How Might a Lawsuit Against the Federal Government on Behalf of Deceased Indigenous Youth Alter Policy?

Robert St. Pierre 

“It’s time for First Nations leaders to consider a class action lawsuit against the federal government on behalf of Indigenous young people who have died by suicide”, said Isadore Day, the Ontario Regional Chief with the Assembly of First Nations. His comments were made in the wake of the suicides of two 12-year old girls from Wapekeka First Nation in Northern Ontario this January. This issue bears serious consideration given that the rate of suicide among Indigenous youth is twice the rest of the Canadian population. Furthermore, in the case of Wapekeka, requests for help were made in advance of the suicides of Jolynn Winter and Chantel Fox. When funding requests are neglected, or as Health Canada puts it, they come in at an awkward time in the federal funding cycle, a class action lawsuit may be the best recourse for adequate redress of the issue. The question begs asking though, how might a lawsuit help indigenous policy direction?

In the past decade, the Federal government has amassed legal claims against it at an unprecedented rate. According to some reports, the present the number is around 45,000. A full cabinet committee was established to track the lawsuits, with concerns about what the outstanding liability settlement costs would have on the treasury. Although a lawsuit might help garner media attention and financial compensation for the Federal neglect of specific mental health services required by First Nations communities, it risks being a slow, drawn-out process that is merely one more star in a galaxy of lawsuits. Although this doesn’t help in the immediate future, legal recourse is perhaps necessary because of the way that Indigenous policy has been primarily influenced by court decisions since the repatriation of the constitution. It is also largely understandable given the frustration Nishnawbe-Aski First Nations leaders in Northern Ontario feel thanks to inadequate funding for mental health services through treaty terms.

Although a lawsuit might help garner media attention and financial compensation for the Federal neglect of specific mental health services required by First Nations communities, it risks being a slow, drawn-out process that is merely one more star in a galaxy of lawsuits.

The suicide crisis demonstrates clearly that the mental health and well-being of Indigenous peoples in Canada is an after-thought in federal policy-making and budget processes. Crises, however, never temporally align with funding cycles. The federal government must take this into account and move away from only deploying a reactionary approach to these issues. The need for a more proactive approach that acknowledges the plight and needs of youth, particularly of those living within Treaty 9 communities, has already been demonstrated by the youth suicide crisis in nearby Attawapiskat in the summer.

The suicide crisis demonstrates clearly that the mental health and well-being of Indigenous peoples in Canada is an after-thought in federal policy-making and budget processes.

Frankly, it’s sad that the persistence of a reactive rather than a proactive approach to dealing with the mental health of indigenous youth remains the case, even after the Canadian Human Rights Tribunal ruled that the unequal services offered to Indigenous youth in Canada amounts to discrimination in January of 2016.

It is possible to find the tiniest of silver linings in the policy context of the youth suicide issue. At the very least, the federal government has voiced serious concerns about the issue when pressed, and the Prime Minister has put in efforts to meet with the AFN, as well as the Chiefs of La Loche, Attawapiskat, Wapekeka, and others. What will it ultimately take for a policy window to avail itself though? Litigation is costly, lengthy, and has severe limitations in shaping policy because it fails to describe solutions, particularly in the Indigenous context. A lawsuit might help to restore some sort of justice for the negligence of government in this regard, but what does that do for other prospective Indigenous youth in need of support? Public opinion is crucial, and public support will ultimately be needed to put pressure on shaping policy towards funding preventive programs, on top of adequately funding children’s health and social services, as well as education.

As a longer-term ambition, many will point to the apartheidist system that the Indian Act and the reserve system constitute, and call for their abolishment as the coroner of 5 indigenous suicide deaths in 2015 in Quebec has done. These concerns have some merit, as there is little doubt that the Indian Act and the system of reserves have constituted a system of apartheid, to the extent that they are said to have even been major influences upon the more well-known South African Apartheid.

At this point in time, though, what is needed for once and perhaps more than ever is to listen to Indigenous leaders themselves.

At this point in time, though, what is needed for once and perhaps more than ever is to listen to Indigenous leaders themselves. In the case of Wapekeka, the Nishnawbe-Aski First Nations is requesting that the government fulfill its obligations of providing health resources to its youth in particular, regardless of the long-term future of the Reserve system and/or the Indian Act. The leaders understand what is working in their own communities more than others, such as the funding of suicide prevention programs. Nishnawbe-Aski Nations are asking for a co-ordinated response between provincial and federal governments to help with caring for Indigenous youth. Immediately repealing the Indian Act, even if the Act itself is a main cause of the suicide crisis, does not redress a history of deceit and subjugation. Similarly, it does not directly solve the simple fact that the Federal government is not spending what it should, nor what it has said it would on Indigenous youth.

I, for one, suggest that present calls for help are heeded.

Rob St. Pierre is originally from Kitchener-Waterloo, Ontario, where he completed his undergraduate degree at Wilfrid Laurier University.  His writing interests include social policy, indigenous issues, and political ecology. In his spare time, he is passionate about music, gardening, and documentary films.

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