Human Rights court case for First Nation children protection agencies put on hold again
Feds put human rights probe of funding for aboriginal kids in limbo
By Mia Rabson, Winnipeg Free Press - January 23, 2010
OTTAWA — A human rights investigation into whether Canada discriminates against aboriginal kids by chronically underfunding the child welfare system has been sidelined while the federal government argues the case is not a matter of human rights.
The Canadian Human Rights Tribunal was to have resumed hearings of a complaint this week. But the tribunal chair shelved that plan after the department of Indian and Northern Affairs Canada launched a motion to have the entire case dismissed, saying the allegations do not "fit within the bounds of the Canadian Human Rights Act."
The First Nations Child and Family Caring Society of Canada launched its complaint three years ago, alleging Ottawa spends 22 per cent less for child welfare on reserves than the provinces spend for the service for kids who live off-reserve. The lack of funding is blamed for a lack of services for aboriginal families and more kids being taken away from their parents.
The society says more than one in 10 aboriginal kids in Canada are in care, compared to less than one in 100 non-aboriginal kids. It notes there are more kids in care in Canada today than there were living in residential schools at the height of the schools' existence.
The financial findings have been backed by the auditor general of Canada and in a number of reports and studies on the subject. Several judicial inquiries in Manitoba have also raised the issue of federal funding in investigating the deaths of children in care.
"This is discrimination," said Cindy Blackstock, executive director of the society.
But the federal government argues the case falls out of the jurisdiction of a human rights complaint.
"Specifically, Canada does not agree that allegations in the complaint constitute discrimination within the meaning of the Canadian Human Rights Act," said an INAC spokeswoman.
INAC argues the complaint "inappropriately" bases its underfunding allegation on a comparison to provincial funding, which is outside the control of the federal government. It also argues it does not directly provide the services, but rather provides funding to the provinces, which oversee the delivery of services through a series of child welfare agencies.
The tribunal chair agreed to hold hearings on INAC's request for a dismissal and suspended hearings into the complaint itself until after this issue is dealt with.
The hearing on the dismissal will be held April 6.
Last fall a federal court dismissed the federal government's case to have the courts stop the hearing on the same grounds. The government is appealing the decision and that appeal will be heard in March.
Blackstock said the government must believe it will lose at the tribunal if it is trying this hard to stop the hearings on a technicality.
"This is not a case that should be decided on a legal technicality," said Blackstock. "This case must be heard on its merits."
INAC has signed new funding arrangements with five provinces based on a new model for child welfare that focuses on prevention rather than apprehension. The INAC spokeswoman said the tribunal situation is not preventing Ottawa from continuing to negotiate additional agreements.
Manitoba has long been waiting for more money from the federal government but, thus far, has not been among the provinces getting a new funding agreement.
Manitoba Family Services Minister Gord Mackintosh was livid last fall when Manitoba was overlooked for additional funding again in 2008. The province was hoping for at least $22 million, funding that would have helped hire 200 additional social workers for aboriginal agencies.