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September 30th, 2022: The ongoing but worthwhile struggle for truth and reconciliation


Each year, September 30 marks the National Day for Truth and Reconciliation (also known as Orange Shirt Day). The day honours the survivors of residential schools, their families and communities. It honours the children who attended residential schools and never returned home.

The residential school system was part of Canada’s attempt to cause Indigenous peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities. The Truth and Reconciliation Commission called this process of assimilation “cultural genocide”. Residential schools served as a medium of assimilation because the system disrupted Indigenous families and prevented them from transmitting culture, spirituality and language from one generation to the next. The orange shirt worn on September 30th acknowledges this history and its intergenerational impacts.

September 30th, 2022 will mark the second anniversary of the National Day for Truth and Reconciliation. Over this past year, Indigenous communities have continued the search for unmarked graves near residential school sites. Within this context, we have seen some significant developments regarding Indigenous child and family welfare over this past year. The Quebec Court of Appeal (QCCA) found that Indigenous peoples have a right to self-government in relation to child and family welfare. The federal government and national Indigenous leaders have also negotiated agreements to address the systemic discrimination within the federal child welfare system. While these developments are significant, they also reveal the ongoing, but worthwhile, struggle for truth and reconciliation.

The QCCA, in assessing the constitutional validity of the federal Act respecting First Nations, Inuit and Métis children, youth and families (the “Act”), found the Act constitutional, except for sections 21 and 22(3). (It held that these sections operate to make Indigenous law supersede that of provincial law in the regulation of child and family services and are therefore invalid.) In its analysis, the QCCA also found that section 35 of the Constitution Act, 1982 provides a space for Indigenous peoples to exercise their inherent right to self-government in relation to child and family welfare. The Court acknowledged that Indigenous peoples have faced significant barriers, such as residential schools, in exercising their right to self government in this regard. The QCCA’s decision has been appealed to the Supreme Court of Canada, which is set to hear the appeal later this year.

Another significant development in relation to Indigenous child and family welfare that occurred this year was the agreements-in-principle on child and family services compensation and reform that were reached between the federal government and national Indigenous leaders. These agreements stemmed from the Canadian Human Rights Tribunal’s (CHRT) finding that the federal government had systemically discriminated against Indigenous children in administering the First Nations Child and Family Services (FNCFS) program and by narrowly defining Jordan’s Principle. A final settlement agreement on compensation has been reached and provides for $20 billion for those affected by Canada’s discriminatory practices. A further $20 billion has been pledged to reform the federal child and family welfare system.

The final settlement on compensation is subject to approval by the CHRT and the Federal Court. In advance of these approvals, some, including Indigenous children’s rights advocate Cindy Blackstock, have expressed that the compensation deal does not go far enough because it does not guarantee a minimum of $40,000 in compensation for each person affected by the discrimination identified by the CHRT. The $40,000 figure is significant because it is the amount the CHRT originally ordered Canada to pay to each individual affected by its discriminatory practices.

The QCCA decision and the combined $40 billion-dollar commitment to reform the federal child and family welfare system and to compensate those who suffered discrimination as a result of this system demonstrate that truth and reconciliation is an arduous journey. However, in the words of Pitikwahanapiwin (Chief Poundmaker), “we all know the story about the man who sat by the trail too long, and then it grew over, and he could never find his way again. We can never forget what has happened, but we cannot go back. Nor can we just sit beside the trail”. On this National Day for Truth and Reconciliation, lets us not “sit beside the trail”, but choose to walk along it, as difficult as it may be.