Closing arguments in First Nations Child Welfare case start today

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Photo: flickr/John Liu

Closing arguments on the most important Indigenous children's rights case will be heard from October 20-24, 2014 at the Canadian Human Rights Tribunal in Ottawa, Ontario.

FOLLOW: Jocelyn Formsma is live-tweeting the proceedings @JossOssim

These closing arguments will be the end of a near eight-year battle for the First Nations Child and Family Caring Society (FNCFCS) and the Assembly of First Nations (AFN) against what is now known as Aboriginal Affairs and Northern Development Canada (formerly Indian and Northern Affairs Canada) regarding equitable funding levels of child welfare services on reserve.

The FNCFCS and AFN have maintained throughout the proceedings that Indigenous children and families living on reserve receive less funding and therefore fewer services than their counterparts living off reserve.

Generally, child welfare services in Canada are provided and funded by provinces. However, child welfare services for Indigenous children and families living on reserve are provided by provinces, but are funded by the federal government. This means that when the province makes a decision about child welfare services off reserve that require additional funding, the on reserve service providers will only be able to provide the same level of services if the federal government provides the same level of funding.

The FNCFCS and AFN allege that the federal government has been knowingly underfunding on reserve service providers, the result is an increasingly growing number of Indigenous children in the child welfare system. The federal government has maintained the child welfare funding does not constitute service delivery and that First Nations children on reserve do not receive child welfare funding at a discriminatory level compared to their counterparts in Canada. The federal government has also maintained that the Canadian Human Rights Tribunal (CHRT) is not the appropriate venue to hear this case.

The outcome will not only affect the way that Canada funds child welfare services on reserve, but might also have implications for other services that the federal government provides funding for on reserve including education, social assistance and health. 

The FNCFCS and AFN launched the complaint in February 2007 but the actual hearing dates didn't begin until February 2013 due to legal wrangling.

The full timeline of events can be viewed here, and a video record kept by the Aboriginal Peoples Television Network can be viewed here, but to summarize the key events:

  • February 2007: FNCFCS and AFN launch the complaint.

  • September 2008: Canadian Human Rights Commission (CHRC) reviews the complaint and refers it to the Canadian Human Rights Tribunal. Due to the nature of the complaint and its potential impacts, the CHRC joins the FNCFCS and AFN.

  • October 2008: Canada appeals the CHRC decision to refer the matter to tribunal. Motion is denied and the hearing dates are set for November 2009-February 2010.

  • November 2009: Conservative government appoints a new Chair of the CHRT. All hearing dates are vacated until further notice.

  • December 2009: Canada files motion to dismiss the complaint.

  • June 2010: Hearing date for Canada's motion to dismiss. Decision expected within four months.

  • February 2011: FNCFCS, AFN and CHRC file an application in Federal court for a mandamus, essentially forcing the CHRT to making a ruling on the motion to dismiss.

  • March 2011: CHRT rules on the motion and dismisses the complaint.

  • April 2011: CHRC files for judicial review of the CHRT decision with the Federal Court.

  • April 2012: Federal Court sets aside the decision by the CHRT and calls for a "differently constituted panel" to be set up by the CHRT to re-hear the arguments.

  • May 2012: Canada appeals the Federal Court decision. Requests a review by the Federal Court of Appeal.

  • July 2012: Acting CHRT Chair appoints a three-member panel to hear the case.

  • August – October 2012: CHRT panel sets dates for hearing and approves APTN to broadcast the hearings despite no ruling on Canada's request to appeal.

  • March 2013: Federal Court of Appeal dismisses Canada's application to overturn the Federal Court decision.

  • February – August 2013: CHRT hearings on the merits of the case.

  • January – March 2014: CHRT continues hearings on the merits of the case.

  • August – October 2014: CHRT receives written closing submissions from all parties.

  • October 20-24, 2014: CHRT will hear closing arguments from all parties.

It is expected that the decision will likely be appealed no matter what the CHRT decides in this case. The road ahead might involve an appeal to the Federal Court, the Federal Court of Appeal and, possibly the Supreme Court of Canada.

The closing arguments are open to the public and will be heard from 9:00-4:00 p.m. from October 20-24, 2014 at the Canadian Human Rights Tribunal on Elgin Street in Ottawa, Ontario and the event will be live-streamed on www.fnwitness.ca

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/John Liu

 

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