Tracing settler state responsibility for structural harm: Canadian Human Rights Tribunal case on First Nations child welfare

Abstract

ABSTRACT This article discusses ideas of causation and responsibility for long-term, structural harm perpetuated through settler colonial institutions. Examining the case of a human rights complaint over discrimination of First Nation children in Canada’s child welfare system, the article looks at challenges of accommodating such complex harms in the framework of legal liability emphasizing immediate causation and impact. In 2016, the Canadian Human Rights Tribunal ruled that the federal government’s funding policy of child welfare services on First Nation reserves leads to disproportionate removals of children from their homes, and in 2019 it ordered the government to financially compensate children and caregivers impacted. According to the government's defense no direct connection could be proved between the funding policy and the removals, and harm resulting from the removals could only be assessed individually. The article traces how the decisions challenge these arguments by extending the scope of the harm at stake from individual removals to historical and ongoing formation of circumstances that make them happen. Setting the case in the historical context of intergenerational harm caused to First Nation kin and community relations by colonial policies, I suggest, the decisions challenge discourses that locate responsibility for such harms in the past.