The science of sugar + Canada’s discriminatory First Nations child welfare system – The Conversation Weekly podcast transcript

The science of sugar + Canada’s discriminatory First Nations child welfare system – The Conversation Weekly podcast transcript

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This is a transcript of The Conversation Weekly podcast episode The science of sugar: why we’re hardwired to love it and what eating too much does to your brain, published on January 20, 2022.

NOTE: Transcripts may contain errors. Please check the corresponding audio before quoting in print.

Gemma: Hello, and welcome to The Conversation Weekly.

Dan: This week, we are talking about the science of sugar. What makes it so sweet, and also addictive, and what does eating too much of it do to the brain?

Stephen Wooding: We have this deep-seated attraction to sugar that throughout evolutionary history, was a really important advantage.

Lina Begdache: Anything that may be impacting the function of the brain may be affected by long-term sugar intake.

Gemma: And Canada agreed in principle to pay CAN$40bn dollars over discrimation against First Nations children by the country’s child welfare system. We talk to a legal expert about the long fight for justice.

Anne Levesque: It’s a whole other generation of children who’re being denied the equal chance to grow up in their families.

Gemma: I’m Gemma Ware in London

Dan: And I’m Dan Merino in San Francisco. You are listening to The Conversation Weekly, the world explained by experts.

Dan: At The Conversation we have a series of stories we run called Curious Kids. These are when kids from around the world send us their fantastic questions. One question we got a little while back was from Yvanna, who’s aged nine.

Gemma: Yvanna asked: “How much candy do Americans eat in a whole year?

Dan: Candy in America is a catch-all word for all sorts of sweet things: lollipops, jelly beans that kind of stuff. And so we put this question to Rahel Mathews, a nutritionist at Mississippi State University.

Gemma: The answer: the average American consumes an estimated eight pounds of candy (that’s 3.7kg) every year. And children eat even more than that.

Dan: And the reason is of course, all of that delicious sugar. So this week we are doing a deep dive into the science of sweet things.

Gemma: We’ll hear from a chemist about the differences between sugar and other sweeteners, and from a nutritionist who studies how eating too much sugar can damage our brains.

Dan: But first, we’re going to look at what about our own biology makes sugar just taste so irresistible.

Stephen Wooding: The key to our love of sugar relates to it’s being a good source of nutrition.

Dan: This is Stephen Wooding. He’s an assistant professor of anthropology and heritage studies at the University of California, Merced in the US. He studies the evolution of how animals perceive taste. We started the discussion with him explaining the clear evolutionary reason for why humans love sugar.

Stephen: It contains calories, the energy we need to live and be active. But you can’t get calories just anywhere. You can’t get them from eating wood, for instance, or dirt, you need to seek them out. And in the course of life’s evolution, different kinds of organism have come up with different solutions for doing this. In the case of vertebrates, the solution is taste perception.

Dan: OK, so tell me why is it important to be effective when we’re eating instead of eating rocks and breaking teeth and wasting time and energy?

Stephen: Well, imagine you’re one of our earliest ancestors. This would make you a small creature, looking a bit like a combination of a squirrel and a raccoon living about 65 million years ago. Now imagine you’re out foraging and you find a tree full of fruits. You can’t eat all of them. How do you choose the best ones to eat so that you’re most efficient and getting these calories you need. Well, you can look and you can gauge the appearance of the fruits and you can smell them and you can also taste them. And taste is a big help to deciding what to eat, because it directly measures nutrient content from a small sampling before you even eat the fruit.

So, sweetness can help you decide or help you recognise which of the fruits contain the most accessible energy. You can eat those and throw the others away. So the benefit for being able to target your attention is that there’s an energy cost to foraging and because we need to use as much energy as we can for, say, our body’s growth and reproduction. It’s important for us to be as efficient as possible.

Dan: OK, so we’ve got a benefit for eating energy-dense food, presumably something sweet, got a lot of sugar. How does this pass on through the evolutionary timeline to produce humans who love ice cream and candy and all sorts of other things.

Stephen: Ah, yes. Now, you can imagine it’s potentially true for organisms to taste something, then decide rationally if it’s a good idea or not to do some kind of calculation in their head, but natural selection has taken a shortcut on this. Natural selection can shape behaviours, just like it shapes physical appearance. And in the case of sweetness, primates evolved to be attracted to it. They don’t need to do calculations in their head about whether they should eat something – they just know it.

Read more: A taste for sweet – an anthropologist explains the evolutionary origins of why you're programmed to love sugar

Dan: OK, this is the idea of, “I like sugar.” Is that what you’re saying evolution kind of put into my brain?

