Feds skate on a technicality

Legal technicalities should not be what determine if First Nations children on reserves receive services comparable to their offreserve counterparts.

“Having a case that’s this important, which alleges
discrimination and harm to children, decided on the facts, not on a legal technicality,” said Cindy Blackstock, executive director with First Nations Child and Family Caring Society. “These are not discretionary services. They are statutory services required by law and the Canadian Charter says that every Canadian has the right to equal benefit under the law. That’s clearly not happening here.”

In mid-March, the Canadian Human Rights Tribunal dismissed a claim put forward jointly by the society and the Assembly of First Nations which stated that funding of on-reserve children by Indian and Northern Affairs Canada (INAC) “differentiates adversely against these First Nation children contrary to section 5(b) of the
Canadian Human Rights Act” because funding is provided at a lesser rate than what is provided by the provinces and territories.

In a 67-page document, tribunal chair Shirish P. Chotalia,
ruled that comparing services delivered by different levels of government was not possible through the Canadian Human Rights Act (CHRA).

Chotalia wrote that “the ‘comparator’ question is a pure
question of law. . . . I find that the CHRA does require a
comparison to be made, but not the one proposed by the
complainants. Two different service providers cannot be
compared to each other.”

“And if it’s not under the jurisdiction of the Canadian
Human Rights Tribunal, which is a federal organization, to oversee the implementation of human rights by the federal government, then who’s jurisdiction is it,”
Blackstock said.

Chotalia also said that the inability of the parties to agree to work with a mediator to narrow the scope of the documents provided made it impossible for a ruling on whether INAC could be classified as a service provider. Both the AFN and the society asserted that as INAC provided funding it was a service provider.

Wrote Chotalia, “Given the expanse of the complaint, and a lack of reasonable definition to its parameters, I cannot decide the services issue on the evidence filed.”

Blackstock said the federal government attempted to blame the discrimination on the service
providers it funded.

“The agencies are not in the position to remedy the
discrimination. The government of Canada is. . . . It’s really an offloading of federal government discrimination responsibility onto the general public,” she said.

The society and the AFN filed the complaint with the tribunal in 2007, but the tribunal’s decision wasn’t made on the complaint brought forward, but on the federal government’s motion to dismiss the complaint.

“(Filing with the tribunal) really was a last resort,” said Blackstock. “We had already worked 10 years with (INAC and Inuit First Nations health branch) on a few solutions documenting inequality and developing remedies for it and (the federal government) walked away from both. And 10 years is a long time in anyone’s life, but in children’s lives that’s a humungous period of time. While we were sitting at that table some children stopped being children anymore and they never knew what it was to be treated equally by the government of Canada.”

The society will be appealing the tribunal’s decision to the federal Court of Appeal where the society has won before on similar questions.

“We cannot allow this decision to stand because if it does stand it not only denies appropriate treatment for First Nations children in child welfare, but it really would allow the federal government to discriminate at will against First Nations children without any recourse under the
Canadian Human Rights Act,” said Blackstock.

In a news release, AFN National Chief Shawn Atleo said, “We are reviewing the decision carefully and are going to consider all options to ensure this complaint moves forward because this is first and foremost about the welfare of First Nations children.”

From the documents and submissions received, Chotalia
noted that INAC’s funding supported 108 First Nations child welfare service providers delivering child welfare to approximately 160,000 children and youth in approximately 447 of 663 First Nations.