“With Chairperson Shirish Chotalia’s decision to dismiss the complaint filed by the Assembly of First Nations (AFN) and the First Nation Child and Family Caring Society of Canada (Caring Society), the Canadian Human Rights Tribunal has in effect rendered open season for the federal government to discriminate against First Nation children on reserves across Canada,” says President Margaret Froh of the Indigenous Bar Association in Canada.
The discrimination complaint filed under the Canadian Human Rights Act (CHRA) by the AFN and the Caring Society is about a lower level of service being provided for First Nation children in foster care on-reserves who fall under the federal jurisdiction, than that provided to children in foster care off reserve by Canada’s provinces.
After two years of unexplained cancelled hearing dates, Chotalia ultimately dismissed this matter on the grounds that while the CHRA allows the Tribunal jurisdiction regarding discrimination in the delivery of “services”, the Chair noted in her decision that “the Act does not allow a comparison to be made between the two different service providers”, namely the federal government and provincial governments. Since Indians on reserve are within the exclusive jurisdiction of the federal government under section 91(24) of the Constitution Act, 1867, First Nation access for discrimination complaints against the federal government to the Tribunal is now effectively denied. Further, because of this constitutional divide in responsibilities, Indians on reserve have no redress to provincial human rights bodies.
Nowhere does the CHRA specifically prohibit a comparison between two service providers, which Chotalia leverages as reason to permit discrimination against First Nation children. “Indeed, the Chair ought to have taken account of the unique constitutional status of First Nations in coming to her conclusion, especially in light of the recent amendments to the Act, which specifically makes the Act applicable to Indians on reserve”, stated Froh.
This decision occurs in the context of a growing number of disturbing developments at the CHRT involving the Chair, which are raising concerns within the legal community.
Source: Indigenous Bar Association in Canada