Caring Society and First Nations win decision in Federal Court on child welfare funding

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The First Nations Child and Family Caring Society and the Assembly of First Nations won an important decision today in Federal Court. The Caring Society, AFN and the Human Rights Commission had asked the Federal Court to overturn a decision of the Canadian Human Rights Tribunal made about a year ago (for a quick summary of the Tribunal decision, you can refer back to my blog post). Justice Anne Mactavish granted their application for judicial review, and sent the case back to the Tribunal for re-determination.

The issue at the root of this case is funding for child welfare services for First Nations children on reserve. That funding is provided by the federal government. The Caring Society and the AFN launched a human rights complaint in 2007, saying that the funding for First Nations children is less than what non-Aboriginal children receive from provincial governments. First Nations children end up with fewer services and worse services as a result, and this is discrimination. Three times more First Nations children are in child welfare care now than were ever in residential schools.

Canada has taken many procedural steps in this case to try to have it dismissed before a full hearing with all the evidence. Its main argument was that there can be no discrimination under the Act in this case (the Canadian Human Rights Act), because Canada only funds child welfare services for First Nations, and not for anybody else. There is no “comparator group”, Canada said, and therefore no discrimination.

The Federal Court disagreed. A comparator group is not always required. For example, if an employer has one employee and treats them badly because of their race or gender, that is discrimination (even if there are no other employees to compare them to). In addition, First Nations are in a unique position in the Canadian constitutional order, and they should not be put into a “no man’s land” where they are excluded from being able to make discrimination complaints about government services.

This is an excellent decision from the Federal Court, that supports the right of First Nations people to enjoy programs and services that are just as good as the programs and services that other Canadians receive – a right that is breached all too often.

The child welfare case is not over. In fact, it is truly just beginning, even five years in. The case will now go back to the Tribunal, and we hope that it will finally have a hearing on the merits, with all the evidence. But more importantly, we hope that the Government of Canada takes this opportunity to do the right thing and end the inequities in First Nations programs and services.

By Judith Rae