First Nations Children Still Holding Their Breath After Landmark Victory Before the Canadian Human Rights Tribunal
On January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) released a historic decision finding that Canada is racially discriminating against 163,000 First Nations children and their families by providing flawed and inequitable child welfare services ("FNCFS Program") and failing to implement Jordan's Principle to ensure equitable access to government services available to other children (2016 CHRT 2, CHRR Doc. 16-3003).
The decision marked the end of a nine-year legal battle waged by Canada against the First Nations Child and Family Caring Society and the Assembly of First Nations since they lodged the complaint in 2007. Numerous attempts by Canada to have the complaint dismissed on technicalities and troubling conduct on the part of Department of Justice lawyers who failed to disclose tens of thousands of relevant documents caused significant delays in the case, a litigation strategy that came at an immense cost to Canadian taxpayers. In total, Canada spent well over $5.3 million in legal fees fighting this complaint.
The CHRT's findings against Canada joins the growing chorus of Canadian voices collectively calling for immediate and concrete action by the government to ensure substantial equality for First Nations children. Children have been particularly instrumental in leading the social movement in support of the case. On February 11, 2016, over 600 children marched on Parliament Hill to demand that Canada implement the CHRT's decision without delay, while thousands of other children organised over 40 similar gatherings across the country. Countless more sent Valentine's Day cards to Prime Minister Trudeau urging him to "Have a Heart" for First Nations children.
Despite the children's complete victory before the CHRT and the unprecedented public outcry in support of equality, the new government has still taken no steps to improve the situation of First Nations children living on reserves. This is not for lack of awareness of the discriminatory impacts of the FNCFS Program or how to resolve these problems. As highlighted in the CHRT, Canada has known for nearly two decades that it its child welfare services were not meeting the needs of First Nations families and were driving children into care. More recently, the Truth and Reconciliation Commission's first call to action related to child welfare and urged the government to take immediate action reduce the number of children in care and fully implement Jordan's Principle. While on the day of the release of the decision the Minister of Justice stated "there will likely not be any reason why we would seek judicial review of this decision", at the time of writing this article, Department of Justice lawyers had still not confirmed whether they would be challenging the CHRT decision before the Federal Court. Canada's position internationally regarding the case is also cause for concern. In response to a question of regarding the case by the Committee on Economic, Social and Cultural Rights, which is currently reviewing Canada's human rights track records for the past 10 years, Canada placed more emphasis on an earlier CHRT decision to dismiss the case (2011 CHRT 4, 73 C.H.R.R. D/219) that was later overturned (2012 FC 445, 74 C.H.R.R. D/230; aff'd 2013 FCA 75, 76 C.H.R.R. D/353) than on the CHRT's finding of discrimination. Its reply otherwise vaunted the fact that it had implemented the Enhanced Prevention Focused Approach to funding in six provinces, a funding model that the CHRT found to be discriminatory and which creates incentives to take First Nations children into care needlessly.
While the legal precedent created by the CHRT decision is certainly cause for celebration, it has not yet translated in meaningful change for the over 163,000 First Nations children currently receiving discriminatory child welfare services from the Canadian government. In the absence of the political will or ethical compass to do so, Canada may soon be legally compelled to act by the CHRT which will issues its orders pertaining to immediate and longer term relief remedies in the coming weeks or months.
Anne Levesque, B.A., LL.B., MSt (Oxon) is proud to have been one of the lawyers who represented the
First Nations Child and Family Caring Society of Canada in this case.
1. Hansard, 42nd Parliament, 1st Session, Honorable Jody Wilson-Raybould, Minister of Justice, January 26, 2016. Available online at http://www.parl.gc.ca/HousePublications/Publication.aspx?Pub=Journals&La...
E&Mode=1&Parl=42&Ses=1&DocId=8073490&File=0. It is noted however that in a speech to the Canadian Bar Association on February 20, 2016, the Honorable Jody Wilson-Raybould stated that she should not be seeking a judicial review of the CHRT decision. However, at the time of writing this article, no written confirmation of this has been obtain by Department of Justice lawyers.
2. Replies of Canada to the List of Issues, Committee on Economic, Social and Cultural Rights, fifty-seventh session, dated February 4, 2016. Regarding the decision, Canada simply stated: “On January 26, 2016, the Tribunal released its decision on the merits of the complaint. The Tribunal's finding of discrimination against Canada is being reviewed to determine appropriate next steps”.
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