Native child welfare, yes; judicial overstretch, no

Posted on in Equality Policy Context

TheGlobeandMail.com – Opinion/Editorials
May 01, 2016.   Editorial

Charlie Angus, the NDP indigenous affairs critic and MP for Timmins-James Bay, has a point. But at the same time, he doesn’t.

Mr. Angus has said that an order of the Canadian Human Rights Tribunal has put the federal government under “third-party management.” He’s right that is what has happened. He’s wrong that it’s such a wonderful development.

In January, a decision of the CHRT on indigenous child welfare ordered the government to take steps to equalize child welfare for aboriginal and non-aboriginal children – a goal that is most certainly desirable. Native children in need of protection appear to have benefited less than their non-native counterparts. The CHRT is involved because there is an actual problem in need of a remedy.

However, it is for the government’s budget to allocate spending, if the House of Commons approves it. That is a fundamental convention of the unwritten constitution, going back for many centuries.

In the government’s March, 2016 budget, Bill Morneau, the Minister of Finance, allocated $71-million in new spending toward that goal in 2016-17. But last week, the CHRT said that the government hadn’t done enough to fulfill the tribunal’s remedial order.

The CHRT is not a court, and its 15 members are not judges. They are appointed for fixed terms, and have a history of pushing and ever torquing the boundaries of human rights law.

Carolyn Bennett, the Minister of Indigenous Affairs, understandably shares many of the tribunal’s concerns – and she should. She and the government she serves have an obvious reluctance to appeal the tribunal’s order to a real, actual court.

If it stands, however, Mr. Angus will be right. “The tribunal’s ruling is historic in its finding that a government’s budgetary decisions are no longer the final word,” said the NDP MP. As a result of the ruling, Mr. Morneau has “to go back and revise his original budget,” under orders from the CHRT. This is problematic, to say the least. It’s judicial overstretch from a quasi-judicial body.

The legislative, executive and judicial branches of government owe each other great deference. Tribunals trying to take the place of finance ministers is not the solution to the manifold ills of the aboriginal peoples of Canada. Spending more on native children is something the government should do because it’s the right thing; a rights tribunal should be very careful about how far it expands its power to define rights.

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