Stephen: Exactly. Evolution can alter what you like and what you don’t like. One of the easiest ways to see it is to look at the behaviour of babies. New newborn babies, they haven’t learned from us what we like to eat and they don’t have much experience with it. But if you give newborns sugar, you can tell they like it. They want more of it. If you look at videos, it’s evident. This is emphasised by the opposite as well, which is that in nature, many bitter things are toxic and bitter taste is something we dislike and we reject foods that are bitter. And if you try this in babies, they reject bitter as well. So they’re not learned behaviours or responses, they’re embedded within us.

Dan: So, anytime we start talking about evolution, nature-nurture, right. This always comes up to be part of the discussion, right? So is there a single gene that makes people like sugar, or is it more of a suite of genes and a combination of factors?

Stephen: Well, in the case of taste, nurture is very important. We learn from our families, our parents in particular, what’s good to eat and can eventually come to like it. But there is an embedded component as well. And in the case of sweet taste, we have genes within us. So within our DNA are genes that control our ability to perceive sugars, to perceive sweet taste. The main gene responsible for it is called TAS1R. TAS as in taste.

And TAS1R is a gene – so stretch of DNA – that produces a protein. That’s also called TAS1R and the TAS1R protein is found in our taste buds and it detects sugars in our mouths as they pass by in foods that we eat. So these receptors, the TAS1R, is required for us to perceive sweetness. And there’s not much difference between the genes controlling sweet tastes and the genes controlling bitter tastes. They’re actually very closely related genetically, but we have profoundly different responses to them. So natural selection has shaped these responses.

One way to see this is to consider the situation of carnivores. A fascinating observation – made, I think it was a few years ago in the laboratory of Dr Robert Margolskee – was that cats, they don’t seem to have the gene that enables them to perceive sugars. So cats don’t taste sweet. And further research revealed that it’s not just cats, many carnivores no longer have the ability to perceive sweetness. They’re either missing the TAS1R gene or they have a broken down form of it. So they can’t be tasting sweet anymore.

Dan: Do we know why that is?

Stephen: If the calories you’re garnering from detecting sweet substances stop being such an advantage, then your preferences for it might go away. If you’re not tasting it because it’s not in your diet, then your preference would eventually go away. And this is true for the genes as well. The genes gradually decay. We can actually see these genes within these carnivores and when a gene is broken down like that, the technical term is it’s a pseudo gene. It’s a little bit like when you see an abandoned car, it’s still there, but it’s not functional.

Dan: The reason carnivores are losing the ability to taste sweet is because they don’t need the ability to taste sweet. Right?

Steve: Exactly. They’re eating flesh, which doesn’t have much sugar in it. A lot of people are interested to hear that sea lions don’t taste sweet anymore. And some whales don’t.

Dan: Does evolution tend to act particularly fast on taste and sensory things like this, because eating the right food has got to be very relevant to whether you survive or not out in the world?

Steve: Yes. And you’ve brought up a special interest in my own research. An excellent example of this is humans. Humans today are found all over the world, but that wasn’t always the case. As recently as about 75,000 years ago, humans really only lived in Africa, maybe parts of Europe. Then around that time, human populations began growing very rapidly and dispersing, and this brought humans into many new environments and now humans inhabit almost every environment on earth. They live up in the Himalayas and they live in the Arctic and they live in the deserts of Egypt. And they live in the jungles of south America.

There are many, many different environments that people needed to adapt to. Now, the evolution of the sweet taste receptor and adaptation in humans isn’t well-documented, but it is well understood in related receptors, which is the bitter receptors. And the bitter receptors show signs of natural selection in humans that appear to have happened as they dispersed around the world.

Dan: Are you saying something might taste different to me than it tastes to somebody from say east Asia?

Steve: Absolutely. And some cases are well-documented again. For instance, there are some populations in west Africa that appear to have lost their ability to taste particular substances and the reasons for it aren’t clear, but they’re different from other populations. There’s also a great deal of difference from person to person. And if you can compare you and I, we would find that we’re almost certainly different in our taste sensitivity. The question is how much.

Dan: So sugar, it tastes delicious. It’s really easy to want to eat more and more sugar. Can we just blame this all on our genes?

Steve: Well, I think we’re victims of our own success. For hundreds of thousands of years, sugar was relatively rare in our diets. But, when sugar was domesticated, suddenly humans had access to essentially unlimited supplies of sugar. So human success in domestication brought us access to as much sugar as we want. And now we’ve kind of produced an environment we’re not well adapted to. We have this really deep-seated attraction to sugar that throughout evolutionary history was a really important advantage. But when there’s so much there, then the problems begin. Our cravings for things like sugar are working properly but they’re ill-suited, they’re ancient relics. Our cravings belong in a museum.

