Court will hear child welfare complaint

One year after the Canadian Human Rights Tribunal [CHRT] dismissed a complaint against the federal government for its alleged discrimination in underfunding on-reserve child welfare services, the case is again going forward, this time through the federal court system.

A federal judicial hearing regarding the inequitable distribution of child welfare funds to on-reserve recipients is scheduled to take place early next year.

In February 2007, the First Nations Child and Family Caring Society of Canada (the Caring Society), a national non-profit organization providing services to First Nations child welfare organizations, and the Assembly of First Nations (AFN), the national organization representing First Nations citizens in Canada, filed a Human Rights compliant of alleged discrimination against Indian and Northern Affairs Canada (INAC).

The complaint was filed with the Canadian Human Rights Commission. It alleged that INAC, now known as Aboriginal Affairs and Northern Development Canada [AANDC], was acting in a discriminatory manner under the Canadian Human Rights Act for providing on-reserve Aboriginal children and family services significantly less funding than provincial governments offered those living off-reserve.

In October 2008, the Commission referred the case to the Canadian Human Rights Tribunal.

And in March 2011, after a lengthy delay, the Human Rights Tribunal dismissed the case on the basis of legal technicalities. They found that INAC was not responsible for discriminatory funding practises because the federal funding of services for on-reserve Aboriginal children could not be compared with the provincial funding of services for off-reserve.

Social assistance funds for people living on reserve comes from the government of Canada through AANDC [formerly INAC] and assistance for people living off reserve in BC, for example, known as income assistance or welfare, comes from the BC provincial government through the Ministry of Employment and Income Assistance.

The Tribunal argued that a comparison between the two levels of government regarding funding was incomparable and therefore inconsequential and the complaint was dismissed.

The announcement outraged some Aboriginal leaders, while others said the decision didn’t come as a shock.
“Based upon the proceedings to date, we fully anticipated that the Canadian Human Rights Tribunal chairperson would find a way to dismiss this case,” Grand Chief Randall Phillips of the Association of Allied and Iroquois Indians, said in a statement following the Tribunal’s decision last March. “As a result of this decision, the Chiefs of Ontario will participate in requesting a judicial review,” he vowed.

“First Nations children deserve the same level of services provided to off reserve, non-Aboriginal children,” added Ontario Regional Chief Angus Toulouse.”

The institutionalization of discrimination witnessed in the provision of unequal child welfare benefits is unacceptable. The Canadian government must be held accountable for the inequity faced by First Nations children,” he added.

“We applaud and support the dedicated efforts of the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations,” continued Toulouse. “We especially acknowledge every individual and organization at the forefront of this struggle who work tirelessly to deliver services to our First Nations children in need,” he concluded.

But the case was only beginning.

In April 2011, the Canadian Human Rights Commission applied to the Federal Court of Canada for a judicial review of the Tribunal’s decision. The Commission alleged that the Tribunal’s decision was wrong in law, and further that it had erroneously failed to conduct a full inquiry into the merits of the complaint thereby violating basic principles of procedural fairness.

In regard to the Tribunal’s decision, the Caring Society has stated that the interests of children should have been based on facts and not legal loopholes and technicalities.

Moreover, they claim that the Canadian Human Rights Act does not require a comparator group, but even if one was required it is clear that child welfare is a statutory and public service available to all children; therefore children receiving child welfare services off-reserve are a legitimate comparator group in determining funding and resource distribution amounts.

Cindy Blackstock, executive director of the Caring Society and Shawn Atleo, AFN National Chief, were unavailable to comment.

But the AANDC claims it is sticking to its mandate to support Aboriginal people (First Nations, Inuit and Métis) and Northerners in their efforts to improve social well-being and economic prosperity and develop healthier, more sustainable communities.

“The Government of Canada is satisfied with the Tribunal’s decision to dismiss the complaint filed by the AFN and the Caring Society,” stated AANDC Ministry spokesperson, Michelle Perron. “We will continue moving forward with willing partners and taking concrete actions that result in important progress with respect to child and family services,” she stated.

The Caring Society, AFN and the Canadian Human Rights Commission [CHRC] have each filed a judicial review of the Human Rights Tribunal’s decision. The hearing is expected to take place Feb. 13 to Feb. 15, 2012 in Ottawa Federal Court.