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After winning nine-year legal battle, children on reserve still wait for essential services

Alanis Obomsawin's powerful documentary, We Can't Make the Same Mistake Twice, debuted at the Toronto International Film Festival in September.  The film chronicles the nine-year legal battle initiated by the First Nations Child and Family Caring Society of Canada (FNCFCS) and the Assembly of First Nations (AFN) against the Harper government.

In 2007, the FNCFCS and the AFN filed a complaint against Indian Affairs and Northern Development Canada (INAC) based on Section 5 of the Canadian Human Rights Act. The complaint accused the federal government of knowingly underfunding family and child support services on First Nations reserves creating inequalities based solely on the children’s origins. 

Children living on reserve had to be apprehended and placed in foster care in order to qualify for services that were readily available to all other children across Canada. This policy is the reason that Indigenous children are six-to-eight times more likely to be in foster care, in predominantly non-Native homes, than other Canadian children. It's also responsible for the 71.5 per cent increase in First Nations children entering care from 1995 to 2001.

During the course of the film, it became evident that the system of service delivery on reserve was racially biased and purposely designed to fail. The inherently flawed formula used by the government delivered funding based on the size of the child and youth population served, rather than on the need within that community. The greatest impact is felt by small communities, many of whom have a disproportionate need.

During the nine years the case was argued, the federal government made multiple attempts to have the complaint dismissed.  The Harper government withheld over 90,000 key documents.  The government also investigated Dr. Cindy Blackstock, Executive Director of the FNCFCS and chief witness for the applicants.

Eventually, the tribunal heard 72 days of testimony which ended October 24, 2015. On January 26, 2016, the Canadian Human Rights Tribunal ruled the Canadian government discriminates against First Nations children by inequitably funding child welfare services and by failing to fully implement Jordan's Principle.

Jordan's Principle was a private members motion that unanimously passed in the House of Commons on December 12, 2007. Jordan's Principle established that where intergovernmental disputes over payment for services exist, the level of government that has first contact assumes all costs of child services and continues to pay them until a settlement regarding jurisdictional disputes is reached. Jordan's Principle applies exclusively to First Nation children on reserve.

This is the point where Obomsawin's documentary ends. But, despite the FNCFCS winning a landmark case that would improve the lives of 163,000 First Nations children, Obomsawin sagely observed in our phone conversation, "You win, but what do you win?" Today, despite the ruling of the tribunal, the discrimination continues for on-reserve children under the current government's watch.

In March 2016, the federal government released an overview of funding for First Nations Child and Family Services (FNCFS) as outlined in the 2016 federal budget. According to the FNCFCS site, $634.8 million has been allocated over five years for the FNCFS Program. 

However, the $71 million allocated for 2016/17 falls far short of what INAC said was required back in 2012. Federal government officials testifying before the Canadian Human Rights Tribunal confirmed that federal government internal documents dated 2012 indicate that the funding shortfall for First Nations Child and Family Services was 108.13 million per annum plus three per cent inflation.

The $71 million doesn't even come close to the $216 million the FNCFCS had hoped for in immediate relief pending long-term program reform that would more adequately address the needs of on reserve children.

On April 26, 2016, the tribunal made further orders regarding immediate relief. The tribunal found that implementing Jordan's Principle over the course of 12 months put the federal government in breach of fulfilling the tribunal's January 26, 2016 order to "immediately implement the full meaning and scope of Jordan's Principle." The Tribunal ordered the federal government to immediately apply Jordan's Principle to all jurisdictional disputes.

On May 10, 2016 the Government of Canada responded to the tribunal's order to immediately implement the full meaning and scope of Jordan's Principle. As described on the Indigenous and Northern Affairs Canada website, the government expanded its application of Jordan's Principle to:

  • Eliminate the requirement that the First Nations child on reserve must have multiple disabilities that require multiple service providers.
  • Apply to all jurisdictional disputes including those between federal government departments.
  • Ensure appropriate services for any Jordan's principle case not be delayed by case conferencing or policy review.

On July 6, 2016, the federal government submitted another compliance report to the Canadian Human Rights Tribunal in which government committed to invest up to $382 million to implement a broader application of Jordan's Principle. However, the principle's application continues to be limited to children living on reserve with a disability or short-term condition.

Clarification is needed to understand:

  • What the funding announcement really means for children.
  • Who the federal government is applying it to.
  • How this proposed approach differs from the discriminatory approach that has been used up to now.

The Canadian Human Rights Tribunal issued a second Compliance Order against the Government of Canada on the First Nations child welfare case on September 15, 2016.

The FNCFCS has since requested the commission register the original January 2016 ruling with the Federal Court as a means of initiating filing contempt proceedings against the federal government. The Canadian Human Rights Commission would prefer to see the dispute settled between the parties rather than in court in the hopes that children on reserve will have access to the services they deserve in a timely manner.

So, nine years later with definitive decision including directives, and a new government in power the lag in implementing the tribunal's recommendations continues to prevent children on reserve from receiving the services that children across Canada take for granted.

There is also an underlying fear within the FNCFCS that the federal government may eventually appeal the tribunal's findings. This is an accurate conclusion to draw since historically defendants often purposely drag out fulfilling court ordered obligations while secretly planning their next evasive step. 

It's important to remember that we are talking about the lives of children. And, these children are unique because they bring with them a history of colonization and genocide. As a nation we have the opportunity, and more importantly the obligation, to put an end to the discrimination that keeps on reserve children and youth from receiving the services available to all other children all across Canada.

Obomsawin's documentary, We Can’t Make the Same Mistake Twice, will be screened Saturday, October 22 at 10 a.m. at the Toronto International Film Festival Bell Lightbox, 350 King St W, Toronto.

For more information about the First Nations Child and Family Caring Society of Canada and to join their campaigns go to:  https://fncaringsociety.com/campaign/signup 

This article originally appeared on Leaders and Legacies.

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