Ottawa discriminates against First Nation children, says historic ruling from Canadian Human Rights Tribunal

Canadian Human Rights Tribunal says Indigenous Affairs’ child welfare program provides incentive for children to be taken from families.

Jorge Barrera and Mark Blackburn
APTN National News
OTTAWA–Canada discriminates against First Nation children by underfunding the on-reserve agencies charged with ensuring their safety, according to a long-awaited ruling by the Canadian Human Rights Tribunal.

According to the ruling, which will be released Tuesday, the Human Rights Tribunal demands the federal government make sweeping changes to the way it manages and funds on-reserve First Nation child welfare services.

The human rights tribunal said current funding formulas create an incentive to remove children from their families.

“The Panel finds the complainants have presented sufficient evidence to establish a prima facie case of discrimination under section 5 of the CHRA. Specifically … that First Nations children and families living on reserve and in the Yukon are denied equal child and family services, and/or differentiated adversely in the provision of child and family services,” according to the ruling.

Tribunal Chair Sophie Marchildon during the discrimination complaint hearings against Canada. Photo: APTN

APTN obtained an advanced copy under an agreement it would not report the contents until Tuesday morning.

The tribunal’s ruling said the very foundation of Ottawa’s on-reserve child welfare program needed an overhaul because the whole structure was about to collapse.

“(Indigenous Affairs) is ordered to cease its discriminatory practices and reform the (child welfare program)…to reflect the findings of this decision,” said the ruling. “At some point the foundation needs to be fixed or, ultimately, the house will fall down,” said the ruling.

The ruling said the federal Indigenous Affairs department causes First Nation children and families to suffer through the way it designs, funds and manages on-reserve child welfare services.

Indigenous Affairs’ current funding formula for child welfare “perpetuates the incentives to remove children from their homes,” the ruling said.

The tribunal also ordered the department to “immediately implement the full meaning and scope of Jordan’s Principle” which was established to ensure First Nation children get the care they need before Ottawa and the provinces settle jurisdictional battles over who should pay.

The tribunal found that Indigenous Affairs officials applied the principle too narrowly at the expense of children in need.

The ruling is a resounding victory for the First Nation Child and Family Caring Society and its president Cindy Blackstock who first launched the complaint, with the Assembly of First Nations, back in 2007.

Blackstock atTribunal
Cindy Blackstock, Executive Director of the First Nations Child and Family Caring Society making opening remarks at the hearings in 2013. Photo: APTN

After 72 days of hearings which ran from February 2013 to October 2014, a related tribunal victory on a retaliation complaint against Ottawa, skirmishes before the Federal Court and the Federal Court of Appeal and the delayed disclosure of over 100,000 internal department documents, the tribunal sided with Blackstock’s core complaint.

Now the main parties to the case—Ottawa, Blackstock’s organization and the AFN—have three weeks to figure out a process with the tribunal on implementing the ordered changes.

The tribunal is also giving the parties three weeks to determine the process for settling the issue of compensation.

The Child and Family Caring Society requested compensation of $20,000 for each First Nation child taken into care since February 2006 and the money be put into a trust fund to support healing programs tailored to children.

The AFN requested an expert panel be created to determine compensation.

The previous federal government of Stephen Harper fought the human rights complaint every step of the way, challenging and losing before the Federal Court of Canada and the Federal Court of Appeal.

Justice Canada lawyers argued in futility that the tribunal had no jurisdiction to make any determinations on the issue and that Indigenous Affairs only cut cheques which did not qualify as a delivery of a service. The Tribunal dismissed the government’s non-service assertion.

“Even as AANDC’s role in the child and family welfare of First Nations is limited to funding, there is nothing in the Canadian Human Rights Act that excludes funding from the purview of section 5. This is, funding can constitute a service if the facts and evidence of the case indicate that the funding is a benefit or assistance offered to the public …” said the ruling.

Last June, the tribunal also ruled in favour of Blackstock in a related complaint. The tribunal found that a senior official in then-Aboriginal affairs minister Chuck Strahl’s office “retaliated” against Blackstock over her human rights complaint by blocking her from attending a December 2009 meeting between the department and chiefs.

The federal Privacy Commissioner also determined in May 2013 that Justice Canada and Indigenous Affairs officials spied on Blackstock because of her child welfare complaint.

See related stories: 

Aboriginal Affairs “retaliated” against First Nation child advoctate over human rights complaint: Tribunal

Federal Aboriginal Affairs department spying on advocate for First Nations children 

According to the human rights tribunal ruling, Indigenous Affairs made little effort to improve its child welfare program despite ample evidence it was not working. The tribunal said internal reports and provided the department with ways to “address the adverse impacts” of its child welfare program, but were mostly ignored.

“Despite being aware of the adverse impacts resulting from the (First Nation Child and Family Services) program for many years (Indigenous Affairs) has not significantly modified the program,” said the ruling. “While efforts have been made to improve the (child welfare) program…those improvements fall short of addressing the service gaps, denials and adverse impacts…and, ultimately, fail to meet the goal of providing culturally appropriate child and family services to First Nations children and families living on-reserve.”

Jonathan Tarlton
Department of Justice lawyer Jonathan Tarlton. Canada fought the discrimination case at every turn. Photo: APTN

The ruling does not cover child welfare services in the Northwest Territories and Nunavut.

Generally speaking, Indigenous Affairs funds and provides on-reserve child welfare services through First Nation child welfare agencies or through provincial agencies.  The department also has a handful of one-off trilateral provincial and territorial child welfare agreements.

Indigenous Affairs has a unique 1965 cost-sharing agreement with Ontario that governs on-reserve child welfare services in that province.

While Indigenous Affairs claims to provide child welfare services that are “reasonably comparable to those provided off-reserve,” the tribunal found that the department has “difficulty defining what it means” and knows it doesn’t provide enough money to meet provincial-territorial legislation and standards.

Yet “(Indigenous Affairs) insists that (First Nation child welfare agencies) somehow abide by those standards and provide reasonably comparable child and family services,” said the ruling. “Instead of assessing the needs of Frist Nations children and families and using provincial legislation and standards as a reference to design an adequate program to address those needs, (Indigenous Affairs) adopts an ad hoc approach to addressing needed changes to its programs.”

The tribunal found that Indigenous Affairs has not executed any significant changes to its child welfare programs since 1990 and hasn’t updated its 1965 agreement with Ontario since 1998.

“(Indigenous Affairs’) design, management and control of the (on-reserve child welfare) program, along with its corresponding funding formulas and other related provincial-territorial agreements have resulted in denials of services and created various adverse impacts for many First Nations children and families living on reserves,” said the ruling. “The (tribunal) finds (Indigenous Affairs’) position unreasonable, unconvincing and not supported by the preponderance of evidence in this case.”

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