Child welfare funding on reserve now in hands of Human Rights Tribunal

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Photo: flickr/Brian Turner

Last week, the Canadian Human Rights Tribunal (CHRT) heard the final submissions of the parties involved in the First Nations child welfare case.

The complainants, the First Nations Child and Family Caring Society (FNCFCS); the Assembly of First Nations (AFN) and Canadian Human Rights Commission (CHRC), and the interveners; the Chiefs of Ontario (COO); and Amnesty International (Amnesty), allege that the respondent, the Federal government via Aboriginal Affairs and Northern Development Canada, (AANDC) is underfunding child welfare services on reserve, which constitutes discrimination under section 5 of the Canadian Human Rights Act (CHRA).

This case is the most important Indigenous children's rights case for three reasons:

1. The results of this case will directly impact First Nations children and their families.

2. This is the first time that the Federal government has been challenged on a current discriminatory practice rather than a past one such as residential schools.

3. If successful, this case could result in a watershed ruling that is used to challenge other Federal government funding programs.

The closing submissions mark the end of a battle that culminates just four months shy of eight years.

For six of those eight years, AANDC has tried to keep the Tribunal from hearing the case at all. Spending only a few minutes last week listening to the arguments put forward by the complainants and interveners, it becomes obvious that this case is about so much more than inequitable funding. It is about the historical legacy of government interference in the lives of Indigenous peoples; the intergenerational effects of harmful policies that have led to broken families and communities; the systemic barriers that prevent Indigenous peoples to reclaim their identities and languages; the removal of Indigenous ways of knowing and being; and the intergenerational effects of removing Indigenous children from their homes.

Over the five days of closing submissions, the complainants and interveners took the Tribunal members through a thorough review of the history of government policies relating to Indigenous peoples in Canada and the legal framework in which the complaint has been made.

The CHRC and FNCFCS made robust submissions outlining the early and ongoing impacts of Federal government policies that included residential schools, the sixties scoop and the development of the First Nations Child and Family Services program.

Both the CHRC and FNCFCS demonstrated that the program is funded by numerous federal funding formulas such as Directive 20-1, Enhanced Prevention Focus Approach and the three provincial agreements in Ontario, British Columbia and Alberta, and that each of them is problematic.

The complainants pointed to evidence showing that each of these funding formulas has been proven inequitable by research reports, independent reviews by the Auditor General and Public Accounts Committee, the international committee on the rights of the child and AANDC's internal evaluations, audits and program reviews.

The complainants completed their submissions to the CHRT by demonstrating that the CHRA should be applied within a First Nations context and with regard for other principles such as the interconnectedness of human rights, the Honour of the Crown and Fiduciary Duty.

The CHRC and FNCFCS cautioned that a finding there is no discrimination would have dire consequences. 

The AFN focused on linking the historical relations between the Federal government and First Nations, treaties, the legacy of residential schools and the Indian Act to current child welfare policies. The AFN counsel spoke passionately about the need to ensure that children are viewed as human beings within the proceedings and expressed that "children hold the greatest promise for First Nations communities and reconciliation with Canadian society."

The interveners, COO and Amnesty, gave contextual submissions supporting the complainants.

COO outlined their concern for remote First Nations communities that have little access to infrastructure and other services. COO completed their submissions by outlining the importance of upholding equality for First Nations children under the CHRA: "it would be unfortunate if we had to challenge the Human Rights Act under section 15 for unequal application for First Nations."

Amnesty provided a high level overview of the international obligations to which Canada has agreed, such as the Convention on the Rights of the Child and the United Nations Declaration on the Rights of Indigenous Peoples.

The counsel from Amnesty expressed that "in the eyes of the world, Canada is one jurisdiction" and warned that if the CHRT finds that Federal and Provincial services cannot be compared, then on the international stage, states could avoid their international human rights obligations by enabling different levels of government to provide different services to different groups of people.

When it came time for AANDC to respond, they focused on three areas of contention:

1. That the funding it provides should not be considered a service under section 5 of the CHRA and argued that even if it was considered a service, the complainants and interveners have failed to provide evidence of discrimination.

2. That Provincial services should not be compared to Federal services because they are two different jurisdictions, each with its own areas of responsibility under the Constitution.

3. That the Human Rights Tribunal is not the appropriate venue to hear this case, nor do they have the jurisdiction to award the remedies requested by the complainants.

In total, the complainants and interveners filed 734 pages of closing submissions and replies while, in response, AANDC's closing submissions totaled 68 pages.

The remedies requested by the complainants and interveners include the declaration that the AANDC funding is discriminatory, a cease and desist of the discriminatory practice, a recommendation that the CHRT monitor the cease and desist, the formation of a national advisory committee to develop a new funding formula and oversee the program and a $20,000 monetary award for each First Nations child taken into out of home care since 2006 to be placed into an independent trust to fund healing, language, culture, family reunification, counseling, health and wellness and education programs.

The decision is expected to be issued in the next four to six months.

Jocelyn Formsma is a member of the Moose Cree First Nation, grew up in Northern Ontario and currently lives in Ottawa, ON. Jocelyn has approximately 13 years of volunteer and work experience in children's rights, social development and youth engagement. She has a Honours Bachelor of Social Sciences in Public Administration and is currently pursuing her JD (Juris Doctorate) at the University of Ottawa. She is also a film maker, radio show host on CHUO 89.1 FM and one of the Niigaan: In Conversation organizers (www.niigaan.ca).

Photo: flickr/Brian Turner

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