Dan: Well Steve, thank you so much for speaking with us today.

Stephen: Thank you so much for having me.

Gemma: I’m sure a lot of people wish they could put their cravings for sugar in a museum.

Dan: That would be super nice. And just as Stephen explained different people from different areas can have different taste preferences, it’s possible we could as a species evolve away from our love of sugar. But he also said that it would take a really, really long time if it were to ever happen.

Gemma: But in the meantime, there are other things you can eat that taste sweet, that aren’t sugar.

Dan: Absolutely – there’s a lot of different kinds of sweeteners out there. To find out more about the chemistry behind them, I called up Kristine Nolin, an associate professor of chemistry at the University of Richmond in Virginia in the US.

Kristine Noline: I’m married to a chef, so the combination of my background in chemistry and learning from being adjacent to a chef all the time has brought me to really enjoying talking about and learning about food chemistry.

Dan: So as a chemist and someone who is passionate about food, can you just explain how do taste buds work? Because it’s not exactly the simple as it might seem.

Kristine: It’s not. And you know, what we were taught when we were little was that there was this map and that you tasted different flavours in different areas of the tongue. You would get salt in one spot and sweet in another and that’s actually absolutely false. All of the taste buds in your mouth on your tongue are able to taste every flavour. So inside of your taste buds, there’s lots of cells called receptor cells, and their job is to grab a hold of the food molecules and start a transmission to your brain about what the flavour is that corresponds with that type of molecule.

Now, the receptors are what we use to taste bitter, umami, which is savoury, and sweet. And there is a preference for the sweet binding a molecule called glucose.

Dan: Glucose is sugar in the most basic form, right?

Kristine: It is one of the many, many, many sugars that we encounter. It is often thought of as the sugar and the only sugar, but that is untrue once again. One of those myths. When we talk about sugar in common every day, when we’re talking about table sugar, that’s actually sucrose, which contains glucose, but glucose isn’t by itself, it has a partner with it and that’s another sugar molecule and that sugar molecule is fructose. Fructose is, fruit sugars. So together, those two joined will make our table sugar, which is sucrose.

Dan: If fruit does comes from fruit, where does glucose come from?

Kristine: So glucose is going to also come from fruit and it will also come mostly from starch. Your body will break down starch into its most basic components. And those most basic components are glucose. So you can think as glucose, binds a whole bunch together, almost like makes a chain – and that’s what starch is.

Dan: OK, so we’ve got glucose, we’ve got fructose. You put the two together, you get sucrose. What else was out there on the natural world of sugars?

Kristine: Another one that’s really important is galactose. So galactose is part, but not all, of the milk sugar known as lactose. One of the main purposes of galactose and why we need milk as children and as infants is because it’s used with brain development. So when we’re young, we’re fed milk and that enables us to break the milk sugar lactose into galactose and glucose. And the galactose helps us develop our brains, and our glucose gives us energy.

Read more: What's the difference between sugar, other natural sweeteners and artificial sweeteners? A food chemist explains sweet science

Dan: Got it, so those are the natural sugars. But now I’m wondering, what actually happens when I eat some food, or drink a drink, with natural sugars?

Kristine: When you ingest sugars or anything that breaks down to give you glucose, glucose then enters a very complex, multiple step pathway where it’s going through the body. And it goes from one molecule to another molecule, and then your body makes it into another one. So to make a long story short, molecule comes into the body factory, if you want to think of it that way, gets transformed in a number of steps, and at the other end, we’re supplied with energy.

Dan: All right. So those are the natural sugars there. But there’s a ton of natural sweeteners that aren’t necessarily sugar. Things like stevia and there are many others. Can you explain what those are and where they come from in the natural world?

Kristine: Yeah. Some of the most common are, like you said, stevia, monkfruit is another one. They are derived from plants. So the difference between the molecules from these plants that tastes sweet to us is that they’re not just simple sugars.

They’re simple sugars that are attached to a larger molecule. So because they’re kind of attached to this larger molecule, they don’t have the ability to go into that body factory and break down. So you can taste it because it will attach to the receptors inside your taste buds. But they will not go into that metabolism breaking down for energy cycle.

Dan: That seems to me so interesting that some natural sugars can get broken down but other sweeteners can’t. Are we still discovering new sweeteners out there in the world?

Kristine: Every day, every day. Yeah. Both natural and unnatural. It’s a huge industry. So many people are counting those calories, so if we can get that sweetener and keep the calories away, people are happy and they buy things.

