Law Times

Law Times • sepTember 14, 2009 FOCUS Group alleges government shortchanges funding for native kids Tribunal to consider aboriginal child-welfare dispute BY GLENN KAUTH Law Times A mid a controversy over child-welfare services in aboriginal communi- ties, a pair of First Nations or- ganizations is taking Indian and Northern Affairs Canada to a human rights tribunal over al- leged underfunding of services for kids on reserves. "Contrary to what most Cana- dians believe, First Nations chil- dren actually get less public mon- ey for public services," says Cindy Blackstock, executive director of the First Nations Child & Family Caring Society of Canada. Her agency, along with the Assembly of First Nations, has launched a case before the Cana- dian Human Rights Tribunal to seek redress for the alleged inequi- ty. The case should go to a hearing by October, says Blackstock. "The area where there's a huge shortfall is in services to families to keep their children at home," says Blackstock. "That drives a lot of children into child-welfare care unnecessarily." The issue is one Canada's audi- tor general has also taken up. In her 2008 report, Sheila Fraser noted the proportion of on-reserve kids in care was eight times the rate for children elsewhere and urged the government to take action. "Indian and Northern Af- consultation fairs Canada, in with First Nations and prov- inces, should ensure that its new funding formula and approach to funding First Nations agen- cies are directly linked with provincial legislation and standards, reflect the cur- rent range of child-welfare services, and take into account the varying populations and needs of First Nations com- munities for which it funds on-reserve child-welfare ser- vices," she recommended. According to Blackstock, ab- original kids get 22 per cent less in child-welfare funding from Indian Affairs than children off reserve in the care of provin- cial agencies. She estimates the shortfall adds up to $109 mil- lion per year excluding Ontar- io, which under an agreement with Ottawa delivers child- welfare services on Ontario re- serves. As a result, Blackstock says, First Nations agencies are unable to provide services such as counselling and addictions care for families in crisis, a sce- nario that leads to kids going directly into foster care — often off reserve — instead of getting the help that would allow them to stay with their parents. As an example of an inequity, Blackstock points to Manitoba, which passed a policy statement dictating that all kids in foster care should have safe cribs. The federal government, however, didn't provide funding for the policy on reserve, meaning ab- original children living there did not benefit from it. As well, she says, the federal funding formula bases its pay- ments in part on population, something that doesn't work well on reserves where the number of families in trouble often is higher. Advocates awaiting promised secretariats Continued from page 9 system was the promise of two new secretariats at the commission; one for handling racism and one for disability issues. So far, those secretari- ats remain in limbo, which is a big problem for people like York Uni- versity professor Lorne Foster, who says 50 per cent of human rights complaints involve either race-based concerns or disability. "I'm part of a movement that I think is being decimated be- cause of new legislation," he says. Edwards offered little information on the status of the two secretariats, saying she doesn't know when they'll start up. "It might be the ministry that makes that decision," she says. Still, Murray says the new system has at least had the advan- tage of speeding up the process. "It's a whole new world," she says, noting respondents now have just 35 days to file a full response to a complaint, including a list of witnesses. "I would say that generally, there's some consensus that the new tribunal is working to come up with effective solutions." Laird, too, says the legal support centre has been working hard to meet demands. So far, it has an 80-per-cent settlement rate at mediation and has resolved 220 cases by intervening before the tribunal gets involved at all. "We think that the centre plays a really important role in getting matters resolved," she says. She acknowledges the challenges, however. With an increasing number of matters reaching the hearing and litigation stages, she says the big test will come as complainants in those cases seek representa- tion. Already, the centre has had to cancel a pilot duty counsel pro- gram for people in mediation, a move she regrets but says was neces- sary due to demands on its services. "I will express some concern about whether or not the centre will be able to meet the needs of parties at the hearing stage . . . . I'm con- fident that we're providing a good level of service given the tribunal's straightforward application process." LT Untitled-3 1www.lawtimesnews.com 9/1/09 9:17:05 AM Stacey L. Stevens | David F.MacDonald | Michael L. Bennett Last November, it applied for a judicial review in Fed- eral Court of the Canadian Human Rights Commission's decision to take the case to the Canadian Human Rights Tri- bunal following an investiga- tion of the claims. Among other arguments, 'We all feel a real need to do much better for those kids,' says Cindy Blackstock. "The needs of First Nations children are higher. There's no way around it. That's not equi- ty," says Blackstock. The government is, however, fighting the AFN and Black- stock's group's claim of discrimi- nation on the basis of race and ethnic origin through the alleged funding inequity. the government in court doc- uments says it is inappropriate to compare its funding prac- tices with provincial services off reserve. Federal lawyers also argue that because the human rights commission only has jurisdic- tion to adjudicate providers of a good or service, it should reject the child-welfare case since Indian Affairs is merely a funder to the aboriginal agencies that actually do the service delivery. The commission, however, rejected that argument in its decision to send the case to the tribunal. As a result, the First Nations Child & Family Caring Society of Canada and the AFN will present their bid to the tribunal this fall for new funds to make up the alleged shortfall, along with a $112-million trust fund to help aboriginal kids already affected by the existing system. The case isn't the only con- troversy surrounding aboriginal child-welfare services. Currently, for example, the Anishinabek Nation in Ontario is seeking to develop its own child-welfare law to deal with alleged defi- ciencies in service delivery by the provincial government. Of particular concern to Black- stock are statistics showing that the number of aboriginal children in care now is three times the num- ber of kids who ended up in resi- dential schools. For her, the high numbers aren't due to a greater likelihood of abuse by aboriginal parents but stem rather from ne- glect fuelled by problems such as poverty and substance abuse. As a result, she's calling out for more intervention services by First Nations child-welfare agen- cies, something she argues would require funding. "We all feel a real need to do much better for those kids," she says. "This will achieve just basic equity." LT PAGE 13 Trust [ Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. For over 70 years 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 ormeet with you about any potential referral.We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom

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