First Nations Child and Family Caring Society Decision Expected

A decision from the Canadian Human Rights Tribunal on the complaint of the First Nations Child and Family Caring Society (“FNCFCS”) against Indian and Northern Affairs is expected this month. The Government of Canada, under Stephen Harper, tried to block this complaint from being heard on the merits, and used every legal tool available to delay and complicate the proceedings. Let's hope those days are over.

Filed in 2007, the basic allegation of FNCFCS is that the Government of Canada under-funds child welfare services for on-reserve First Nations children. Provinces fund child welfare services at a higher level, and FNCFCS says that the federal government's under-funding of child welfare services has a systemic discriminatory impact on the lives of Aboriginal children living on reserves.

After first trying to prevent the Canadian Human Rights Commission from referring the complaint for hearing, in 2011 the Government of Canada asked the Tribunal to dismiss the complaint on a preliminary motion. Canada argued that the complaint was not properly grounded in the law because: (1) funding is not a service within the meaning of the Canadian Human Rights Act, and (2) the complaint relies on an improper comparison between federal and provincial governments.

Tribunal Member Shirish Chotalia agreed, and dismissed the complaint on the grounds that the Act does not permit a comparison between services provided by two different service providers to two different sets of recipients (73 C.H.R.R. D/219). In other words, FNCFCS cannot compare services provided by the federal government to on-reserve children to services provided by provincial governments to off-reserve children. Chotalia concluded that, in the absence of a proper comparator group, there could be no finding of adverse differential treatment against the Government of Canada, and so the complaint could not proceed.

In April 2012, the Federal Court of Canada overturned this Tribunal decision (74 C.H.R.R. D/230), breathing some common sense into interpretation of the Act. The Federal Court pointed out that there are many complaints in which a direct comparison is not possible or relevant. The Court noted that comparison is an evidentiary tool that can illuminate how discrimination works in a particular case. But it is not a requirement of the law.

With respect to Aboriginal people, the situation is distinct. The Government of Canada provides some services only to Aboriginal people on reserves. Similar services – health, education, child welfare – are provided to other Canadians by provincial or territorial governments. If the Canadian Human Rights Act cannot apply when Aboriginal people wish to complain that a service provided only to them is so deficient that it constitutes systemic discrimination, the Act cannot respond to the realities of their lives.

When the Government finally, in 2007, repealed the statutory bar to human rights complaints being filed against Band Councils or the Government of Canada when they were acting under the Indian Act, Minister Jim Prentice said that Aboriginal people could now file complaints regarding access to services or the quality of services available to them on reserve. But before the Tribunal and the Federal Court, the Government of Canada argued exactly the opposite. Aboriginal people cannot complain about the quality of a service provided only to them – said the Government of Canada – because they must make a comparison, and they have no other group to compare themselves to.

The Federal Court found this interpretation unreasonable because it excludes First Nations people from human rights protection when services are provided only to them. In March 2013, the Federal Court of Appeal (76 C.H.R.R. D/353) upheld Federal Court's decision, and the complaint finally proceeded to a hearing on its merits.

Soon we will find out what the Tribunal has decided on this ground-breaking issue. We will find out whether the Canadian Human Rights Act can provide an effective legal remedy for on reserve First Nations people when they are discriminated against. But, no matter which way the Tribunal rules, this is the moment for the new Government of Canada to step up and provide adequate funding for basic public services on reserves. Harper's administration obstructed the fulfillment of the rights of Indigenous peoples in many ways and in many venues. Let's hope that the new Ministers of Justice and Indigenous Affairs will sweep that practice away, and give us a new path. 

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