Ruling should lead to more than financial changes in child welfare services on reserve

January 28, 2016

Earlier this week, the Canadian Human Rights Tribunal directed the federal government to address the discriminatory practise of inadequately funding child welfare services on reserve.

Del Graff, Alberta’s child and youth advocate, says the CHRT’s decision goes far beyond financial inadequacies.

“In part, what was demanded by the tribunal is to change the way these services are provided,” said Graff.

For those changes to take place, he says, a new relationship must be built between federal, provincial and First Nations governments.

“Changes (are needed) that would reflect a more inclusive process, better partnering, a process where child welfare is embedded in a First Nation world views as opposed to a kind of provincial government world view,” said Graff.
This means self-determination by First Nations communities on how child welfare services are delivered on-reserve, he says, but also allowing First Nation communities and leadership to “have a presence” in the delivery of child welfare in urban centres, where much of their membership live.

This change in relationship needs to happen before an action plan can be put in place to address child welfare services, says Graff, which means there’s an urgency for dialogue to occur between “the most senior decision makers” at all three levels.

“Leaders really do set the course and if they set a clear course, if there’s a shared understanding of what that course is, and they start to share the language of what that actually means, then (action) becomes more concrete instead of less concrete,” said Graff.

He adds there is an immediate need to bring about the changes referenced by the tribunal and he is concerned that the tribunal’s decision did not offer a timeframe for the work to be undertaken.

While CHRT’s decision spoke directly to federal funding of child welfare services on reserve, Graff says provinces still have an important role to play as First Nations delegated authorities are accountable to the provinces.

“The commitments that they need to make are within their realm as a province and that’s the commitment for the policy to change, for the practises around how child welfare is delivered in communities to shift so that there is an equal partnership with Aboriginal communities, with their leadership,” said Graff.

In a statement, Premier Rachel Notley said her government applauded the decision and “look forward to continuing the conversation with Indigenous leadership and our federal counterparts to ensure that all children grow up with access to the supports and services they need.”

What the financial implications for such a change will be for Alberta is unknown at this point. Graff says it is also unclear how many children in Alberta will be eligible for the $20,000 per child compensation that the tribunal has yet to rule on. The CHRT allows a maximum individual compensation of $20,000 but delayed its decision for three weeks on whether the compensation, to be awarded to First Nations children on-reserve, who came under government care since 2006, will be given individually to the children impacted or if some of that funding will be pooled to deliver treatment.

In 2007, the First Nations Children and Families Caring Society and Assembly of First Nations joined to file a discriminatory claim against the Conservative government and Aboriginal Affairs and Northern Development Canada asserting that First Nations family and child services agencies received insufficient funding to do their work on reserve.

On Jan. 26, the tribunal delivered a 182-page ruling saying AANDC had inadequately funded services and in doing so discriminated against First Nations children and families living on reserve and in the Yukon. That lack of funding, said the tribunal, negatively impacted the children and families. The tribunal also said that the government implemented Jordan’s Principle too narrowly. Jordan’s Principle calls for jurisdictional disputes over funding to be put secondary to the child’s best interest.

“This is a decision that has come after many, many years…. As Canadian citizens we should all be concerned about policies that are like this and when they’re corrected, I wouldn’t want to see our governments argue that. There’s a time when right is right and this is one of those circumstances when the tribunal came with the right decision and it’s really up to Canada and the communities in Canada and people, who care, to say, ‘That is right and we’re not going to accept anything else,’” said Graff.