Law Times

Page 8 September 12, 2016 • Law timeS www.lawtimesnews.com Decision groundbreaking for indigenous kids, communities Feds slow on child welfare reform, say critics BY YAMRI TADDESE Law Times D espite being ordered to immediately stop its discriminatory child welfare services, lawyers for First Nations child welfare agencies say the feder- al government is dragging its feet to implement changes to its underfunded system. In what many described as a groundbreaking decision, the Canadian Human Rights Tribunal released a decision in January that found Canada's First Nations child welfare funding model "perpetuates the incentives to remove chil- dren from their homes." In an- other unusual step, the tribunal ordered that the government reports back to the tribunal about steps it has taken to rect- ify this and other shortfalls in the system. Along with that decision, the tribunal made a reporting order that required the government to show what it has done to rectify the issue. In April, the tribunal said it was unclear at that point how the government would ad- dress the issues identified in the ruling. "While the panel did request clarification on certain remedi- al items and understood the fed- eral government may need some time to review the decision and develop a strategy to address it, that was three months ago and there is still uncertainty amongst the parties and the panel as to how the federal gov- ernment's response to the de- cision addresses the findings above," wrote tribunal chair- woman Sophie Marchildon. "The panel appreciates that some reforms to the [First Na- tions Child and Family Services] program will require a longer- term strategy; however, it is still unclear why or how some of the findings above cannot or have not been addressed within the three months since the deci- sion. Instead of being immediate relief, some of these items may now become mid-term relief." Anne Levesque, one of the lawyers who represented First Nations Child and Family Car- ing Society of Canada, says the January decision affirmed that First Nations people living on- reserve deserve the same quality of child welfare services as non- indigenous Canadians living off-reserve. "The standard of equality ar- ticulated by the tribunal is what I call transformative equality," Levesque says. "They compared the government's approach to child welfare services as try- ing to paint the walls of a house with a broken foundation. They said you need to destroy the house and build a new founda- tion," Levesque says. But with the recognition that it takes time to build a new foundation, the tribunal also or- dered the government of Can- ada to "cease discriminating immediately," Levesque says, adding that, in the meantime, the government was ordered to inject money into the system to lessen the impact of the dis- crimination. "And that's what they've failed to do," Levesque says. The March 2016 budget, for ex- ample, provided only $70 mil- lion in funding for First Nations child welfare and only $60 mil- lion went directly to services, even though in 2012, the short- fall was estimated to be nearly $110 million, she says. The government, for its part, says it's committed to the well- being of indigenous children and is working on fully imple- menting the tribunal's decision. "Canada has increased exist- ing program funding to $634.8 million over five years to the FNCFS Program to support en- hanced prevention services and increase capacity and resources for front-line service delivery on reserve. It is currently allocat- ing this additional funding as immediate relief investments to service providers," said Shawn Jackson, spokesman for Indige- nous and Northern Affairs Can- ada in an e-mail to Law Times. "Canada has also committed to a full-scale reform of the First Nations Child and Family Ser- vices Program and has started engaging First Nations and oth- er partners to start regional and national conversations about options to overhaul First Na- tions child and family services, including how to respond to items identified in the ruling," Jackson added. Jackson also said the govern- ment is "incrementally" increas- ing funding to agencies. "Funding is being provided to agencies incrementally to allow them time to hire, train and retain staff, based on the availability of qualified social workers and other staff, to ex- pand their prevention program- ming," he said. "This approach in no way means that Canada presumes that agencies lack the capacity to implement immediate relief measures but recognizes that it takes time and support from multiple partners, including provincial or territorial govern- ments and educational insti- tutions, to grow professional capacity of any organization," Jackson added. Errol Mendes, professor of constitutional and international law at the University of Ottawa, says "incremental equality" is insufficient in this case. "How do you address the fundamental rights of First Na- tions in this area if you're say- ing that you'll try and meet the conditions of the ruling by go- ing in tranches?" Mendes says. "Therein lies the big legal issue." Adds Mendes: "If overnight we can, like we've done in the past in different parts of Cana- da, spend billions of dollars to create Olympic venues, etc., can we not do that with child care agencies?" Mendes says whether the government can incrementally pump funds into the First Na- tions child welfare system is an issue that should be argued and decided in a higher court. Levesque says a June case conference meeting between the parties, which was meant to discuss the implementation of the January ruling, was can- celled because of Canada's in- actions. The tribunal chose to cancel the meeting and instead issue another ruling for imme- diate action, she says. "The panel finds there are far more unresolved issues to deal with [than] it had expected and is now questioning the benefit of having a meeting at this time. Therefore, the panel proposes to use its limited resources to ad- dress as many of the outstand- ing issues as it can now," says a letter sent from the tribunal to the parties on June 14. The federal government was also ordered to broaden its ap- plication of the Jordan Prin- ciple, a child-first principle that says whenever there's a dispute between provincial or territo- rial governments and the fed- eral government as to which one of them would pay for a child's care, the government of first contact would bear the costs and later seek reimbursement. Jackson said that, since the tribunal's findings, the gov- ernment has announced $382 million over three years in new funding to provide support to Jordan's Principle and has taken "immediate steps" to implement it. But Levesque says she's found government staff are still unfa- miliar with the principle and "that means that literally every day, First Nations children are being denied services that you and I take for granted." e tribunal's decision noted "that the federal government is in a fiduciary relationship with Aboriginal peoples and has un- dertaken to improve outcomes for First Nations children and families in the provision of child and family services." "On this basis, more has to be done to ensure that the pro- vision of child and family ser- vices on First Nations reserves is meeting the best interest of those communities and, in the particular context of this case, the best interest of First Nations children. is also corresponds to Canada's international com- mitments recognizing the special status of children and Indigenous peoples," said the ruling. It also said, "e purpose of having a First Nation com- munity deliver child and family services is to ensure services are culturally appropriate and reflect the needs of the community." "is in turn may help legiti- mize the child and family servic- es in the eyes of the community, increasing their effectiveness, and ultimately help rebuild in- dividuals, families and commu- nities that have been heavily af- fected by the Residential Schools system and other historical trau- ma," said the decision. Cindy Blackstock, executive director of the First Nations Child and Family Caring So- ciety of Canada, says "Canada's compliance with the January or- der has been far from inspiring. "Its implementation has been marked by vague unilateral ac- tions that lack transparency and accountability. In fact the Cana- dian Human Rights Tribunal is- sued a compliance order against Canada in April noting the slow pace of change and another is expected shortly," she says. e Caring Society is a co- complainant in the case. Black- stock says "although Canada welcomed the decision, its ac- tions reflect a government that thinks it is above the law and children are below the law." LT FOCUS ON HUMAN RIGHTS LAW FOCUS Anne Levesque says a Canadian Human Rights Tribunal decision affirmed First Nations people living on-reserve deserve the same quality of child welfare services as non-indigenous Canadians living off-reserve.

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