its non-Native

population (and others) to the conditions and inequalities of treatment being experienced

through underfunding of Native Canadians, in particular Native Canadian children. I

believe this testimony bears witnessing in the greater gallery of public discourse.

The Canada Human Rights Commission Tribunal (CHRCT) complaint

The legal case still before the CHRCT began when, on February 23, 2007, the

Caring Society (the Caring Society, Assembly of First Nations [AFN] and Canadian

Human Rights Commission [CHRC], with Amnesty International and Chiefs of Ontario

named Interested Parties) filed a complaint against the Government of Canada, namely

versus the Attorney General of Canada (AGC). In a ruling on the complaint, it was

judged that discrimination on the basis of race and national ethnic origin, contrary to

section 5 of the Canadian Human Rights Act, had occurred (RCS, c.H-6 The Act 1985;

and Sophie Marchildon, CHRCT 17, 2012.08.23 2012, 2).

The case is said by the Caring Society to have dragged on much longer than

necessary. In 2012, the Caring Society publicly blames the Government of Canada (AGC)


for this on their website. The opinion that a similar claim within the provincial/territorial

human rights tribunal system(s) would take significantly less time to be concluded has

been voiced by Bernard Richard, New Brunswick's Ombudsman, as also reported on the

Caring Society website in 2012.

Given that the complaint was filed on February 23, 2007, it is now more than 85

months since the initial filing. Roughly $4 million, using as a model for estimating

expenditures to date an earlier article titled "Ottawa Spends 3 Million to Battle First

Nations Child Welfare Case" [The Globe and Mail, October 1, 2012] has been spent

fighting less in child funding. The Caring Society argues the accrued delays are

unreasonable. Reading the Canadian Human Rights Commission's (CHRC) FAQs on

their website, in 2013, the length of time taken, experienced while Canada's appeals are

considered, might be read to infer an unwillingness on the part of Canada to find a

solution. While I have been unable to find federal CHRC statistics addressing how long

an average case takes, I was able to learn from the 2007 Annual Report by the Province

of Alberta's Human Rights and Citizenship Commission, that was published on the

Sheldon Chumir Foundation for Ethics website in 2012, that their average claim period,

from filing to conclusion, takes 11.6-12.0 months or 14.5% as long as the Caring Society

v. AGC (thus far).

The Caring Society website in March 2013 shared linked video footage provided

by Prime Minister Stephen Harper's media website, whereby the Prime Minister, on

National Aboriginal Day, on June 21, 2011, gallingly and hypocritically claimed,

publicly, to be advancing good care for Aboriginal communities:


"Our government is committed to working with Aboriginal

communities, as well as provinces and territories, to provide

Aboriginal people with the education and tools they need to reach

their full potential and achieve a higher quality of life for their

families" (Harper, 2011).

The Caring Society argues that the funding sources would logically include equitable

child welfare care, which equitable funding could facilitate; yet this case has gone

undecided for almost seven years. Aboriginal people, the Caring Society informs us, do

not have access to the funding sources they need to thrive and achieve a higher quality of

life for their families, despite Harper's rhetoric.

Having some personal experience of human rights tribunal procedures, and

referencing the Caring Society website commencing in 2013; a timeline of related major

milestones, legal events and procedural delays experienced since the complaint was filed

in February 2007, I have noted how it has unfolded very unconventionally, compared to

timelines for provincial cases as previously cited, in that extensive delays have been

experienced by the Complainants (see Appendix I). During that first Winter, Canada

argued that the complaint was outside The Act as Canada funds but does not provide

services and that as Canada only funds Native children only, it cannot be seen as

discriminating against them as there are no comparable groups to measure against. This

is what Cindy Blackstock explains as, "The government wants off the equality hook

arguing that funding is not a service so governments cannot be held accountable under

the Canadian Human Rights Act even if they fund unequally on a discriminatory

ground." (Blackstock, 2009a). The Human Rights Commission Assessor (HRCA)


disagreed, recommending that the complaint move to Tribunal. Canada invoked a

procedural claim to delay the movement to Tribunal, and applied to the Federal Court of

