Human Rights Tribunal rules that Ottawa has underfunded First Nations child welfare, services

Federal government vows to address issue

OTTAWA—The Canadian Human Rights Tribunal (CHRT) has brought down a decision that the federal government discriminates against First Nations children on reserves by failing to provide the same level of child welfare services received by people living off-reserve.

The finding stems from a 2007 complaint filed against the federal government by Cindy Blackstock, executive director of the First Nations and Family Caring Society and the Assembly of First Nations. On January 28 the CHRT brought down its decision, hailed as a complete victory by Ms. Blackstock, First Nations groups from coast to coast and human rights advocates across the globe.

“Why did we have to bring the Government of Canada to court to get them to treat First Nation children fairly? Little kids,” said Ms. Blackstock in comments to the media following the decision. “Why would it ever be okay to give a child less than other children?”

Many First Nations leaders focussed their comments on rectifying the historic (and ongoing) wrongs in the context of truth and reconciliation and expressed hopes that the new federal government will finally move on dealing with the inequity found in the CHRT decision.

AFN National Chief Perry Bellegarde says he hopes to see an indication of the government’s willingness to work on the issue in the upcoming federal budget. “We’ll be watching to ensure that that happens,” he said in comments to the media, adding that “all of Canada will be watching.”

“First Nation children have been trapped in a vicious cycle of underfunding, poverty, despair and dysfunction since the days of the residential school system,” said Assembly of First Nations Ontario Regional Chief Isadore Day in a press release following the decision. “Today’s decision is massive, probably the most important human rights decision regarding First Nations this decade and we think it will mark a turning point for Canada as a whole.”

“The federal government has avoided the truth for many years,” said Anishinabek Nation Grand Council Chief Patrick Madahbee. “Over 170 cases and millions and millions of dollars have been wasted fighting First Nations and getting beat every time. This is a great victory for our kids.”

Anishinabek Nation Deputy Grand Council Chief Glen Hare said that the Anishinabek Nation is hopeful that the federal government will work with First Nations and the Province of Ontario to ensure that First Nations children and families will be provided with enhanced prevention supports regardless of where they live. “The Anishinabek Nation will work with the province and the federal government to enact the Anishinabek Child Well-Being Law by April 1, 2017,” said Deputy Chief Hare, adding that “the Anishinabek Nation is on a path to exercise our inherent jurisdiction in child welfare.”

The Canadian Human Rights Commission also applauded the tribunal’s ruling in a released statement. “This historic decision could have a profound impact on how the government of Canada funds other on-reserve programs and services,” wrote Marie-Claude Landry, chief commissioner of the Human Rights Commission commenting on the tribunal’s decision.

For its part, the Trudeau government has also applauded the tribunal’s decision. Indigenous Affairs Minister Carolyn Bennett said that she agreed with the decision and made the commitment that her department would soon begin working with the Assembly of First Nations and other indigenous groups to come up with solutions. “My job is to go forward and fix these things,” said Minister Bennett.

But fixing these things will not come cheap. Minister Bennett noted that any fixes would require significantly more money, but she stopped short of saying how much.

“It’s difficult to put a price tag on not providing indigenous children with the opportunity to be able to succeed,” said Justice Minister Jody Wilson-Raybould in her comments on the issue.

The CHRT decision, running to over 80 pages, lays bare several years of technical challenges through which the federal government sought to have the tribunal set aside the human rights case, first arguing that the tribunal did not have jurisdiction and then stonewalling repeatedly on the release of documents sought by the appellants.

Those procedural convolutions included arguing that the federal government does not provide child welfare services, that it only pays for their provision. The federal government admitted that it pays for the delivery of child welfare services, and that it was responsible for “accountability” on how those funds were spent, but that this did not constitute providing a service. The tribunal disagreed.

The federal government lawyers also attempted to characterize the issue as one of labour relations, and therefore fell under provincial jurisdiction. Again, the tribunal disagreed, noting that the issue is one of human rights, not a labour issue.

Even before the final arguments were heard by the CHRT in October 2014, where 25 witnesses testified, the federal government had accumulated a whopping $5.3 million in legal fees.

“Never once were those motions brought because they felt it was in the best interests of the children,” indicted Ms. Blackstock. “It was always to protect the government.” In reading the litany of federal government motions and machinations before the tribunal, it is difficult if not impossible to argue against her characterization of the federal government’s approach to the issue.

In addition to Ms. Blackstock and her organization and the AFN as complainants, both the Chiefs of Ontario and Amnesty International were listed as “interested parties” in the tribunal case.