Law Times

Page 9 Law Times • April 29, 2013 Feds fail to stop child welfare complaint Appeal court allows claim about inadequate funding to continue BY SIOBHAN McCLELLAND For Law Times T he government's attempt to stop a complaint of discriminatory funding for child welfare services for children and families on reserves has failed. On March 11, the Federal Court of Appeal found in favour of the complainants in Canada (Attorney General) v. Canadian Human Rights Commission and allowed the matter to proceed. The human rights complaint alleges the federal government is failing to provide proper funding for child welfare services for on-reserve First Nations children. The claim alleges the funding for those services is inadequate, particularly in light of the supports available to children not living on reserves. The case raises important issues as to whether children on reserves face discrimination because they're aboriginal. "The decision validates the importance of searching for substantive equality," says Noa Mendelsohn Aviv, director of the equity program at the Canadian Civil Liberties Association, an intervener on the appeal. She notes the decision allows a complaint to go forward on a very serious allegation of discrimination. "To not have allowed [the complaint] to go forward would have really called into question the integrity of the human rights system." On the initial motion, the Canadian Human Rights Tribunal held that in order for the complaint to succeed, the complainants had to establish adverse differential treatment under s. 5(b) of the Canadian Human Rights Act by making a comparison between the child welfare services provided by the federal government to First Nations children on reserves and similar services provided to others by the same provider. The tribunal found this subsection of the act doesn't permit a comparison between the services provided by two different providers to two different recipients. The tribunal did note that there was provincial funding for children who live off reserve while federal support goes to those living on reserve. However, the tribunal found they "constitute separate and distinct service providers with separate service recipients. The two cannot be compared." As there wasn't a comparator group that also received federal funding for similar services, the tribunal concluded the complainants couldn't succeed and quashed the complaint. At the Federal Court, Justice Anne Mactavish reversed the tribunal's decision. She found the tribunal's interpretation requiring the complainants to point to a similarly situated comparator group was outside the range of acceptability and defensibility. She concluded it was unreasonable for the tribunal not to provide any reasons as to why it couldn't consider the complaint under s. 5(a) of the act that makes it a discriminatory practice to deny a service to any services to other Canadian chilindividual on the basis of a prohibdren. But the complaint suggests ited ground of discrimination. there's a 22-per-cent funding gap Mactavish also held the tribunal on a per-child basis for First Naerred in its interpretation of s. 5(b) tions children on reserves comof the act, particularly the finding pared to those living off reserves. that the complaint couldn't succeed Mactavish also noted the comin the absence of an identifiable plaint alleges "that the funding forcomparator group. mula set out in Directive 20-1 pro"In interpreting subsection 5(b) vides unlimited resources for First the way it did, the tribunal applied Nations children who have been a rigid and formulaic interpretation removed from their homes and of the provision — one that is inare in foster care. However, child consistent with the search for subwelfare services designed to allow stantive equality mandated by the abused or neglected children to reCanadian Human Rights Act and main safely in their homes with the Canada's equality jurisprudence," necessary support services (known she wrote. as 'least disruptive measures') are The Federal Court of Appeal upallegedly grossly underfunded. The held Mactavish's decision. It noted result of this is that a dispropordiscrimination is a "broad, factbased inquiry" that requires "'going 'Comparator groups can be useful evidentiary tionate number of First Nations behind the facade of similarities and tools but they're not the end of the analysis,' says children are removed from their homes, thus perpetuating the legadifferences' and taking 'full account Nicholas McHaffie. cy of the residential school system." of social, political, economic, and Aviv says it's very important for the complaint to go historical factors concerning the group.'" Therefore, the court said the relevance and significance of particular ahead. "There is a very serious allegation that the fundfacts, such as the existence or non-existence of a com- ing of child welfare services for First Nations children living on reserve has been discriminatory and has resulted parator, would vary according to the circumstances. Nicholas McHaffie, counsel on the appeal for First in the removal of a shockingly high number of children Nations Child and Family Caring Society, says evidence from their homes." Aviv says the complaint alleges that, as a result of inof a comparator group is