Law Times

Law Times • May 4, 2015 Page 9 www.lawtimesnews.com Decision on First Nations child welfare services expected soon BY shannon Kari Law Times he Canadian Human Rights Tribunal will soon release a decision on whether the federal government is violating the hu- man rights of aboriginal children on reserves more than eight years after the initial complaint. The tribunal will reportedly release its decision in the coming weeks in a landmark case over the level of funding for child and fam- ily services on reserves. The First Nations Child & Family Caring Society of Canada and the Assembly of First Na- tions initially filed a complaint in February 2007. It alleged that the disparity in funding for these ser- vices between children on and off reserves is discriminatory and a violation of the Canadian Human Rights Act. It also asserts that au- thorities remove First Nations children too quickly and too often from their homes. At the time they filed the com- plaint, the organizations noted that more than 10 per cent of all status Indian children were in the care of child welfare, a number about 15 times higher than for non-aboriginal children. "There could not be a more important case to come before this tribunal," lawyers for the First Nations Child & Family Caring Society suggested in final written submissions last fall. The national aboriginal organization estimated that First Nations children have cumulatively spent 66 million days in "out-of-home care" from 1989 to 2012 as a result of federal government policies. David Nahwegahbow, counsel for the AFN, says the complaint also seeks to correct misconcep- tions about federal funding in this area. "There is a mistaken impression that First Nations on reserve have a high degree of ser- vices," says Nahwegahbow, a part- ner at Nahwegahbow Corbiere Genoodmagejig in Rama, Ont. Given the "historic disadvantag- es" created by federal policies on reserves, he suggests "substantive equality" would require an even greater level of proportionate funding than the provinces pro- vide for children off reserve. One of the other significant aspects of the case before the tri- bunal is that if successful, aborigi- nal groups could use it to launch similar complaints in areas such as health care and education, says Sarah Clarke, one of the First Na- tions Child & Family Caring So- ciety's lawyers. The organization is asking the tribunal to order the federal gov- ernment to increase its child ser- vices funding on reserves by more than $100 million annually (from an existing amount of about $625 million) and to apply Jordan's principle in its policies. Jordan's principle is a child- first concept approved unani- mously in the House of Com- mons in 2007 as part of a non-binding resolution aimed at preventing delays in health services for on-reserve children as a result of funding disputes between different levels of gov- ernment. The applicants brought the complaint before the tribunal instead of a court because "it has the capacity to award much more dynamic and fulsome remedies. The tribunal has the power to stay involved," says Clarke. The tribunal's ultimate deci- sion will follow a marathon legal proceeding that featured numer- ous attempts by the federal gov- ernment to quash the complaint on procedural grounds. In 2011, the then-chairwoman of the tribunal, Shirish Chotalia, dismissed the complaint, a deci- sion overturned by Federal Court Justice Anne Mactavish. A new panel at the tribunal finally began hearing evidence in 2013. Along the way, in a separate complaint, the federal privacy commissioner rebuked the Jus- tice Department for assigning an employee to collect information from the personal Facebook page of Cindy Blackstock, executive di- rector of the First Nations Child & Family Caring Society. After testimony from more than 25 witnesses, the three- member panel heard final argu- ments last October. An agency controlled by Ab- original Affairs and Northern Development Canada provides funding for First Nations children and families on reserve and in the Yukon. The tribunal heard that the stated goal is to provide com- parable services to that of other children in the country as well as culturally sensitive programs. "[Aboriginal Affairs]' f lawed and inadequate funding results in First Nations children and families living on reserve and in the Yukon receiving fewer and poorer child welfare services than other Canadians in ways that are not culturally appropriate," said the First Nations Child & Fam- ily Caring Society in its final submissions. It also argued that the deaths of some children on reserves could result from inad- equate funding, which it said is 22 per cent less per capita than for those living elsewhere. In its initial procedural argu- ments, the federal government ar- gued the complaint was outside of the jurisdiction of the Canadian Human Rights Act. It also stated there was no "comparator" for discrimination because it doesn't fund child welfare services for anyone other than First Nations. In its final arguments at the tri- bunal, it again maintained it was beyond the scope of the human rights legislation and there was no evidence of discrimination. The tribunal heard the First Nations child and family services program has an annual budget of about $625 million. Any decision on funding for this program is up to the elected government and not the department. How much the depart- ment should spend on a pro- gram or service isn't within the mandate of the tribunal, the government lawyers argued. "The complainants are essen- tially claiming that child wel- fare on reserves could be more effective if it was designed and/ or funded differently, or more substantially. However the task of this tribunal is to determine FOCUS TF: 1.888.223.0448 T: 416.868.3100 YOUR ADVANTAGE, in and out of the courtroom. (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP\RXDUHSXWWLQJ \RXUUHSXWDWLRQRQWKHOLQH,WLVDOODERXWWUXVWZHOOSODFHG Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. www.thomsonrogers.com TRUST ALEKS MLADENOVIC | RICHARD HALPERN | KATE CAHILL Untitled-2 1 2015-04-29 8:42 AM If successful, aboriginal groups could use the case to launch similar complaints in areas such as health care and education, says Sarah Clarke. T The marathon proceedings in First Nations child welfare case February 2007: First Nations Child & Family Caring Society of Canada and Assembly of First Nations file a complaint against the federal government with the Canadian Human Rights Commission. September 2008: The commission turns down the federal government's request to dismiss and refers the complaint to the Canadian Human Rights Tribunal for a hearing. September 2009: First Nations Child & Family Caring Society of Canada begins opening statements. December 2009: New chairwoman of the tribunal, Shirish Chotalia, vacates all hearing dates; federal government files motion to dismiss the complaint. March 2010: Federal Court of Canada declines a federal government request to review the original decision to refer to the tribunal. March 2011: Chotalia grants the federal government motion and dismisses the complaint. April 2012: Federal Court Justice Anne Mactavish finds Chotalia had made legal errors and orders a full hearing at the tribunal before a different panel. February 2013: Hearing begins before three-member panel of the tribunal. March 2013: Federal Court of Appeal turns down appeal by the federal government of Mactavish's decision. May 2013: The federal privacy commissioner finds government officials had wrongly accessed information posted by Cindy Blackstock, head of the First Nations Child & Family Caring Society of Canada, on her personal Facebook page. July 2013: Tribunal grants slight delay as the federal government says it has an additional 50,000 relevant documents it should have disclosed. October 2014: Parties make final submissions to the tribunal, which reserves its decision. See Child, page 11

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