Dan: So what is this process look like of actually going to discover or find some natural sweetener out in the world?

Kristine: You know, sometimes there may be a population in a specific area that uses a plant to sweeten their food or to flavour it in any way. And then what chemists do is they take samples of that plant and they break it down and try to figure out what the molecules are that are inside of that plant that tastes sweet. But there are other molecules that tastes sweet, that don’t even look like sugars whatsoever. And, we see that a lot with what we would call artificial sweeteners.

Dan: All right, so let’s go there. What is an artificial sweetener?

Kristine: So this would be a molecule that is completely manufactured or the technical term would be synthesised in a laboratory setting. So this is not something that we would get from a plant or an animal or other source. So probably the most common that people know is saccharin.

Dan: OK, so we’ve got all these different artificial sweeteners. What happens when we swallow them, and they go into our body?

Kristine: Typically what’s happening is that it will go through our digestive system, end up being excreted from our body, and unused, sometimes it will break down and we could get smaller molecules out of these. But generally they’re excreted. But each one has its own unique way of being handled by the body but they’re constantly being studied as we learn more about what the body does and how the body reacts to, unnatural molecules being introduced to it.

Dan: Awesome Kristine. Thank you so much.

Kristine: Thanks so much for having me.

Dan: OK, so we’ve heard about what makes things taste sweet, and why we’re hardwired to love sugary stuff so very much.

Gemma: But this sugar addiction is also causing humanity a whole lot of problems today. Eating too much sugar is a major cause of obesity, diabetes and many other health issues.

Dan: And it turns out, eating a lot of sugar can have long-term effects on our brain too. To find out more I called up Lina Begdache, an assistant professor at Binghamton University in the US. Lina is a nutritionist and biologist with a focus on neuroscience. Her research looks at what we eat affects the health of our brains.

Dan: So, Lina, you study the brain and nutrition, and we just kind of wanted to ask a very simple question here: what’s happening in the brain when somebody eats sugar?

Lina: So we have two types of brain cells. We have the neurons which fire and communicate together, and we have the housekeeping cells which are glial cells. They both use glucose as a source of energy. Anytime we need to fire between two neurons, we need energy and glucose is the main energy source. So when you eat glucose or you eat sugar, you get this boost of energy and also a feel good, because having this extra sugar in the blood is going to raise what’s called insulin. Insulin is a hormone that helps with regulating blood sugar, but insulin helps with the transport of the precursor for serotonin. Serotonin is a good feel chemical. You feel good about it.

Dan: And, do we have a storage of glucose in the brain or does it come from the blood every time you need a little burst?

Lina: Actually the research has shown that there may be some small parts of glucose stored, but mostly it comes from the blood.

Dan: So we’ve got blood is sort of the gasoline, if you will. And you’ve got the glucose in the blood and then it goes to our brain – we do wonderful brain stuff, like think and sing and eat and all sorts of fun stuff. So, that’s how everything’s working normally. But tell me what happens if I eat a big dose of sugar. What happens to my brain then?

Lina: So when you consume glucose, the increase in blood sugar is going to be translated into having higher activity between brain cells, because now there’s extra fuel in the brain that’s going to fuel the firing between neurons. So the brain becomes in an overdrive or, it could be hyperactivated.

Dan: I’m picturing like a kid, you give a kid a candy bar and they start running around all crazy. Is that this effect?

Lina: In a sense, yes. So there’s a higher activity in the brain that could be translated into different behaviours and higher emotions.

Dan: So what happens if you eat like way too much sugar? What is your brain doing? Is it different than a kid or is it the same, do you just have better self-control?

Lina: Kids have a higher need for glucose in the brain because their brain is growing they tend to have higher activity in the brain than adults. So this is why they’re more sensitive to higher sugar. Another thing is that with children, they don’t have all the brain mature yet. So, brain maturity continues until mid-20s. So what’s going to mature at the end is the prefrontal cortex. This is the part of the brain that is responsible for rational thoughts for control of impulsivity. So children don’t have this yet matured, and when they have this overdrive happening, they can’t control their emotions. So there’s an inhibitory system that works to control emotion, but research has shown that this is less functional when even adults consume high level of sugar.

Read more: How does excess sugar affect the developing brain throughout childhood and adolescence? A neuroscientist who studies nutrition explains

Dan: That’s kind of the short-term stuff, but I gotta imagine there’s a lot of effects of eating sugar on the brain long-term, the first is getting addicted to sugar. So can you explain how people get addicted to sugar and what that addiction looks like in the brain?