Canada (FCC) for a judicial review of the finding. The FCC agreed with the HRCA. Now

already two years along, the FCC stayed Canada's delaying tactics and the case was

scheduled to proceed to a hearing. Canada appealed. Canada asked for preliminary

decisions only on Service and Comparator issues, to chip away at the complaint, and

further delay a hearing. Hearings actually began in December of 2009. As soon as the

hearings began, the First Chair in the matter before the Tribunal, Judge Murray Sinclair,

vacated after the first day as his official retirement then took effect. While Judge Murray

would have stayed, and in fact requested he be allowed to do as much, his request was

denied, and the case reverted back to limbo. Nothing happened for the next sixteen (16)

months until March of 2011. I am reminded of Thompson's expert opinion on this

situation, how procedural rights can be misused to delay the expediting of due process

and how bureaucracy and/or legal privilege may be legally but improperly used as a

vehicle to postpone or distance government from an issue it does not support or endorse

(2013). That the Caring Society has claimed pretty much the same thing as a former

Counsel for the Crown in matters relating to Native Affairs, when witnessing these events,

is thought-provoking for me.

So what happened in March 2011, after this first lengthy delay? The newly

appointed judge, First Chair Judge Shirish Chotalia, granted Canada's motion and

summarily dismissed the complaint. The complainants, stepping back after being winded

by the judicial upper cut to their legal thoraxes, applied to the FCC for a review of the

decision. The review was granted, and the Tribunal's decision under Judge Chotalia was


set aside, in 2012. By August 2012, the case was seen as proceeding. Canada tried but

failed to get the FCC to overturn this decision. The Tribunal proceeded concurrently. By

all appearances, the full hearing was on, until Canada again appealed to the HRCA,

which led to a further delay from August of 2012 until March of 2013. It was in

February of 2013 that Canada simply proposed cancelling hearing dates. The

Complainants objected. And the case proceeded. In fact, it is still proceeding, slowly, and

can be followed in minute detail via the Caring Society website. The legal motions, court

findings, appeals, objections, delays, and timeline are all clearly presented for your lived-

experience of witnessing Canada's present-day colonialist legal treatment of Natives


The Caring Society witnesses the family hardships and heartache they allege

occur because of inadequate child welfare funding and a subsequent denial of equitable

services by referencing news reports on their website. On May 13, 2010 Aboriginal

Peoples Television Network (APTN) and on May 3, 2010, the Canadian Broadcasting

Corporation (CBC) news reported Sagkeeng tribe member Alma Mann-Scott as saying in

an interview that social services provided to Native Canadians on reserve are different

from those off reserve. This may have contributed to the death of her handicapped

brother, and did affect her decision to give up custody of her grandson so he could

receive appropriate childcare services off reserve that would otherwise be denied him by

the province as a reserve-status Indian on reserve, geography notwithstanding. One must

ask why geography, in a land as vast as Canada, is used to divide rather than trying to

unite us. We are told, for example, "Being an on-reserve Indigenous person and leaving


one's community means crossing the spatial and legal boundaries of the colonially

constructed Indian reserve." (de Leeuw, Maurice, Holyk, Greenwood & Adam, 2012).

This social engineering, legislated disparity in access of services and resources, and

forced colonial education directly and negatively impacts Indigenous peoples'

contemporary well-being (Kelm, 1999; Marmot 2005; Kelly et al. 2007; Marmot et al.

2008; Richmond and Ross 2009; Castleden et al 2010). Cindy Blackstock says, via the

Caring Society website, that she considers racism and the racialization of Native

Canadian children on reserve as an infringement of their rights under the Canadian

Charter of Rights and Freedoms 1982 [which is accessible at http://laws-

lois.justice.gc.ca/eng/Const/page-15.html]. Blackstock contends access to better funded

child welfare systems exists off reserve. The 22% less federal child welfare funding cited

by the Caring Society as being received on reserve equals an estimated $200 million per

year less in comparative funding.

