An editorial by Adam Bond, Legal Counsel to the Native Women’s Association of Canada
On November 5th, Manitoba’s legislature passed Bill 2, prohibiting legal actions against the province for its refusal to give to foster children funds that were, by law, to be applied exclusively for their care.
This horrendous attempt by the province to inoculate itself from judicial oversight of its theft from foster children is not merely a despicable act of greed, it is an effort to infringe on the jurisdiction of Parliament and, worse, a pathetic flailing leap to evade the provinces fiduciary duty owed to Indigenous children in the province.
The funds that the province is attempting to shield from legal action are the payments withheld by the province to children in foster care in the province between January 2005 and March 2019.
To be clear, these funds are not provincial revenues or equalization payments. This is money, provided to the province by the Government of Canada and mandated by Parliament under the Children’s Special Allowance Act (CSAA), to be applied exclusively to children in the care of the government.
Scott Fielding, Manitoba’s Minister of Finance, introduced Bill 2 to the provincial legislature on October 9th, and the intent of the provisions dealing with the CSAA funds was, clearly, to usurp the mandate legislated by Parliament for these funds and to disposed of them at the will of the province without regard for lawful jurisdiction.
These are federal funds distributed under the authority of Parliament. Bill 2 works to exert legislative control over the disbursement of these withheld funds through Crown immunity provisions, despite its complete absence of jurisdiction to do so.
Perhaps even more unsettling is the nefarious and dishonourable method by which the provincial government seeks to intrude on federal jurisdiction over CSAA funds.
The excessive and far-reaching nature of the Crown immunity clauses that work to inoculate the province from judicial oversight respecting the money it took from foster children paints an incriminating portrait of a government charged with a duty to act honourably in the circumstances.
The legislation prohibits, not only actions against the province for the CSAA funds it withheld from the children in need, but also prohibits any award of damages or legal costs against the province. Tellingly, the legislation also prohibits any proceedings against the province for bad faith or breach of fiduciary duty in the matters.
Minister Fielding’s astute observation regarding fiduciary duties to Indigenous children respecting CSAA funds is perhaps evidenced in his drafting of these provisions. This is because the province’s duty to act honourably in all its dealings with Indigenous peoples may be implicated here.
In 2011, 85% of Manitoba children in foster care were Indigenous. It may seem like a long walk to argue that disbursements of CSAA funds comes within the sphere of Indigenous rights, and therefore trigger the honour of the Crown and attract a fiduciary duty. The circumstances, however, demand careful consideration.
Any assertion that government actions affecting foster children in Manitoba cannot amount to de facto dealings with Indigenous peoples is facile.
The massive rates of overrepresentation of Indigenous children in Manitoba’s foster care system are a direct and indisputable result of the trauma and poverty inflicted on First Nation, Métis and Inuit families and communities by the mechanisms and institutions of colonization. The government may not manufacture the circumstances that cause the removal of Indigenous children from their homes into foster care systems and subsequently pretend that dealings with those systems do not constitute dealings with Indigenous peoples.
The government may not do this because the fiduciary duty owed by the government to Indigenous peoples is predicated on the honour of the Crown, and to remove children from their communities to evade that fiduciary duty is an act utterly deprived of honour.
Minister Fielding’s Bill 2 seeks to usurp federal funds from the clear and unambiguous legislated purposes Parliament assigned to them under the CSAA.
Adding insult to injury, in doing so, the provincial government is attempting to use Bill 2 to wrestle an albatross of its own making from around its neck by asserting its own impunity for breaches of good faith and derelictions of the duty to maintain the honour of the Crown when dealing with Indigenous peoples.
Bill 2 may have raised some complex legal and policy issues, but the most important issue raised by the Bill was not a difficult one at all. Unfortunately, when the Manitoba legislature was presented with the morally elementary question of whether it is right to continue to unlawfully withhold money from vulnerable children, the province’s MLAs, by a vote of 32 to 21, said “yea”.