The federal government is once more ignoring the needs of the most vulnerable group in Canadian society, said an advocate for First Nations children.
The Department of Justice Canada has appealed the decision rendered April 18 by the federal court that orders the Canadian Human Rights Tribunal (CHRT) to consider the charges levied by the First Nations Child and Family Caring Society, and other organizations. They say the federal government is discriminating against First Nations children in care in their delivery of treatment and services.
“I think the question all Canadians should be asking is, ‘Why?” said Dr. Cindy Blackstock, executive director of the Caring Society.
“Why is the federal government appealing a decision that would basically call on them to present all their facts to defend themselves against these allegations of discrimination?’ If they’re innocent, then why would they be trying to run away from a hearing like that?”
Federal Court Judge Anne Mactavish found that an earlier tribunal erred when it failed to provide its reasons for deciding the complaint brought against the federal government could not proceed under the Canadian Human Rights Act, as well as erred when it determined that federal care of First Nations children could not be compared to provincial care.
“I was absolutely thrilled (with the judge’s decision). What we’ve been after here is a full hearing on the facts so we and Canadians can learn if the government of Canada is racially discriminating against (First Nations) children, and I believe strongly that they are doing that,” said Blackstock.
In its grounds of appeal, the federal government stated that the trial judge erred in all areas of her findings.
Blackstock takes particular exception to the government’s claim that “the application judge erred in determining that the tribunal breached procedural fairness by considering extrinsic evidence without advising the parties and permitting an opportunity to respond.”
Blackstock said the tribunal considered more than 10,000 pages of material in making its decision, but only 2,000 pages had been submitted by the parties. She noted that one document considered by the tribunal had been filed two months after the hearing.
“Canada is appealing even on that ground. So what are they suggesting? Are they suggesting that members of the judiciary should be free to look at any kind of material that they so choose in making a decision regarding a matter that comes before court and that the parties don’t know what that information is and should have no input into it? It’s unbelievable,” she said.
Blackstock’s organization, along with the Assembly of First Nations (AFN), has been fighting since 2007 for the Canadian Human Rights Commission to hear evidence that the federal government underfunds care for First Nations children living on reserves compared to other Canadian children living off-reserve.
In 2011, the human rights tribunal dismissed the discrimination complaint. That dismissal was then challenged in court by the Caring Society and the AFN, which were joined by the commission. The Chiefs of Ontario and Amnesty International received intervener status.
No date has been set for the Federal Court of Appeal to hear Canada’s challenge to Mactavish’s decision, but Blackstock said all five organizations fighting for First Nations children will be present.
The court-ordered tribunal will not be delayed while the appeal is waiting to be heard unless Canada applies for and receives a stay of proceedings.
“I expect they will (apply for the stay) because they have just simply had a long-term pattern of not wanting to face up to the fact—using loopholes, whatever they can find—to try and delay things for the children,” said Blackstock. She is confident a stay will not be granted and noted that her organization will “vigourously oppose” any delay.
Blackstock is hoping to meet with the tribunal soon to establish dates for the hearing. However, she is concerned that a delay may come about because of internal problems with the tribunal group itself.
She noted that Canadian Human Rights Tribunal Chairwoman Shirish Chotalia went on a stress leave in April, and that an internal investigation upheld allegations by tribunal members of harassment by Chotalia.
As well, the CHRT is operating short-staffed as a number of employees have left the organization.
“We’re saying, look, it was because of this flawed decision-making by the chair that we’ve been set back three years, pretty much, and we want to move forward,” said Blackstock.
The tribunal has the authority to order a remedy to the discrimination. Any decision made by the tribunal is binding.
“I measure success at the level of children and I want them to have the same opportunities to succeed that all other Canadian children already enjoy,” said Blackstock.
She noted that Mactavish’s ruling opens the door to similar challenges on federal funding to First Nations in other areas such as education, policing and health.