CHRT rules in favour of First Nations Children’s Caring Society in discrimination complaint
Posted on behalf of Christian Whalen, Board Member
On Tuesday February 26 the Canadian Human Rights Tribunal released its long awaited decision in relation to the race and ancestry discrimination complaint against Canada filed in 2007 by the First Nations Child and Family Caring Society and the Assembly of First Nations. The complaint alleged that the federal government’s funding formula for child family services to First Nations children on reserve was inadequate to meet their needs and is discriminatory.
The federal government’s policy over decades has been to fund Child and Family Service Agencies on reserve on the basis of provincial spending in relation to children off reserves in the province or territory where the band agency is situated. This formula does not allow for adequate consideration of the needs of children on reserve and within their communities.
The Tribunal held that funding alone can be a service within the meaning of section 5 of the Canadian Human Rights Act but that the department of Aboriginal Affairs and Northern Development Canada is involved in the provision of child and family services to First Nations children on reserve. It held further that First Nations are adversely impacted and in some cases denied services by AANDC, and that race and/or ethnic or national origin are factors in that adverse impact or denial.
The Tribunal held that not only were these adverse effects substantiated but that they “perpetuate historical disadvantages suffered by Aboriginal people’s, mainly as a result of the Residential Schools system”. The Tribunal members took the further step of acknowledging the harm occasioned: “The Panel acknowledges the suffering of those First Nations children or families who are or have been denied an equitable opportunity to remain together or to be reunited in a timely manner. We also recognize those First Nations children and families who are or have been adversely impacted by the government of Canada’s past and current child welfare practices on reserves.”
The Tribunal granted the declaratory relief sought by the complainants and reserved its decision on other remedies pending further submissions from the parties.
The decision is also of interest to child rights specialists given the Tribunal’s reliance on international law standards and obligations in reaching its conclusion. The Tribunal referenced the provisions of the UNCRC, it cited Canada’s Statement of Understanding in relation to the rights of First Nations children, it recalled the Child Rights Committee’s Concluding observations to Canada in response to Canada’s Third and Fourth reports and held that “Canada’s statements and commitments, whether expressed on the international scene or at the national level, should not be allowed to remain empty rhetoric.”
The full decision is available here: http://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/127700/1/document.do