By Lloyd Dolha
Manitoba First Nations chiefs are outraged over a government union’s attempt to challenge an inquiry into the death of five year-old Phoenix Sinclair. On February 3rd, the Manitoba Government Employees Union (MGEU) filed a motion in the Manitoba Court of Appeal questioning the validity of the provincially appointed public inquiry into the tragic death of the child. At a February 6th press conference in Winnipeg, Grand Chief David Nepinak of the Assembly of Manitoba Chiefs (AMC) and Grand Chief Morris Swan of the Southern Chiefs Organization (SCO) voiced their dismay at the development. “We have watched as our children have become commodities of exchange in an industry that is more focused on funding arrangements and protecting jobs rather than the rights of and the protection of our children,” said Grand Chief Nepinak. “This latest maneuver by the Manitoba Government Employees Union makes it clear that the union is putting its own interests before the children of Manitoba. With respect to baby Phoenix, justice delayed is justice denied.”
The chiefs say the motion is a delaying tactic by the union representing government social workers designed to prevent the truth surrounding the child’s tragic death from coming out. “As Southern First Nations people, we feel that this is simply a stalling tactic by the MGEU,” said Grand Chief Swan. “The family of Phoenix Sinclair, the First Nations of Manitoba, and the citizens of this province have been patiently waiting for answers as to why this little girl’s disappearance went unnoticed for nine months in a system that was supposed to provide care for her.” Chief Swan said the entire child welfare system is in dire need of review as it has repeatedly failed First Nations children in the province. In Manitoba today, about 80% of the children in care are of Aboriginal decent.
Filing the court motion will immediately suspend the work of the inquiry, which was scheduled to begin public hearings on May 23rd, 2012. Ordered by the province in 2006, the Sinclair inquiry was to examine how Manitoba’s Child and Family Services staff and officials failed to protect the five-year old child, who was killed by her stepfather in June 2005. The inquiry will also examine why her death went unnoticed for months before her body was discovered.
Phoenix Sinclair was five years old when she was murdered in 2005. She spent most of her short life in the care of Winnipeg Child and Family Services before her mother Samantha Rematch regained custody of her in 2004. Police records have shown that in the final weeks of her life on the Fisher River First Nation reserve, Phoenix was beaten with a broom stick, shot with a BB gun, locked in a pen, and denied food and water. On June 11th, 2005, Phoenix died on the cold cement floor of her home in Fisher River. Her body was wrapped in plastic and buried in a shallow grave. It was not discovered until March 2006. Kematch and her common-law husband, Karl McKay, were both convicted of first-degree murder in 2008.
Garth Smorang, a Winnipeg lawyer representing the MGEU, said the union is not trying to sidestep its responsibility in the little girl’s death; it is just questioning whether the inquiry is valid to begin with. “The scope of the jurisdiction given to the commissioner may exceed what is allowed under the Manitoba Evidence Act,” said Smorang. Smorang said the first phase of the public inquiry, which was to discuss how Phoenix’s death went undiscovered for nine months, falls outside of the jurisdiction of the Manitoba Evidence Act, the legislation under which the inquiry was called. Smorang argued the scope of the inquiry is too broad, as it is properly covered by the Child Fatalities Act and the Child and Family Services Act.
The MGGEU has also sought a publication ban on the names and faces of nearly 40 child and family services workers who are expected to testify at the inquiry. The union argues that the ability of child welfare workers to do their jobs and earn the trust of families coping with abuse or neglect will be compromised if their names and photos are widely published or broadcast. Chief Nepinak said it seems the protection of the anonymity of workers has taken precedence over the care and protection of children. “If the MGEU is genuinely concerned that the province has drafted the terms of reference in such a way that the scope of the inquiry is outside of the commission’s jurisdiction, we’d be happy to meet with the province, and the union and any other parties to this inquiry to assist in redrafting the terms so this important work can continue,” said Nepinak.
Sinclair died during a period of devolution of in which Aboriginal child welfare agencies were taking over responsibility for Aboriginal children in care. The movement toward devolution began in the mid 1980’s with the Kimmelman report, which recommended the creation of Aboriginal child welfare agencies, and regained ground with the 1991 Aboriginal Justice Inquiry. In 2003, legislation was passed creating four child welfare authorities for northern and southern First Nations, Métis, and all other children. That process is still underway today. “We’re concerned that since this concept first began to be implemented in Manitoba, our communities have slowly lost control, direction, and jurisdiction over what’s happening to our children,” said Nepinak.
The chiefs have requested an urgent meeting, hoping to establish a dialogue with Family Services Minister Jennifer Walsh to conduct a systematic review of the child welfare system in the province and discuss complications with the ongoing process of devolution. “We are specifically asking for a meeting with the new Child and Family Services minister to bring these issues to the forefront with respect to the broader question of devolution and the systemic and fundamental problems that are arising very consistently with our [child welfare] authorities,” said Nepinak. “Our children are being commodified as items in exchange for jobs and funding. We need to address this issue.”