Blackstock (2007) tells us that the whole point of seeking additional and equitable

federal funding for increasing Native Canadian child welfare funding, according to

Natives, their advocates, media, and witnesses, is to better fund intensive family and

child support programs, and to implement programs of least disruptive measures; that by

supporting First Nations directly we can better address the poverty, poor housing, and

substance misuse experienced and witnessed on reserves. New Brunswick Ombudsman

Bernard Richard notes in his report, “Hand-in-Hand: A Review of First Nations Welfare

in New Brunswick", that, since 1993, "First Nations Child and Family Services (FNCFS)

Agencies in New Brunswick have had their own culturally based standards...consistent

with the principle of self-governance...an important mechanism for developing child


welfare services that are accepted and embraced by First Nations communities" (Richard,

2010). Thus, added funding by the federal government for Native-led systems and

programs can succeed, and arguments put forth by the AGC in the media that First

Nations communities are not equipped to manage such additional funds are ungrounded,

the Caring Society website furthers in 2013.

In 2013, the Caring Society shares with us through their website, that it feels there

are issues related to the politics of representation on the judiciary hearing these

complaints, as the AGC is both named and defended by the judiciary hearing federal

motions and appeals.

From Residential Schools to foster care, plus ça change, plus ça reste la même...

Charges of a programmatic removal of Aboriginal children from allegedly baneful

parents by the Department of Indian Affairs are levelled by Mary-Ellen Kelm in her book,

Colonizing Bodies: Aboriginal Health and Healing in British Columbia 1900-1950

(1998). Kelm's book historicizes claims that this is not a new phenomenon in Canada,

and in that sense the placement of Native Canadian children in non-Native foster care has

been construed by the Caring Society and AFN as a continuation of policy not unlike the

placement of Native Canadian children in residential schools. During the period of

residential schools, the Government of Canada considered the given nature of Indians as

savage, parents were largely ignored and considered beyond reforming, and so focusing

on Aboriginal children seemed the more pragmatic approach to take when addressing the

Aboriginal problem. Further, staggeringly, 150,000 Native Canadian children were

removed from their homes and families from 1876 to 1996, and then placed in residential

schools, whereupon estimates of upwards of 50,000 of them died from disease, neglect,


malnutrition and abuse at the hands of their so-called civilised government-appointed

caregivers (Bryce, 1922), as further supported by a May 16, 2008 CBC news feature on

residential schools. In a post-residential school Canada, very oddly, the Caring Society

tells us that more Native Canadian children are currently deemed at risk and subsequently

removed, annually, from the home and placed in non-Native foster care than Native

Canadian children were formerly placed in residential schools. We are reminded by

Cindy Blackstock that, "for a colonial power to be successful, it must take the land,

control the natural resources (especially food and water sources), suppress self-

governance, delegitimize culture (language, spirituality, education, and so on) - and,

finally, it must take the children." (Blackstock, 2012)

For the survivors, Thompson reminds us that the programmatic removal of

children from traditional home settings also created broken generations (2013). Very

interestingly, as Anna Flaminio recounts on the kinanāskomitin website [visit

http://scaa.sk.ca/ourlegacy/about] , in 2013, Resolution 260 (III) A of the United Nations

General Assembly Convention on the Prevention and Punishment of the Crime of

Genocide as including "forcibly transferring children of the group to another group."

(UNGA, R260.3, a.2, 1948) [visit http://www.hrweb.org/legal/genocide.html]. The

forced removal and placement of native children from possibly at-risk environments to

non-native foster homes and/or residential schools has not been without social costs, as

individual positionalities and relationships are impacted by past violence and present

colonialist remnants of privilege and power imbalances (Simpson, James & Mack, 2011).

On the Canadian Broadcasting Corporation's "CBC's Power & Politics" of

February 25, 2013, Terry Cross of the National Indian Child Welfare Association


critically discussed the Canadian Human Rights Tribunal case examining living

conditions for children on First Nations reserves, National Chief Shawn Atleo of the AFN

was reported as having told the CHRC Tribunal that the systemic underfunding of child-

welfare services on reserves means First Nations children today are essentially re-living

the residential school nightmare, and that Aboriginalism is a cultural strategy on the part

of the state to effect the spiritual defeat and cultural assimilation of Natives, with any

subsequent political and economic negotiations becoming little more than some sort of a

mopping-up operation (Alfred, 2005). Perhaps the denial or delay of justice and redress,

while engaged in funding negotiations, is a federal tactic aimed at breaking the spiritual

backs of communities by ensuring a status quo of harm to their children through

inequitable welfare funding strategies.