Lina: So the fact that you feel the pleasure after eating sugar, it means that the reward system has been activated and the reward system gives pleasure by increasing the release of dopamine. It’s a neurotransmitter that is also linked to addiction to drugs. So over time, they built tolerance. So it means that people who, when they eat this amount of sugar, they don’t feel the pleasure anymore. So what they need now is to increase the level of sugar intake to feel that pleasure and it becomes an addictive process.

Dan: So if you’ve got the dopamine tolerance building, is there a similar buildup of tolerance in the energy needs of the brain? Like, is the brain gonna be super active in someone who’s sugar addicted if they eat a bunch of sugar or is it gonna be less active per gram of sugar?

Lina: So what happens is when you have a lot of sugar sitting around, the sugar is sticky, right? So it starts sticking to structures in the brain. And when you have sticky sugar, it’s going to stick to other flowing components. So eventually it’s going to start blocking blood flow. This is what happens, like over the years, we see that adults with a high sugar intake they tend to have lower cognitive functions, lower memory. It’s because this will start the process of what’s called glycation and this eventually lead to inflammation. So inflammation is a reason why people start losing brain cells as well. And neuro-degeneration, memory loss, cognitive function, decline – they’re all linked to inflammation in the brain.

Dan: What else is going on in someone who’s got a really sugar-fied brain?

Lina: Anything that may be impacting the function of the brain could be affected with long-term sugar intake. There’s also evidence that even young children or teenagers, when they consume high levels of sugar in their diet, they end up with cognitive function decline as adults.

Dan: How might this be happening?

Lina: It could be a combination of factors, glycation; it could be the change in brain chemistry; it could be inflammation. And it could be, it could be, linked to a decrease or impaired complete maturity of the prefrontal cortex because we’re changing, the function of the brain. It’s known that people who do drugs, like even young children when they do drugs, they change their brain chemistry, they change how the neurotransmission happens. The prefrontal cortex maturity requires a spectrum of brain chemicals with a certain balance. When you’re changing the brain chemistry and the balance between the major neurotransmitters involved in brain maturity, it may be impacting the optimal maturity of the prefrontal cortex.

Dan: And does this have any effect on learning?

Lina: Yes. There is evidence that it impacts learning. It impacts how these children or adults, when they become adults, how they regulate their emotions, their impulsivity and so forth. There’s also evidence that the hippocampus is also, impacted. So this is where we generate memory. This is where learning happens. So people tend to lose more cells there. So as human beings, we have the ability to produce new cells from stem cells in the brain. This is a process called neurogenesis. There’s evidence that with high sugar intake, the hippocampus cannot perform this task so people lose brain cells and they cannot replenish them.

Dan: It seems like there’s obviously a lot still to be learned about how sugar works in the brain and its role. What are for you some of the most exciting areas of research going on right now?

Lina: For a long time it wasn’t clear or known that your diet can impact your brain. It’s only when improvement in technology made things possible to see how the brain works and how the diet is impacting the brain. Now it’s like a new field of research that people are learning about how their diet may be impacting their mental health, their cognitive functions and so forth.

Dan: And what are some of the biggest questions that people are looking at right now?

Lina: So when it started, people were only focusing on like one food. Like if you eat this food, this is how it’s going to impact your brain. Now the research is showing it’s not really the food itself, it’s just the pattern of your diet, and that’s actually my research interest in gender differences, in age group differences. Are we talking about premature brain or post-maturity? Because the premature brain would require certain ingredients that the post-mature brain does not. So there are different functions of the brain based on the maturity of the brain. So this is basically my research looking at these differences.

Dan: Well Lina, thank you so much it’s been a pleasure having you on the show.

Lina: Thank you so much for having me. It was a pleasure of talking about my research and the science in general.

Dan: All the academics we’ve spoken to today about sugar have contributed articles as part a series examining sugar’s effects on human health and its history in the US. In addition to the science of sugar, head over to The Conversation website if you want to learn about the history of Chinese workers in the US sugarcane industry. We’ve also got a story about why ethical US consumers struggled to pressure the sugar industry to abandon slavery. We’ll put a link to the whole series in the show notes.

Gemma: Now, for our next story we’re heading to Canada to hear about a long legal battle over the country’s discrimination against First Nations children in the child welfare system.

Dan: Late last year the Canadian government agreed in principle to pay CAN$US40bn – just over US$30bn – in compensation for those affected and to fund structural reform of the child welfare system.

Gemma: News of the deal came months after hundreds of children’s bodies were found on the site of former Indian residential schools across the country.

