Ending discrimination against First Nations children in Canada

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In February 2007, a human rights complaint was filed by the First Nations Child and Family Caring Society (the "Caring Society") and the Assembly of First Nations ("AFN") against the Government of Canada, alleging that the government discriminated against First Nations children by providing inequitable child welfare services to children living on-reserve as compared to children living off-reserve (First Nations Child).

In particular, the First Nations Child complaint alleges that the federal government's program underfunds children living on-reserve, such that children do not receive needed care and support that would permit them to continue to live at home and, as a result, First Nations children are disproportionately removed from their families in comparison to non‑First Nations children. The impact of the child welfare system on First Nations communities has been compared to the legacy created by the residential school system.

After six years of delay due to procedural motions brought by the government, including a motion to dismiss the complaint, the case was finally heard on the merits in late 2014. A decision is expected to be released by April 2015. This decision is important because it will have a significant impact on the rights of First Nations children in Canada.

Background

Ordinarily, child welfare services fall within provincial jurisdiction, meaning that the provincial government funds child welfare services for residents in its province. This is not the case for First Nations children who live on reserves. The federal government funds child welfare services for children living on reserves through the First Nations Child and Family Services Program (the "Program"); however, funds are transferred from the federal government to the provinces, or government-authorized child and family services agencies to deliver services in accordance with their own provincial standards or norms.

Unfortunately, federal funding for child welfare services is often insufficient to provide services at the provincial standard. This has resulted in the federal government refusing to pay more and the provincial government refusing to provide the service needed. Access to health and social services for First Nations children on reserves in Canada was recognized as a problem in the mid‑2000s, following the tragic death of Jordan River Anderson. Jordan died in the hospital at the age of 5, never having lived at home with his family, because the federal and provincial government were too busy arguing over who should pay for his home care.

In 2007, Parliament agreed to implement "Jordan's Principle," which aims to prevent First Nations children from being denied prompt access to services because of jurisdictional disputes between different levels of government. It is a child-first principle that requires the government department first contacted for a service available off-reserve to pay for it and to pursue repayment of expenses afterwards. It applies to all government services available to children, youth and their families. Jordan's Principle was recognized by the Federal Court of Canada in a 2013 decision, where it directed the government to ensure that First Nations children receive services in accordance with provincial/territorial practice norms and in compliance with legislated standards.

Since 2007, the federal government has been criticized by the Auditor General (Sheila Fraser in 2008), the Canadian Paediatric Society (2009), the United Nations Committee on the Rights of the Child (2012) and UNICEF (2012), among other parties and organizations, for failure to properly implement Jordan's Principle.

The human rights case against Canada

Section 5 of the Canadian Human Rights Act ("CHRA") states that it is a discriminatory practice to deny an individual access to services on a prohibited ground (i.e. race; national/ethnic origin). It is also a discriminatory practice to provide publicly available services to an individual in a manner which differentiates adversely against that individual.

A "service" has been defined as an activity that: a) confers a benefit; and b) takes place in the context of a public relationship. 

In First Nations Child, the claimants argue that discrimination can be proven against the government because:

a) Some child welfare services are denied or not provided to First Nations children (that are provided to children living off-reserve i.e. mobility devices, mental health services and orthodontics);

b) First Nations children on-reserve receive 22 per cent less funding on a per-child basis than is provided to children living off-reserve in the average province (provincial funding for child welfare services off-reserve is based on the actual number of children in care whereas federal funding is based on a formula that bears little relationship to the actual number of children in need);

c) First Nations children living on reserves suffered historical prejudice or disadvantage resulting from assimilationist policies (residential school system); and

d) The federal funding program for child welfare services perpetuates the prejudice or disadvantage of First Nations children living on reserves. (First Nations children on-reserve are eight times more likely to be taken into the child welfare system than non-Aboriginal children.)

The Program arguably perpetuates disadvantage to First Nations children because it provides unlimited resources for First Nations children who have been removed from their homes and put in foster care but grossly underfunds services designed to allow children to remain in their homes with support services (called "least disruptive measures"). The result of this Program is to provide a perverse incentive to remove First Nations children from their homes.

The federal government argues that it did not discriminate against First Nations children living on-reserve because:

a) It only provides funding to First Nations children on-reserve (and a comparison between federal and provincial/territorial funding systems is not a valid comparison);

b) It does not provide a "service" within the meaning of the CHRA (i.e. the funding is provided from the federal government to the provincial government or agency and not to the individual directly); and

c) The difference between the level of services and programs provided resulted from choices made by the First Nations agencies about the type of services and programs they wanted to provide to children, rather than lack of funding from government.

Based on existing case law, and the stated purpose of federal funding under the Program, it seems unlikely that the Canadian Human Rights Tribunal ("CHRT") could conclude that the federal government was not providing a service to First Nations children, albeit indirectly. The Program's purpose as stated in its own manual is to "support culturally appropriate child and family services for Indian children and families resident on-reserve or ordinarily resident on-reserve, in the best interest of the child, in accordance with the legislation and standards of the reference province." The government is clearly providing a benefit to members of the public.

Further, the comparator argument put forward by the federal government appears to be both nonsensical and technical, because it is the differential impact on children in any given province in Canada that ought to be considered, not the source or flow of funding. Additionally, the federal Program itself requires child welfare services to be provided with reference to the provincial standard. As such, it would be inappropriate to ignore the province/territory's funding levels as a comparator.

Impact of decision

The First Nations and human rights communities in Canada are anxiously waiting for the CHRT to release its decision in the First Nations Child case. A decision in favour of First Nations children would have a tremendous impact on their communities if the government was required to fully implement Jordan's Principle, in accordance with its true spirit, to alter its funding model to ensure adequate child welfare service levels, and to support less disruptive measures for First Nations children on-reserve.

While such a decision could open the door to multiple challenges by First Nations communities with respect to funding of other services provided on-reserve such as education, health, policing and housing, it will, first and foremost, provide a means for further reconciliation between First Nations and the Crown.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to probono@rabble.ca. Read past Pro Bono columns here.

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Photo: Courtesy of Liam Sharp and the First Nation Child and Family Caring Society of Canada

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