A verdict delivered by the Canadian Human Rights Tribunal within the next six months could find Canada in a unique position: the first country to be held liable for contemporary mistreatment of children.
“Many of these things that have happened in Canada and worldwide have been about wayward policies of governments that have happened in the past. But this case has the potential of holding governments accountable for doing the right thing for children today and going into the future. It’s a case that can fix things instead of just saying, ‘I’m sorry for the past,’” said Dr. Cindy Blackstock, executive director of First Nations Child and Family Caring Society of Canada.
The decision has been eight years in the making.
Blackstock’s organization and the Assembly of First Nations jointly launched a Canadian Human Rights complaint against the federal government in 2007. They maintained that the government had a longstanding pattern of providing unequal funding for child welfare services for First Nations children on reserves compared to provincial dollars non-Aboriginal children received. They said the federal government’s funding constituted a discriminatory practice which resulted in inequitable services.
Final arguments took place in late October. The tribunal must file its decision within four to six months.
Blackstock said nothing in the federal government’s closing statement surprised her.
“The only thing that surprised me was how weak they were.” She said there was no “robust argument.”
The federal government’s final written argument re-iterated its earlier case, stating that federal and provincial funding could not be compared as they were two different levels of service providers.
The federal government stated that the allegations “were not borne out by the evidence.”
Blackstock said the government both dismissed information provided by their own employees as well as information provided by now former Auditor General Sheila Fraser.
“They dropped their own expert witness. We filed their expert reports as part of our claim,” said Blackstock.
The Canadian Human Rights Commission has requested that the tribunal find the federal government’s funding formula discriminatory, end the discriminatory aspects of the federal program, and address the discriminatory aspects, taking remedial action within a 12-month period.
The Caring Society and AFN are going a step further, calling for the establishment of a trust fund, which would allow guardians to access support services for culture, wellness and education for the children impacted. As the federal government has tracked the children through their Indian registry system, identification of the affected children will be simple, said Blacklock.
“Under the Canadian Human Rights Act, every person who has been harmed has opportunity to receive some damages,” she said. “We feel that Canada has been so negligent on this file, that it has known about these inequalities for years, it has known it has been harmful for children for years and it has failed to take adequate measures, that it shouldn’t profit from the discrimination.”
Blacklock said they are also calling for immediate compensation.
“There are some fundamental flaws to the whole funding regime and those are the funds we are saying should go out the door right away,” she said.
Other funding needs will be specific to the situation of each First Nation and that is why it is paramount that the federal government work with First Nations in addressing the funding issue, Blacklock said.
Even more critical, though, she says, is that the tribunal remain involved if the verdict goes against the federal government.
“There absolutely needs to be independent oversight over the government’s implementation process,” she said. “And the fact that they’re fighting this caseÖ for the past six years, this isn’t a government that’s prepared to say, ‘I’m going to take accountability for the problem as our internal documents say we should and let’s get busy fixing it.’ Instead they’re fighting for the right to discriminate against the kids so I don’t think we should rely at all on their motivation to fix the problem on a voluntary basis.”
Although Blackstock is confident the decision will go in favour of First Nations children, she says whatever verdict is rendered, she thinks the process has been fair and impartial.
“Some people say it’s taken pretty much eight years and isn’t that a long time? And it is a long time but I’m absolutely convinced that without this case there would be no further action by the federal government to fix this problem. I would rather have undertaken this for eight years and have an opportunity to do something for kids versus sitting at endless negotiation tables where solution after solution goes unimplemented and childhood after childhood goes unsupported,” she said.