Gemma: To understand the background to the child welfare legal battle, and how it fits into Canada’s longer history of discrimination against Indigenous children, I called up a legal expert who’s been involved in the case.

Anne Levesque: My name is Anne Levesque. I’m an assistant professor at the faculty of law at the University of Ottawa. Before I was a law professor, I worked as a full-time lawyer and in 2009, I started working on this human rights complaint that was filed in 2007. It was a human rights complaint, alleging discrimination against First Nations children on the basis of their race. And the complaint alleged that Canada was inequitably funding First Nations child and family services, and that that was contrary to the Canadian Human Rights Act.

Gemma: Can you tell us a bit about the background to the case and why it was brought?

Anne: The complaint was filed really as a last resort. The Caring Society and the Assembly of First Nations had been talking to the government and studying and documenting the underfunding of child welfare services for First Nations children.

What they were finding is that the government of Canada was underfunding child welfare services for First Nations children and their families compared to the funding provided to non-First Nations children, even though the need was much greater.

They were also documenting the consequences of this underfunding, that children were being removed at really alarming rates. There were, at the time the complaint was filed, three times more First Nations children in care than there were at any time in the residential school system. So, what they were seeing was a whole other generation of children being removed from their families and communities and losing their culture and language.

And the government knew about this. Solutions were proposed by experts, but Canada was not acting. So really as a last resort, the Caring Society and the Assembly of First Nations filed this complaint, hoping that it would be an answer to force the government to stop the discrimination.

Gemma: Canada has a long history of colonisation and discrimination against Indigenous peoples, like through its Indian residential school system, where Indigenous children were forcibly put into residential schools. And the last one of those schools was actually only closed in 1996. How has the child welfare system in this case contributed to that?

Anne: Well, one of our witnesses actually in the litigation is Marie Wilson. She was one of the commissioners in the Truth and Reconciliation Commission. And what she said was, before being appointed, she really was worried about hearing the testimony of their survivors, of Indian residential schools. She was worried about hearing, you know, about the cases of sexual and physical abuse. The conditions were atrocious in Indian residential schools. They were schools that had electric chairs where children were being tortured.

But what she said was, without exception, every survivor that spoke about their experience as a child in a residential school, they all said that the most painful part of the experience was being taken away from their family. And they shared their stories with the commission because they hoped that future generations of First Nations children would not experience the same discrimination that they did. And yeah, the evidence is that the harm caused by residential schools is similar to the harm caused by the child welfare system. It’s a whole other generation of children who’re being denied the chance to grow up in their families.

Gemma: So let’s go back to the case. So you got involved in 2009, but it took a few years for it to be resolved. What happened? Talk us through what happened?

Anne: Shortly after I started working on the file, a new member of the Canadian Human Rights Tribunal that was appointed by the Harper government, which was a Conservative government at the time, argued that the case was so frivolous that it had no chance of success and that it should not even go to a hearing. But the Caring Society and the Assembly of First Nations, along with the Canadian Human Rights Commission sought a judicial review and that decision was deemed to be unreasonable. So the hearing started a few years later after being delayed in 2014.

Gemma: So wow, a lot of legal hurdles to get through even before it was heard. What happened? What did the tribunal actually find?

Anne: Yeah, so the tribunal agreed with all of the allegations of discrimination made. They found that the government was underfunding child welfare services compared to the services provided by provinces to non-First Nations children. So, the tribunal found that Canada’s funding formula not only did not support families, but also actually encouraged kids to be taken away from their family. So it ordered immediately the discrimination to stop in a really historic decision in 2016. And it also found that Canada was violating Jordan’s principle.

Gemma: What is Jordan’s Principle?

Anne: Jordan’s Principle is a legal rule that was made in honour of Jordan River Anderson. Jordan was a small boy from Norway House in northern Manitoba who was born in Winnipeg. He was born outside of his community because his mum had a complex pregnancy and needed specific medical attention. And when he was born, he had complex disabilities. His doctor said he had to stay in the hospital to get the care he needed.

But when he was two years old, his doctors cleared him to go home. They said you just need some assisted living services to support you in this transition. These are services that would have been available to any Canadian wanting to go home after medical care. But because he was a First Nations boy, the province of Manitoba and the government of Canada couldn’t agree on who should pay for the services he needed to return home.

So instead of letting them return home, pay for the services and, you know, agree on it later, they said that he should stay in the hospital while the bureaucrats, you know, had meeting after meeting, after meeting to decide who should pay for the services. And while the bureaucrats met, Jordan stayed in the hospital. And Jordan passed away in 2005, never having been home in his community while the bureaucrats were still fighting over who should pay for his services.

