Court hears complaint against rights tribunal decision

The Assembly of First Nations, First Nations Child and Family Caring Society of Canada, and the Canadian Human Rights Commission forced a three-day judicial review in federal court Feb. 13 to Feb. 15 to argue against a decision by Canadian Human Rights Tribunal Chair Shirish Chotalia.

In 2011, Chotalia dismissed a claim that accused the federal government of discriminating against on-reserve people by underfunding child welfare services. Core to the argument was a comparison with the provincial funding provided for those same services offered to the off-reserve population.

The federal government argued that the comparison could not be made because the services were delivered by two different levels of government and to different clientele. Chotalia agreed.

First Nations were appalled that the tribunal review of the matter was scuttled by what amounted to a technicality.

“It really can’t and should not be about technicalities that hinder, or hold back, First Nations children from being served in an equitable and fair fashion. And for there to be justice, it really must be much more than that,” said AFN National Chief Shawn Atleo.

Numerous reports by former Auditor General of Canada Sheila Fraser back up claims by the AFN and Caring Society that federal funding provided by Aboriginal and Northern Affairs Canada for child welfare is woefully inadequate and has resulted in poor living conditions and care of children on-reserve.

“The auditor general and the Standing Committee on Public Accounts and many others have found this underfunding to be severe,” said Cindy Blackstock, executive director of the Caring Society.

“The Department of Indian Affairs’ own documents that we filed with the tribunal, they call the situation dire and they talk about the fact that kids are going into care because of inadequacy of prevention resources and they even go further than that and say they’re worried if they don’t take action, that these kids will grow up and sue them because of abuse and neglect in care.”

Atleo pointed out that Fraser also claimed that federal funding for on-reserve services was “arbitrary.”

“She (said that) First Nations are the only segment of the Canadian population with no statutory guaranty for long-term funding upon which any community can provide proper planning and proper foresight,” said Atleo.
In 2007, the AFN and the Caring Society brought the claim of discrimination to the human rights commission which assessed and referred the matter to the tribunal for a full hearing.

The hearing on the merits of the case began in 2009. The federal government then argued that the case be dismissed because the tribunal did not have jurisdiction to make a decision, as funding does not fall within the scope of the Canadian Human Rights Act and that the services offered by different government could not be compared.

In 2011, tribunal chair Chotalia agreed, dismissing the case on technicalities and not on merit.

“These kids don’t choose to be funded by the federal government. It’s an imposition by the governments themselves. They create this place where the children are underfunded by the federal government. The children shouldn’t be having their rights violated and getting a lesser service because of that,” said Blackstock.

The effects of that lesser service are obvious, said Atleo, who points to inadequate housing, poor schools, lack of clean drinking water, lack of access to services, poverty, and a high percentage of Aboriginal children in care.

Blackstock and Atleo said their organizations stand firm in supporting the “most vulnerable” people of society – the children.

“I personally am not going to stop until that situation is addressed and in doing so it’s going to uplift our country to the values it’s based on,” said Blackstock.

The court must decide whether to uphold the tribunal’s decision; send the case back to tribunal for a full hearing; or rule itself, based on the facts.

Justice Anne Mactavish said although the matter was urgent she could not indicate when her decision would come down.