In 2007, the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations filed a complaint against Indian Affairs and Northern Development Canada, accusing it of discrimination. They argued that the family and child support services made available to First Nations children on reserves and in Yukon were underfunded and inferior to those offered to other Canadian children. Indigenous children were also six to eight times more likely to be placed in foster care—more often than not in non-Native homes. This situation was reminiscent of the assimilation and trauma caused by residential schools, which was also widely discussed during the trial.

Including the many appeals, the legal process spanned nine long years before finally ending in victory for the plaintiffs in 2016. We Can’t Make the Same Mistake Twice gives a voice to those involved in this legal battle, notably Cindy Blackstock, Executive Director of the FNCFCSC, who endured government spying and retaliation as a result of her central role in the trial. Abenaki filmmaker Alanis Obomsawin guides us through the intricacies of the legal system while never losing sight of the real issues at stake: the welfare of children and the survival of Indigenous cultures.

In 2007, the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations filed a complaint against Indian Affairs and Northern Development Canada, accusing it of discrimination. They argued that family and child support services made available to First Nations children on reserves and in Yukon were underfunded and inferior to those offered to other Canadian children. The legal process that followed spanned a period of more than nine years and ended in victory for the plaintiffs in 2016. We Can’t Make the Same Mistake Twice, by Abenaki filmmaker Alanis Obomsawin, documents this unknown and shameful chapter in Canadian politics.

The Facts

The complaint filed in 2007 dealt with Section 5 of the Canadian Human Rights Act. It denounced the gaps in services made available to First Nations children compared to other Canadian children, arguing these inequalities were based solely on the children’s origins. Indigenous children were also six to eight times more likely to be placed in foster care, more often than not in non-Native homes. The complainants alleged that this situation was not unlike the assimilation and trauma caused by residential schools—a topic that was also discussed during the trial.

The complainants further argued that the funding formula for services for Indigenous children living on reserves and in Yukon was based on arbitrary figures that were not only insufficient but had little to do with the real and specific needs of reserves. This was in addition to the jurisdictional disputes provincial and federal levels were frequently embroiled in, and which were causing services to be delayed or even cancelled. A case in point raised during the trial was the death of Jordan River Anderson, a Cree baby who died in the hospital while the Manitoba and Canadian governments negotiated who would pay for his at-home care. In Jordan’s honour, the House of Commons unanimously adopted “Jordan’s Principle” in 2007 to resolve such jurisdictional disputes in the future.

Although Canada’s Auditor General addressed these issues in her 2008 report, a number of Indigenous groups felt her recommendations were being inadequately implemented—notably, the federal government’s new program targeting prevention.

The Trial

The legal action taken by the First Nations Child and Family Caring Society of Canada (FNCFCSC) and the Assembly of First Nations (AFN) dragged on for nine long years. “This may not be that long in terms of justice, but it certainly is to families and children,” laments Denise Stonefish, Deputy Grand Chief of the Association of Iroquois and Allied Indians.

The trial’s sluggish pace was caused by a number of factors. The Canadian government objected to the presence of the Chiefs of Ontario and Amnesty International as interested parties. It also made several attempts to have the complaint dismissed, arguing, among other things, the lack of a comparison group for Indigenous children. This argument was accepted in 2011 but subsequently rejected by the Federal Court a year later. Canada’s Attorney General also belatedly disclosed tens of thousands of documents during the trial, creating further delays.

According to Cindy Blackstock, Executive Director of the FNCFCSC, the federal government spent more than $3 million trying to have the case dismissed. Dr. Blackstock, a central figure in the trial, was also a victim of government spying and retaliation. In June 2015, the government was ordered to pay her $20,000 in damages for “pain and suffering.”

In January 2016, the Canadian Human Rights Tribunal sided with the FNCFCSC and the AFN, ordering Indian Affairs and Northern Development Canada to end its discriminatory practices and to reform its program.

We Can’t Make the Same Mistake Twice gives a voice to both those who work in child services across Canada and those involved in this legal saga—beginning with Blackstock herself, who is determined to see things change. “I want this generation of children to know one thing: that we love them enough to fight for them,” she says. “And if it means sacrificing this organization or my job for it, then so be it.”

 Obomsawin’s documentary also allows people like Chief Robert Joseph and Derald Dubois to share their stories about growing up in residential schools, which, as the tribunal declared, were the premise for the government’s current discriminatory practices. “There has to be a better way of helping children than by tearing their families apart,” says Mr. Dubois, who now works for one of Saskatchewan’s child and family services agencies.

As Obomsawin guides us through the intricacies of the legal system, she never loses sight of the real issues at stake: the welfare of children and the survival of Indigenous cultures.