Law Times

Law Times • may 2, 2016 Page 11 www.lawtimesnews.com Underfunding of First Nations child welfare discriminatory: ruling Ruling opens door for cases related to service inequity BY YAMRI TADDESE Law Times I n a ruling some lawyers are calling "groundbreaking," the Canadian Human Rights Tri- bunal recently found the fed- eral government's underfund- ing of First Nations child welfare programs discriminates against Canada's aboriginal people. The case opens up the door to bring similar cases about services in- cluding education, health care, and policing, lawyers say. Most notably, the tribunal in Caring Society v. Canada found that First Nations child welfare services are under- funded, and indigenous chil- dren are removed from their homes in greater numbers than necessary for abuse- or neglect- related reasons. Lawyers say the decision, which came nine years after the complaint was first made, has huge implications and would apply equally to services other than child welfare. "I think it's pretty clear that this is groundbreaking from both a legal and a social perspec- tive. It puts front and centre those who are most at risk in the form of First Nations children and families who require social ser- vices," says Nicholas McHaffie, litigator at Stikeman Elliott LLP. McHaffie was part of the pro bono legal team that acted for one of the applicants, the First Nations Child and Family Car- ing Society, in the judicial review applications that overturned the tribunal's earlier dismissal of the discrimination complaint. He says the latest decision, which was released in January, is "a great first step" in reversing the discriminatory practices. In its decision, the tribunal found the Aboriginal Affairs and Northern Development Canada's child welfare funding formula favours a system that removes First Nations children from their homes. "As indicated above, the provinces' legislation and stan- dards dictate that all alternative measures should be explored before bringing a child into care, which is consistent with sound social work practice as described earlier. However, by cover- ing maintenance expenses at cost and providing insufficient fixed budgets for prevention, AANDC's funding formulas provide an incentive to remove children from their homes as a first resort rather than as a last resort," the tribunal said. Part of the legal hurdle for the applicants included convincing the tribunal and other courts that a fair comparison could be made between child welfare ser- vices offered to other Canadians through their respective prov- inces and the service offered to First Nations communities by the federal government. "The government did ar- gue, all the way through this case, that for the purposes of a discrimination finding under the Canadian Human Rights Act, you could not have a cross- jurisdictional comparison," says Sarah Clarke, counsel for First Nations Child and Family Car- ing Society. "We were successful in dem- onstrating that that's not the case. Both [Federal Court] Jus- tice [Anne] Mactavish and the Federal Court of Appeal agreed that you don't need a mirror comparator group to make a finding of discrimination, and the tribunal echoed that in the decision." Clarke says that finding opens up the door for others to bring similar discrimination com- plaints with respect to "larger- ticket" services such as health care, education, and policing. "These are kinds of services that are provided on reserves largely through federal pro- grams, whereas other Canadians receive those services from their provincial governments," Clarke adds. "It's possible that there will be other claims for housing [and] for education based on the disparity between what the federal government is providing and what's being provided by provinces and territories." The risk of being hit with those kinds of claims is likely the reason the government fought this case as hard as it did, Clarke says. "Every turn we took, they tried to bring a barrier to a hear- ing on the merit. I think that that occurred because we are paving the way and opening the door for cases to come behind us that are much larger financial ticket items," she adds. "Child welfare is what I would consider to be a higher-ticket item compared to housing, education, [and] health care. We're only asking for a nominal amount compared to what those cases maybe asking." There are already two cases at the tribunal dealing with dis- criminatory practices in special education and policing, Clarke also says. In a powerful statement, the tribunal drew a comparison be- tween the current First Nations child welfare program and resi- dential schools. "The [First Nations Child and Family Services Program], corresponding funding formu- las and other related provincial/ territorial agreements only ap- ply to First Nations people living on-reserve and in the Yukon. It is only because of their race and/ or national or ethnic origin that they suffer the adverse impacts outlined above in the provision of child and family services. Fur- thermore, these adverse impacts perpetuate the historical disad- vantage and trauma suffered by Aboriginal people, in particu- lar as a result of the Residential Schools system," the tribunal's panel said. It added: "The panel acknowl- edges the suffering of those First Nations children and families who are or have been denied an equitable opportunity to remain together or to be reunited in a timely manner. We also recog- nize those First Nations children and families who are or have been adversely impacted by the Government of Canada's past and current child welfare prac- tices on reserves." LT FOCUS I think it's pretty clear that this is groundbreaking from both a legal and a social perspective. It puts front and centre those who are most at risk in the form of First Nations children and families who require social services. Nicholas McHaffie Sarah Clarke says a recent ruling opens up the door for others to bring discrimina- tion complaints related to services such as health care, education, and policing. Platinum Sponsor Silver Sponsor Bronze Sponsor Hosted in Partnership With Date: Sept. 8, 2016 Location: Arcadian Court, Toronto 6 p.m. Cocktail Reception 7 p.m. Gala Dinner and Awards Presentation Emcee: Gail J. Cohen, Editor in Chief, Canadian Lawyer/Law Times Dress: Business Attire Innovation. 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