Editorial: No ‘overstretching’ in Caring Society decision by Human Rights Tribunal

No ‘overstretching’ in Caring Society decision by Human Rights Tribunal says Op-Ed


Special to APTN National News 

Editors note: This op-ed was written in response to a Globe and Mail editorial that ran May 1 entitled:  Native child welfare, yes; judicial overstretch, no. According to the authors of the response below, the Globe did not post their response. 

The Globe & Mail editorial, “Native child welfare, yes; judicial overstretch, no” (May 1, 2016), asserts the Canadian Human Rights Tribunal was ‘overstretching’ its jurisdiction. The Tribunal has refused to accept the federal government’s argument that increased budget allocations for child welfare services satisfies the Tribunal’s January decision. The decision ordered Canada to cease its discriminatory practices against First Nations children, yet the budget does not even meet the government’s own internal cost-estimates to approximate provincial service levels, let alone end the discrimination. Therefore, suggesting the Tribunal’s oversight of the government’s sub-par response is ‘overstretching’ is an assertion that paying up for human rights abuses is optional.

The Tribunal found Canada’s conduct in relation to First Nation child welfare funding formulas discriminatory, with First Nations children receiving 22-37% less funding than children in provincial systems – an affront to human rights. The Globe whitewashes this finding by characterizing it as a need to “equalize” child welfare services provided for Aboriginal and non-Aboriginal children, which it perplexingly calls “desirable”. The editorial fails to mention the serious and lasting harms ongoing discrimination has created for First Nations children and families – indeed it fails to mention the very word ‘discrimination’.

The Tribunal found that Canada’s First Nations Child and Family Services (“FNCFS”) Program to be the continuation of the residential school system by creating incentives to remove children from their homes as a first, rather than as a last resort. The Globe does not state how the underfunded system cleaves First Nations children from their families, communities, languages and cultures, often permanently. It doesn’t mention that although Aboriginal children only account for 7% of children in Canada, they make up nearly half of all children in foster care, nor the ways in which Canada’s underfunding of the FNCFS Program contributes to this disparity.

The editorial ignores the Tribunal’s finding that the government has known about the funding disparity, and the harms it causes, for years but chose not to act. The decision cites a 2006 internal government report, where government staff acknowledge that federally funded social programs on reserve, including child welfare are “limited in scope and not designed to be as effective as they need to be to create positive social change or meet basic needs in some cases.” The report notes, however, provision of services on reserve at provincial service levels would result in a significant cost increase for the federal government.

Given the government’s budget is currently nowhere near the level necessary to ensure First Nations children on reserve are treated equally to Canadian children in the provinces, the Tribunal does not ‘overstretch’. The Tribunal has retained jurisdiction to receive regular reports from the government about how it intends to end the discrimination. In 2003, the Supreme Court of Canada upheld a similar approach in Doucet-Boudreau v. Nova Scotia, by approving the retention of jurisdiction where the government deliberately failed to build a constitutionally mandated French-language high school. As time passed without a school, increased assimilation into the English speaking community was the inevitable result. The delay affected the continued vitality of the community. This warranted a remedy to ensure a prompt, real, remedy. Similarly, the circumstances of this case warrant direct supervision given the vulnerability of First Nations children to assimilation through the child welfare system, decades of known discrimination, and government dithering.

Moreover, the Globe confuses the budgetary process with the government’s obligation to honour court orders. Indeed, the government’s lackluster response to the Tribunal’s order seems to indicate that when First Nations children are involved, human rights are suddenly more desirable than fundamental to Canadian society. To expect First Nations children and families to accept whatever is allocated to them in the federal budget, and not the award the Tribunal ultimately designates to remedy years of discrimination, presents an unacceptable double standard – the very definition of discrimination. As the Truth and Reconciliation Commission of Canada has already stated, the time for discrimination against First Nations children and families must end. We have seen what happens when it is allowed to fester unabated.

Human rights apply to everyone – including First Nations children. In the words of the Tribunal, “This is the season for change. The time is now.”

Authors: Jeffery Hewitt, a Cree lawyer, General Counsel at Rama First Nation and Visiting Scholar at Osgoode Hall Law School; Sonia Lawrence, Associate Professor and co-Director, Institute of Feminist Legal Studies at Osgoode Hall Law School; and Naiomi Metallic, a Mi’gmaq lawyer, joining the Schulich School of Law at Dalhousie University as an Associate Professor in July 2016.

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