Gemma: Why was there a debate about who should pay for it?

Anne: Usually in Canada services like education, social assistance, medical services in the home – those services are usually paid for and provided by the province. But for First Nations children, it’s a bit complicated. There’s been a history and that’s a manifestation of colonialism, that the provinces say that they’re not eligible for provincial services and the federal government doesn’t want to pay either.

So they’re kind of stuck in this jurisdictional limbo for basic services that most Canadians take for granted. We don’t even think twice about who’s going to pay to send my girl to school, who’s going to pay for their health services. We just send their kids to school and the province picks up the tabs.

But for First Nations kids that literally access to every single government service is a huge jurisdictional quagmire. So the tribunal was really compelled and found that what Jordan had experienced was racial discrimination. And what it said is that a solution to this discrimination is Jordan’s Principle. So that means that when a First Nations child wants access to a service, they should just get it – just like my daughters do. And then the governments can decide, you know, have their meetings between them and decide, without delaying the service, who should pick up the tab. But in the meantime, while they’re having those meetings, the child should not wait.

Gemma: Jordan’s Principle was established soon after Jordan’s death in 2005 – but then in 2016, in the case that you worked on, the tribunal rule that the Canadian government was still violating it. What happened after that ruling? How did the government react?

Anne: 2016 was a really interesting time. The liberal government, Justin Trudeau at the helm, our prime minister, a new prime minister, had just been elected on a platform of reconciliation. Justin Trudeau repeated consistently that there was no relationship more important for the government of Canada than its relationship with Indigenous people. So we were hopeful. And then when we got the budget in April, what we saw that was that there had been no changes at all, actually in the funding formula. So we asked for more information about how these figures had been calculated and what we found out was that the government actually did absolutely nothing to respond to the decision. So publicly they were saying that they embraced the decision, they agreed with it, but what they were doing in practice was completely ignoring it.

Gemma: OK, so when, when this new liberal government came in and it was clear that they hadn’t really taken on board that ruling by the tribunal, then what happened?

Anne: I mean, it was devastating. So what we did is we started documenting what Canada was not doing to comply. And we went back to the tribunal, filing non-compliance motions, and we essentially got affidavits from people in the communities who were saying that the decision had had no impact, that the government was continuing to deny funding requests under Jordan’s Principle.

And, we asked for really specific binding orders from the tribunal to really spell out what needed to be done to comply with the human rights obligations under the Canadian Human Rights Act. So the tribunal heard this evidence and made really specific findings, ordering Canada to implement Jordan’s Principle fully, and also ordering it to work with communities to fund services.

Gemma: What happened in the wake of that then, we’re talking today five years after that?

Anne: Since that time there’s been an over a million services provided to First Nations children under Jordan’s Principle. And that’s been a positive development. There’s been also, as an interim solution, the tribunal said until you can come up with a funding formula that we are convinced does not incentivise the removal of children in care, and that really takes into account their unique needs, you will fund what the communities tell you they need.

Gemma: So alongside all this happening, there was also a class action that was launched. Can you talk us through what happened there?

Anne: So under the Canadian Human Rights Act, once there is a finding of discrimination, a tribunal member has the jurisdiction to compensate the victims for the discrimination they have experienced. The maximum you can obtain for that ahead of damage is CAN$20,000. So we asked for that compensation. When discrimination is found to be wilful and reckless, that someone is intentionally breaching the Canadian Human Rights Act, you can also get an extra CAN$20,000 per victim. And the tribunal again agreed. It described the discrimination as being the worst-case scenario possible under the Canadian Human Rights Act.

Gemma: So they had this decision that each First Nations child who was affected was entitled to CAN$40,000 in compensation. How did that battle for that compensation to happen play out?

Anne: So Canada, upon receiving the decision of the Human Rights Tribunal sought judicial review, that was argued, this June before the Federal Court of Canada. Judicial review is like an appeal. And then the Federal Court of Canada, disagreed with Canada’s argument and examined the decision and agreed again with the Caring Society and the Assembly of First Nations that the Canadian Human Rights Tribunal decision was reasonable.

Gemma: At the end of December 2021, the Canadian government agreed in principle to pay $CAN40bn as part of two settlements in this case. Can you explain what these are?

Anne: So the government of Canada has put money on the table for two things. One is to compensate the victims of discrimination. And so there’s a CAN$20bn that’s been allocated for the compensation. And then in the next year, there needs to be discussions with the class action lawyers. The part that the Caring Society is involved in – here I’ll just do a shout out to my colleagues David Taylor and Sarah Clarke – who were really the ones leading the negotiations for the Caring Society, so those discussions involved long-term reform. Because the main purpose of human rights legislation is to eradicate discrimination and we will not need to compensate victims if there are no victims in the first place.

