Charter cited as off-reserve groups fight for share of training funds

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A lawsuit filed early in June in the Ontario Court of Justice (provincial division) could lead to drastic changes in the way funding is directed to off-reserve Aboriginal people across Canada.

The statement of claim names the federal government as the defendant, but many observers fear the court will be asked to force band councils to pay more attention to members who live off-reserve, possibly reducing funding levels for reserve residents.

Vince Hill, chairman of the off-reserve group that filed the lawsuit, said the last thing he wants to do is to pit on-reserve residents against off-reserve residents.

"Our issue is with the federal government," he said. "Human Resources Development Canada is the defendant. Our point is that the federal government has a responsibility to deal with all groups on an equal basis."

Section 15 of the Canadian Charter of Rights and Freedoms - which guarantees "equal protection and equal benefit of the law" to all individuals - will form the basis of the legal action against the government, Hill said.

"The majority of off-reserve residents have no voting rights in their band council elections," Hill explained. "But the funding is handed down to the band councils. We have no voice. We receive inequal treatment from the federal government. The issue is equality."

"I want to avoid the on-off issue," he said. "The federal government put us all in this position. They're responsible. Too many times the government has pitted us against each other."

The dispute began when the federal government decided to devolve the control of the allocation of federal training funds in Ontario to an Aboriginal-controlled group. The Aboriginal Labor Force Development Circle, with the approval of the Chiefs of Ontario, was given the job of working out a plan to spread the federal training money around based on a complex formula which factored in the remoteness of a community, the local unemployment rate and other related data. The circle soon started losing members as various band councils, who disagreed with the way the circle was allocating the money, negotiated their own "regional bilateral agreements" with Human Resources. Soon, to the frustration of circle officials, any province-wide strategy which included off-reserve residents, Metis and non-status Aboriginal people collapsed.

Many off-reserve sources claim that band council governments, or their agents who are responsible for training, have no political motivation to make funding available to off-reserve residents. They claim they are forced to travel to the reserve to register for or receive training. In many cases, off-reserve people believe they are being intentionally inconvenienced to discourage them from accessing the programs so that there will be more money left over for the band councils to use as 'slippage' or unused funds. Band council sources, in turn, complain that funding levels have not kept pace with a growing need, especially after large numbers of Bill C-31 returnees swelled the on-reserve populations of many First Nations.

Ontario Regional Chief Gord Peters said he worries about the outcome of the civil action but believes the band councils created their own trouble by excluding the off-reserve members.

"The big problem is that our communities are supposed to look after their people in the urban areas - and they're not," Peters said. "That's a real contradiction in terms of what our people felt. There's a lot of our people in the urban area in this region - probably 50 per cent. And our communities always take the same political stance: that we'll look after our citizens wherever they reside. But the first opportunity they have under this particular program, it didn't happen."

While Hill said the lawsuit is not intended to divide the First Nation people in Ontario, Peters said it will.

"It's an argument based on exclusion rather than inclusion," he said. "Rather than fighting for dollars collectively for Aboriginal people, hey're fighting for dollars for the urban area."

Peters said the Canadian Constitution recognizes the rights of three types of Indigenous peoples - "Indian, Inuit and Metis." This case is an attempt to sub-divide the former category and could create a very unpredictable and dangerous legal precedent.

Steve Williams, the chairman of the Aboriginal Labor Force Development Circle is frustrated by the fact Hill decided to initiate the court action.

"I know it's not Vince's intention to put the off-reserve people up against the chiefs, but I think that's exactly what's going to happen," Williams, the former Six Nations band council chief said.

Williams finds it ironic that a federal department like Human Resources Development would make the "progressive" decision to fund off-reserve Aboriginal people for services, contrary to the Department of Indian Affairs' policy of funding only those who live on-reserve, only to find itself being sued.

Metis lawyer Chris Ried, who represents the Ontario off-reserve groups who are suing the government, agrees that it's unfortunate that Human Resources Development is caught up in the lawsuit when its policy seems to be contrary to the very unpopular stance of other federal departments that rule Aboriginal rights are not portable and end when an individual leaves the reserve. But, he said, band councils receive training funds for all members and the off-reserve residents are not benefiting the way they should.

"The new regional bilateral agreements exclude off-reserve members from any control of the money," he said. "The information in our statement of claim is six inches thick, but I think you can sum it all up by stating one simple fact: a clear majority of the Aboriginal people in this region live off-reserve and they are excluded from the decision-making process which is discriminatory."

Ried doesn't believe the case will open any Pandora's box of dangerous new court rulings, but he grants that it could erode the band councilsystem's control of government funding and political control, something he doesn't necessarily believe is a bad thing.

"I've been instructed not to exacerbate the division between on-reserve and off-reserve communities. That's an important point for my urban clients," he explained. "But we're not widening or narrowing the division with this action. The division is there."

As for any fears that funding levels will drop as a result of the court action, Ried said the money received by band councils could and should go down as off-reserve groups get budgets to work with. Overall amounts of funding however will stay the same or rise.

"There are signed contracts in place with the national framework agreements. I don't see how the government can cut funding," Ried said. "Our position is that the government made a mistake and it may become apparent that new money needs to be added to the program to correct that mistake."