Parental and family situations on reserve that are assessed as at risk for children

commonly involve the misuse of alcohol and drugs and other substances. Cindy

Blackstock tells us via the Caring Society website that the easiest solution for Children's

Aide Societ(ies) (CAS) is to intervene and extract children, placing the children in non-

native foster care, as there is a dearth of family crisis prevention and family support

programs in place on reserve, owing to underfunding. The Caring Society is seeking to

redress this through their complaint.

The White Paper [1969]

To his credit, in 1968, then Federal Minister of National Revenue, Rt. Hon. Jean Chretien

wrote G.R. Baldwin, "it has been found that for the average Indian child, remaining a

member of the family unit can be more beneficial than the best residential school care"

(Milloy, 1999). This letter was penned just prior to Chretien being handed the Ministerial


portfolio of Indian Affairs by Prime Minister Pierre Elliott Trudeau. That was forty-five

years ago and issues of native child welfare in Canada seem to have progressed little.

Given Pierre Elliot Trudeau's status as the often-labelled Father of Multiculturalism, as

well as Father of the 1969 White Paper [Statement of the Government of Canada on

Indian policy] , and Jean Chretien's status as his right hand man, it behooves us to

consider that, "Multiculturalism insists on the primacy of the individual and thoroughly

denies the significance of institutions." (Simpson, James and Mack, 2011).

Statistical red flags

According to Statistics Canada's online website, Native Canadians represent 1.6%

of the Canadian population, yet, using statistics cited by Michael Woods and Sharon

Kirkey in the Montreal Gazette on May 8, 2013 as the basis for estimates, as of

November 2013, they account for 47% of children placed in foster care by CAS

protective services. Canada has approximately 30,000 children in foster care, of which

14,225 are Native. It can be argued that they are over-represented in foster care by a ratio

of 33:1. An appropriate representation of 1.6% would be 440 children. Native children

are over-represented in foster-care, Cindy Blackstock tells us on the Caring Society

website, because they are considered more at risk and there are fewer protections for

families on reserves. Cindy Blackstock also recounts, on the Caring Society website,

that prevention and family support systems are absent or inadequate on reserves. Least

disruptive practices for CAS should mean fewer extractions of Native Canadian children

from their families in all but the most serious of family emergencies and crises. The

federal government underfunds child welfare on reserve, and provinces pay for child


welfare off reserve, including for children removed from homes on reserve for off-

reserve, non-Native foster care placement. On-reserve Native Canadian children therefore

qualify for lower funding because they are on reserve. They are on reserve because they

are Native Canadians. Parents or guardians must give up their children's on-reserve status

or their children be extracted from the reserve to qualify for better-funded welfare care.

Non-native children off-reserve in Canada do not have to be jurisdictionally surrendered

to the CAS to qualify for equitably funded services. Federal government spending is 22%

less for Native Canadian child welfare on reserve than it is for child welfare off reserve,

according to the Caring Society, which can be thought to contribute to the racial

marginalization of a very targeted ethnic group (Thompson, 2013). These children are

seen as a race and are therefore racialized by the federal government because they live on

Native reserves (reserve-status Natives). They are subject to racism because they are

treated differently by the Government of Canada in regard to child welfare funding, to

their harm and disadvantage, the Caring Society claims. They are living on reserves as

members of a race of reserve-status Native Canadians. And treated inequitably for it.

This possible negligence of care leeches from Native child welfare to Native child

education, as inferred in the case of New First Credit Nation (on behalf of Sloan and

Marvin) v. Aboriginal Affairs and Northern Development, whereby two Native Down's

Syndrome children were being refused special education services off reserve, because

they were reserve-status Native Canadian children. Off-reserve school boards were

demanding $80,000 per child per year to accommodate their special needs, as they were

not covered by the AGC [ see http://www.firstnationsspecialeducation.ca]. Equitable


access to education, morally, should also be a part of overall child welfare in Canada.

These two separate issues are intertwined, the Caring Society contends.

Concluding thoughts

The Caring Society's online claims of inequitable federal Native child welfare

funding serve as antiracist education interventions through witnessing by the society and

by a community of witnesses developing from the Caring Society website. The reader

also becomes a witness though exposure. Through a shared review of claims made by,

and events reported by, the Caring Society, we become aware and better qualified to give

witness to others on this subject. While the inspiration for this article came from media

reports, the invitation from the Caring Society to become a witness was itself most

compelling, and perhaps will compel the reader. My act of witnessing has taken place

with little direct consultation of government representatives, and so it remains incumbent

upon the reader to review the arguments presented while keeping in mind Foucault's

belief that Truth as epistēmē shifts through history (Foucault, 1970, 1974).

