In a landmark ruling, the Canadian Human Rights Tribunal has found that the federal government discriminates against First Nations children by chronically underfunding child and family services on reserve. The First Nations Child and Family Caring Society decision has significant implications, both for First Nations children and communities, and for broader human rights principles.

Background

The First Nations Child and Family Services Program is intended to provide culturally appropriate child welfare services to families on reserve that are reasonably comparable to the services available off reserve. This Program is managed by Aboriginal Affairs and Northern Development Canada (recently renamed Indigenous and Northern Affairs Canada). The non-profit First Nations Child and Family Caring Society and the Assembly of First Nations filed the complaint under section 5 of the Canadian Human Rights Act. Section 5 prohibits discrimination in the provision of services customarily available to the public. To succeed, the complainants had to prove: that the federal program was a service; that First Nations were adversely impacted by the program; and that race and national or ethnic origin were a factor in the adverse impacts.

Tribunal’s Decision

In its decision rendered on January 26, 2016, the Tribunal upheld the complaint. According to the Tribunal, the Program fails to ensure First Nations child welfare agencies who deliver the services receive sufficient funding to meet provincial standards, which focus on keeping families together, or specific community needs. By providing insufficient funding for preventative measures, the program has, in effect, created an incentive for the agencies to remove children from their families.

The Tribunal further found that the department had known for years that the Program denied adequate services to many First Nations, but neglected to enact reforms. Far from achieving its goals, the Program has reinforced the intergenerational trauma of the Residential School system. As the Tribunal explained, “the fate and future of many First Nations children is still being determined by the government, whether it is through the application of restrictive and inadequate funding formulas or through bilateral agreements with the provinces.”

Aboriginal Affairs argued the Tribunal had no jurisdiction to hear the complaint, because child welfare services are a provincial responsibility and, in its view, the federal involvement in program funding was simply a social policy decision and not out of obligation. Rejecting those arguments, the Tribunal found that Aboriginal Affairs provides a service under the Act by funding child and family services on reserve. In doing so, the federal government exerts significant control over the provision of these services on reserve, even if it does not deliver the services.

Furthermore, Aboriginal Affairs can hardly minimize its role in the provision of child welfare services on reserve in light of the federal government’s constitutional responsibility towards aboriginal peoples. Instead of legislating in this area, the federal government has opted for a programming and funding approach. Aboriginal Affairs “should not be allowed to evade its responsibility to First Nations children and families residing on reserve by delegating the implementation of child and family services” to First Nations agencies or provincial governments.

The Tribunal found that race and national or ethnic origin were a factor in the adverse impacts of the Program. This was unsurprising since the service targeted First Nations on reserve. In providing the service, Aboriginal Affairs was, to say the least, obliged to ensure it did not perpetuate the historical disadvantages suffered by First Nations, the legacy of colonialism and the country’s attempt to assimilate indigenous peoples.

Discussion

Filed in 2007, this complaint has had a long history. In 2011, the former chairperson of the Tribunal dismissed the complaint on the basis that there needed to be a comparator group and, as the federal government provided child welfare to no other groups, there was no chance of success. The Tribunal’s decision was set aside by the Federal Court, which found that a comparator group was not a prerequisite for a finding of discrimination. Upholding that judgment, the Federal Court of Appeal affirmed that the focus of the Tribunal’s inquiry should not have been whether there were comparators, but rather simply whether there was discrimination.

After the complaint was returned to the Tribunal, it was amended to include an allegation of retaliation by Aboriginal Affairs against the Caring Society’s Executive Director for having filed the complaint. A newly composed panel of the Tribunal substantiated the allegation in a separate decision.

The Tribunal’s decision in First Nations Child and Family Caring Society on the merits of the complaint may have implications on human rights jurisprudence more generally. Relying upon Charter equality jurisprudence and Canada’s international legal commitments, the Tribunal effectively imposed a positive obligation on the federal government to reform its First Nations child welfare program to ensure substantive equality for First Nations children and families living on reserve. In other words, the Tribunal has required the federal government to ensure its social program actually fulfills its ameliorative purpose or, at the very least, does not make things worse for the recipients of the benefit.

More specifically, the case may have broader application where the federal government is similarly involved in the provision of other services to First Nations communities. For example, Public Safety Canada provides significant funding to First Nations police services under its First Nations Policing Program. First Nations police services have reportedly struggled to provide adequate services to their communities due to insufficient funding, an issue identified in the Ontario Ipperwash Inquiry, which found that self-administered police services were drastically underfunded. This issue was also addressed in a recent award by an Ontario arbitrator.  Time will tell whether the Tribunal’s analysis in the First Nations Child and Family Caring Society decision is applied to these other contexts.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]