First Nations’ $2.1B proposed class action accuses governments of ‘devastating mismanagement’ of child welfare

A $2.1-billion proposed class action heads to court on Monday, where Manitoba’s chief justice will decide if the provincial and federal governments failed 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 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.”

“In the guise of providing care, Manitoba and Canada have employed discriminatory practices to destroy First Nations families [and] cultures,” according to the claim filed in the Court of King’s Bench. 

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 make 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.

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:

Both governments are opposing the certification motion and summary judgment.

The province declined to comment as the matter is before the courts. The federal government did not respond to a request for comment prior to publication.

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.

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 it 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 representing the First Nations, along with the Toronto-based law firm McCarthy Tétrault.

“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.