just one factor the tribunal can look at but notes the real issue is whether there's dis- adequate funding, children aren't able to remain in their homes where families are in crisis. "In the absence of crimination. "Everything that is looked at with respect to compara- funding for those services to help those children remain tor groups and other forms of evidence, direct evidence, safely in their homes, they've been removed." McHaffie hopes the decision means the matter can are all just the various evidentiary ways in which you can proceed. In the long term, he hopes the conditions for establish that there is discrimination," he says. "One doesn't need to spend a lot of time focusing on: on-reserve children will improve and they'll have "the Is there a comparator group, is there not a comparator opportunity to be offered services that a lot of us off regroup. Comparator groups can be useful evidentiary serve and in other parts of Canada take for granted." According to McHaffie, the effect of the underfunding tools but they're not the end of the analysis." Aviv notes other evidence that would help in estab- of child welfare services on reserves is dramatic. "Based lishing discrimination involves comparing the recipi- on the evidence, we've seen that where there are insuffients of services or other service providers. As well, she cient services and/or where the services are directed in the says there could be evidence of the reliance on or use wrong direction, the result is that there are much higher of stereotypes, the perpetuation of a historic disadvan- levels of First Nation children on reserve being taken out tage or differential outcomes or impacts on the affected of their homes, being placed in foster care, than there are elsewhere in the nation. It's a situation that can't continue." group. Lawyer Dianne Corbiere, whose firm acts as counsel The complaint itself has been ongoing since 2007. McHaffie says the appeal court's decision "allows a claim at the tribunal hearing, says the complaint is an importhat has been far too long in the process to finally go tant one as it's about the most vulnerable members of soahead to a hearing that is long overdue and . . . to finally ciety. "There's been an ongoing policy intervention that allow the assessment of this important discrimination has contributed to where we are in the child welfare system. Our child welfare reality is very much like our crimclaim to be heard." As noted in Mactavish's decision, the government's inal incarceration reality and our results are abysmal." The tribunal is currently hearing the complaint with funding formula aims to ensure that First Nations chilLT dren living on reserves receive a comparable level of dates scheduled into the late summer. Ontario appeal decision on taking up land may influence other provinces BY JENNIFER BROWN Law Times T he Ontario Court of Appeal says the province can take up land for mining and forestry without conducting separate consultations with the federal government. On March 18 in Keewatin v. Ontario (Natural Resources), the Ontario Court of Appeal confirmed that in exercising its rights and powers as a beneficial owner, Ontario isn't subject to federal consent when taking up Crown land for resource projects. However, it must ensure its actions on behalf of the Crown are consistent with the promises made to First Nations respecting the duty to consult. "I think it's a good decision in the sense that it provides greater certainty to everyone, essentially, to resource developers, government, and First Nations. I think it's positive in that sense," says Terri-Lee Oleniuk, a lawyer with Osler Hoskin & Harcourt LLP in Calgary. Oleniuk called the judgment "persuasive and well-reasoned" and one that's likely to broadly apply in other jurisdictions in cases involving interpretation of the Constitution and treaties. It's binding in Ontario only. "Of interest to us were the Treaty 6 First Nations intervening and making submissions to the natural resources transfer agreements and how it might apply out here," says Oleniuk. At issue in Keewatin was whether Ontario had the right to take up the Keewatin lands and thereby limit treaty harvesting rights without first www.lawtimesnews.com getting the federal government's approval. In 2005, the Grassy Narrows First Nation commenced an action to set aside approvals Ontario had granted to Abitibi-Consolidated Inc. to carry out forestry operations on the Keewatin lands governed by Treaty 3. For various reasons, the trial judge found Ontario didn't have the right to take up the Keewatin lands within the boundaries of Treaty 3 without receiving authorization from the federal government. In its decision, the Ontario Court of Appeal noted the trial judge "made many errors" as the original interpretation didn't take into consideration the notion that a two-step process involving consultation by both the province and the federal government is unnecessary. The court also noted that "leaving meaningful constitutional space for the exercise of provincial jurisdiction . . . without federal control . . . fosters direct dialogue between the province and Treaty 3 First Nations. Such dialogue is key to achieving the goal of reconciliation." LT

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