So in the next year we have certain issues of discussion that we need to agree upon to ensure that there’s accountability, to ensure that this discrimination does not happen again, and to ensure that the services that are being provided on the ground do not incentivise the removal of children and are culturally appropriate.

Gemma: So what’s just happened are agreements in principle, rather than the final deal. When do you think the government will start enacting real structural change and provide the compensation to those First Nations children and their families who’ve been affected?

Anne: The agreement in principles are non-binding. They’re agreements and commitments to talk and to agree on a compensation plan and agree on long-term reform. So this year will be important more than ever to have the public pressure. It’s what has gotten us the legal victories and the accountability so far is Canadians writing letters, tweeting about it, interviews like this one. This is what has kept the pressure on the government. And as we talk, nothing is binding yet and we’ve been disappointed before in the past. So this year will be important more than ever to keep up the pressure to make sure that the government is negotiating in good faith so we can really get real outcomes on the ground for First Nations kids. We hope that if the discussions go well, the changes could be in place as early as this summer and compensation as early as next year, but it will really all depend on the government.

Gemma: Well, we’ll be watching closely. So thank you for sharing those insights and your history of the case with us, we appreciate it.

Anne: Thank you so much for paying attention to this really important question.

Gemma: You can read a story Anne wrote about the case on The Conversation, we’ll put a link in the show notes.

Gemma: Elsewhere on The Conversation this week, we’ve been covering the massive underwater volcano eruption near Tonga. Here’s Veronika Meduna in New Zealand with a couple of good recommendations.

Veronika Meduna: Kia Ora, this is Veronika Meduna, science and health editor at The Conversation in New Zealand. I’d like to recommend two articles we’ve published this week on Saturday’s massive eruption of an undersea volcano in Tonga. Damage reports continue to come in from the worst-affected areas and the Tongan government has confirmed that some island are being evacuated because the tsunami destroyed all buildings.

I’d like to recommend an article I worked on with Shane Cronin, a volcanologist at the University of Auckland. When the Tongan volcano erupted, it created a pressure wave so strong it was measurable across the globe. Shane has studied the voclano’s activity patterns and the geological deposits from historic eruptions and he was able to explain how smaller eruptions, that happened during the past few decades along the edges of the volcano’s undersea crater, have built up to the massive explosion of the deeper caldera itself. Something that’s happened in the past, but only about every 1,000 years.

The tsunami waves have devastated entire villages. The volcano has covered everything in ash, but deep below the eruption also broke a submarine cable, cutting off Tonga’s communication networks and isolating the islands from the rest of the world. It’s an anxious time for Tongans living in New Zealand, Australia or elsewhere, desperately trying to contact their families.

The second article I’d like to recommend is by Dale Dominey-Howes, a disaster risk expert at the University of Sydney. He writes that more than 95% of global data transfer happens along fibre-optic cables that criss-cross the world’s oceans, often running close or directly over active volcanoes or earthquakes zones. Tonga is particularly vulnerable to this type of disruption because it’s only connected through one cable between its capital Nuku'alofa and Fiji. But Dale says the events in Tonga highlight just how fragile the global undersea cable network is.

Gemma: Veronika Meduna there in New Zealand.

Dan: That’s it for this week. Thanks to all the academics who’ve spoken to us for this episode, and thanks to the Conversation editors Haley Lewis, Maggie Villiger, Amanda Mascarelli, Scott White, Stephen Khan and to Alice Mason for our social media promotion.

Gemma: You can find us on Twitter @TC_Audio, on Instagram at theconversationdotcom or via email. And you can also sign up to The Conversation’s free daily email by clicking the link in the show notes.

Dan: If you’re enjoying The Conversation Weekly please leave a rating or review where podcast apps allow you to. If you listen to us on Spotify, they’ve just added the ability to rate podcasts on their app too, so do give it a try.

Gemma: The Conversation Weekly is co-produced by Mend Mariwany and me, Gemma Ware, with sound design by Eloise Stevens. Our theme music is by Neeta Sarl.

Dan: And I’m Dan Merino. Thanks for listening.

Kristine Nolin, Stephen Wooding and Lina Begdcahe do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

Anne Levesque is one of the pro bono lawyers representing the First Nations Child and Family Caring Society in its ongoing litigation against Canada before the Canadian Human Rights Tribunal. She also provided assistance to Sarah Clarke and David Taylor, the Caring Society's lawyers in the negotiations leading to the agreement.

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