The act of "becoming a witness" is not entirely unlike that of becoming anything

else; it is a [hoped-for] natural response as a human being upon seeing or learning of an

act of (passive/) aggression towards another individual or group of individuals. We

become witnesses to our lives, our times, our societies, our cultures, and those groups

perceived as our constructs of racial belonging; or even those 'races' we do not belong to,

but know through observer status. As witnesses to a human rights complaint between

Natives and Canada, we must potentially wear two hats, being mindful of our possible

researchers gaze of settler government participant and then also of observer. We can only

be asked to be as fair or open-minded as possible, to empathise with the complainants if


and as appropriate, while acknowledging our own lenses and identities. What Bonita

Lawrence (2003) says has become natural to contemporary Native life may well be

unnatural, and that possibility needs to be considered. Witnessing what has been, and

what has occurred, can help us to perhaps better learn how to address equality in the now

and in the future, for all peoples living within what is called Canada. Whether federal

Native child welfare funding is inequitable in Canada or not is a question that begs

answering, in the courts and the court of public discourse. A possible benefit from people

becoming informed as witnesses could be greater related and shared public and private

critical discourses.

As witnesses, we do more than see, we learn, and, as "nothing comes from

nowhere" (Parmenides, 540-515 BC est.), we can teach. This small first step in the

journey towards implementing an antiracist education in society, toward the diminution

of racism and racializations, through this act of witnessing, this act of antiracism, may

help fix a wrong-headed and flawed system of colonialised wrongdoing, rallying a

discourse of dis-accommodation of the culturally murky and shadowed realms of racism;

as witnesses we are charged with rendering such places uninhabitable (Hall, 1997). We

must prod those who dwell therein to step forward, and to encourage change.


Appendix I: Timeline of First Nations Child & Family Caring Society of Canada Human Rights

Commission Tribunal Complaint of Inequitable Native Child Welfare Funding by


Date Action Result

27.02.2007 Case filed Proceeds




Canada argues, perceived as an unnecessary procedural delay by

FNCS: Canada argues, writing the Human Right's Commissions'

Assessor [HRCA] the complaint is outside the act because: (a)

Canada funds, but does not provide services [the provinces provide

services] and (b) because Canada provides funding for child

welfare to Native children only, it cannot be seen to discriminate

against them. This argument is denied, and the HRCA recommends

that the complaint go to Tribunal.





Exercise of procedural opportunity seen as delay by FNCS: As

soon as the complaint moves to Tribunal, Canada applies to the

Federal Court of Canada [FCC] for a judicial review of the referral,

same arguments.


11.2009 FCC stays Canada's application, case scheduled to proceed towards

a hearing on the merits of case





Canada appeals, stay upheld. Delay




Canada asks for preliminary decisions on Service and Comparator



12.2009 Hearing on merits begins




First Chair (Judge Murray Sinclair) vacates due to his retirement

after first day of hearings [Judge Murray Sinclair not asked to

extend stay, though would have if asked, he later says in



12.2009 New Chair (Judge Shirish Chotalia) inexplicably vacates all

hearing dates.


12.2009 Canada files motion to dismiss. Delay




Lengthy period of inaction. Delay

03.2011 First Chair Judge Shirish Chotalia grants Canada's motion,

dismisses complaint.


03.2011 Complainants apply for FCC review of decision. Delay

2012 Review granted, Tribunal's decision set aside, case sent back to



2012 Canada appeals to FCC. Overturned Delay

2012 Tribunal proceeds concurrently. Proceed

08.2012 Canada's appeal denied and case to proceed to full hearing at






Canada appeals. Delay

02.2013 Delay: Canada proposes cancelling hearing dates, Complainants



02.2013 Tribunal orders hearing dates to proceed. Proceed




FCC hears Canada's appeal. Dismissed March 11. Tribunal

reconvened April 2, 2013.


04.2013...present Tribunal Hearings continue Ongoing



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