Tribunal finds Ottawa is discriminating against children on reserves

Tribunal finds Ottawa is discriminating against children on reserves

“This decision concerns children. More precisely, it is about how the past and current child welfare practices in First Nations communities on reserves, across Canada, have impacted and continue to impact First Nations children, their families and their communities.”

So reads the opening lines of the Canadian Human Rights Tribunal’s decision, released Jan. 26, on a case that pitted the Assembly of First Nations (AFN) and advocacy group First Nations Child and Family Caring Society (Caring Society) against the Attorney General of Canada, representing the Minister of Indian Affairs and Northern Development Canada (AANDC).

Almost nine years earlier, on Feb. 25, 2007, AFN filed a complaint with the Canadian Human Rights Commission (CHRC) regarding the welfare of First Nations children. Soon after, on Feb. 23, the Caring Society also filed, alleging that the AANDC’s provision of child and family services in on-reserve First Nations communities and the Yukon is discriminatory.

By September of the following year, the CHRC not only referred the case to the Canadian Human Rights Tribunal, but also backed the complainants by arguing in favour of First Nations children’s equity.

“AANDC’s design, management and control of the FNCFP, (First Nations Child and Family Services Program) along with its corresponding funding formulas and the other related provincial/territorial agreements have resulted in denials of services and created various adverse impacts for many First Nations children and families living on reserves,” all contraventions of the Canadian Human Rights Act, the report reads.

The hearing spanned 72 days, from February 2013 to October 2014.

“This is a complete victory for children,” said Caring Society CEO Cindy Blackstock, a Gitxsan social worker, in a press conference the day of the decision’s release. “It strips away any sensibility that First Nations children are being treated fairly by the government of Canada today and I want to dedicate this decision to all of the First Nations children who, for years and for decades, have been denied an equal opportunity to live the life they wish they had had and, sadly, were too often judged by a Canadian public who didn’t know any better, as if they got more.”

A country of inequality

At the same event, AFN Chief Perry Bellegarde addressed the gap between services available to children on and off reserve.

“Canada is rated sixth in terms of quality of life, according to the United Nations Human Development Index,” he said. “For indigenous peoples we’re 63rd.”

He called for the federal government to increase its financial supports to services for indigenous people, noting that more access for indigenous youth would be an investment in “human capital.”

“Once that gap starts closing in terms of services and equality of life, proper educational outcomes, proper health outcomes (and) greater economic development opportunities, we’ll see that gap start to close in terms of quality of life,” he said. “That’s a measureable outcome.”

Blackstock also called upon figures from both international organizations and the government’s own accounts to highlight the inequalities.

On average, Ottawa spends 20-30 per cent less on services for children on-reserve than off, a number routinely cited by advocates.

“The government of Canada has known that it’s underfunding these services, it has connected that underfunding to the growing numbers of children in care because First Nations families aren’t given the same supports as everybody else,” Blackstock said. She pointed to one government document that placed the shortfall around $108 million in funding for on-reserve child welfare services. “They’ve repeatedly had recommendations by joint reports and the auditor general, and they’ve not implemented it.”

One of those recommendations is implementing Jordan’s Principle, “a child-first principle intended to ensure that First Nations children do not experience denials, delays, or disruptions of services ordinarily available to other children due to jurisdictional disputes,” according to an AFN document.

Other stats captured the inherently human impacts of lacking services; about 163,000 children are believed to have been impacted.

“First Nations children are more likely to be in child welfare care today than at the height of residential schools by a factor of three,” Blackstock said. “One of the documents that really just struck to my heart was a spreadsheet, an Excel spreadsheet, and it counts the number of nights that First Nations children have spent away from their families between 1989 and 2012. Think about it, that’s the way your kids think about these things; it’s not percentages, it’s how many sleeps until I see my mom? And it’s over 66 million nights – 187,000 years of childhood.”

A long and winding road

The case was an uphill battle for Blackstock and her supporters.
At one point in 2011, the case was dismissed due to a legal technicality. It was revived, thanks to an appeal by Blackstock and the CHRC.

Pushback from the government could be quantified by court costs the previous federal government spent fighting the case, estimated to be around $3 million by July 2014.

It could also be quantified by the number of resources used to spy on Blackstock.
In 2011, the Aboriginal Peoples Television Network (APTN) reported the government was keeping a file on the advocate, complete with “emails and notes about Blackstock’s personal information and critical briefings on her activities.” The information came forward a year and a half after she had filed an Access to Information request on herself.

In 2013, the Privacy Commissioner ordered the federal government to stop monitoring Blackstock.
In addition to those issues, throughout the hearing, documentary disclosure and the admissibility of certain documents as evidence became an issue. The government failed to disclose all of its relevant documentation up front, including over 100,000 additional pieces of correspondence, eventually obtained through an Access to Information Act request submitted by the Caring Society – but not before causing delays to the trial.

What happens now?

“[T]he Panel acknowledges the suffering of those First Nations children and families who are or have been denied an equitable opportunity to remain together or be reunited in a timely manner,” the decision reads. “We also recognize those First Nations children and families who are or have been adversely impacted by the Government of Canada’s past and current child welfare practices on reserve,” ordering the federal government to “cease its discriminatory practices and reform the FNCFS Program and the 1965 [Ontario] Agreement to reflect the findings of this decision. AANDC is also ordered to cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan’s Principle.”

Children underserved by the FNCFS program could see compensation of up to $20,000 each, Blackstock said, going back to cases from 2006 onward.

She also asked the government to spend at least $200 million more annually, to close the gap in on-reserve children’s social welfare spending.

Justice Minister Jody Wilson-Raybould and Indigenous Affairs Minister Carolyn Bennett addressed the decision during question period.

“This is about ensuring that there is equal investment, and it is not just in terms of money, it is in terms of outcomes – that we create the space in this country for every child to be able to succeed,” Wilson-Raybould said.
All eyes are on Ottawa as its response to the decision should be accounted for in the upcoming federal budget, expected in March or April.

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