Government faces Aboriginal challenge

OttawaCitizen.com – life – Advocates for human rights and native child welfare join appeal
February 14, 2012.    By Teresa Smith, Ottawa Citizen

Sweet-smelling smoke from a smudging ceremony filled an Ottawa courtroom Monday as a controversial case began that could open the door for First Nations residents to argue they are being discriminated against en masse by the federal government.

With the ceremony aside, the legal wrangling began.

Facts that could prove the federal government is discriminating against aboriginal children by underfunding child-welfare services on reserves need to be heard in court, said lawyers for the Canadian Human Rights Commission.

The commission is one of several groups appealing a 2011 ruling by the Canadian Human Rights Tribunal – which the commission oversees. In that ruling, the tribunal dismissed a discrimination case brought by the Assembly of First Nations and the First Nations Child and Family Caring Society of Canada.

The complaint argued the underfunding of child-welfare services on reserves leads to poverty, poor housing, substance abuse and a vast overrepresentation of aboriginal children in state care.

However, the federal government argues that because it sends funds to band managers – who administer the services – the government cannot be held responsible for the services delivered.

The government also says the question is invalid because it funds services on reserves, while provincial governments are responsible for services to the rest of Canadians, and that comparing two governments is both “unreasonable” and nonsensical.

The “comparator” argument was used in the Human Rights Tribunal’s initial decision to dismiss the case in 2011 before any of the main evidence had been heard.

But First Nations Child and Family Caring Society lawyer Nicholas McHaffie told the court that comparing services to another group is only one “evidentiary tool.”

Human Rights Commission lawyer Philippe Dufresne told the hearing Monday that “the court must look at the facts, examine the services and determine if there is suffering.”

Currently, five per cent of aboriginal children living on reserve reside in care, away from their families. That’s eight times more than other Canadian children, according to 2010 testimony by former auditor general Sheila Fraser.

In 1990, the federal government adopted a policy requiring child welfare services provided to First Nations children on reserves to meet provincial standards, be reasonably comparable with services for children off reserves and be culturally appropriate.

But Fraser’s audits consistently found the federal government “had not sufficiently taken into account provincial standards and other policy requirements when it established levels of funding for First Nations agencies to operate child welfare services on reserve.”

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, has said if the government is allowed to use the comparator argument, it would “immunize the government from any discrimination or human rights claim relating to its funding policies and procedures on reserve.”

More than 9,000 people worldwide are participating in the “I am a Witness” campaign, pledging to watch the proceedings – in person if they can, or on the Aboriginal People’s Television Network, which will be televising the review.

The case continues Tuesday.

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