Reserve kids underfunded, court decides

Posted on April 19, 2012 in Equality Policy Context

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April 19, 2012.   By Teresa Smith And Gemma Karstens-Smith, Postmedia News

A Federal Court judge has opened the door for the federal government to potentially be held legally responsible – and culpable of discrimination – because First Nations residents’ children receive less funding per capita for social services than young Canadians living off reserves.

Justice Anne Mactavish issued a ruling Wednesday that found the Canadian Human Rights Tribunal’s chair erred when she dismissed a 2007 case from the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations.

As a result, she granted the three applications for judicial review of the decision.

The First Nations groups allege the federal government discriminates against aboriginal children by consistently underfunding services on reserves, leading, they contend, to poverty, poor housing, substance abuse and a vast over-representation of aboriginal children in state care.

At the core of the issue is whether the government can be held legally responsible for the circumstances of native children in the child-welfare system.

Under the Indian Act, the federal government is responsible for funding health, education, police services and child welfare on reserves, all of which fall under provincial jurisdiction off reserves.

Research cited by the assembly and the caring society indicates children on reserve receive 22 per cent less funding for services than those who live off reserve.

That distinction was central to the government’s argument that comparing funding from two different levels of government was both “unreasonable” and nonsensical.

In her decision, Mactavish said the tribunal “erred in failing to consider the significance of the government’s own adoption of provincial child-welfare standards in its programming and funding policies.”

The federal government now has 30 days to appeal the ruling. But First Nations groups say they’re hoping for a quick resolution.

“We must all agree that lengthy and costly legal battles are not the way forward,” Shawn Atleo, national chief of the Assembly of First Nations, said in a release.

Cindy Blackstock, executive director of the caring society, had said during the time of the hearing that if the government was allowed to use the comparator argument, “that would basically immunize the government from any discrimination or human rights claim relating to its funding policies and procedures on reserve.”

On Wednesday, she expressed enthusiasm with the ruling. “I’m overjoyed that (Justice Mactavish) looked at the balance of the evidence and saw what many Canadians saw, which is the complete obvious, that what’s happening here is fundamentally wrong.”

Aboriginal Affairs and Northern Development Canada was not immediately available for comment.

Native advocates have also pointed out that three times more First Nations children are being removed from their families today than at the peak of the residential school system in 1949. Then, approximately 8,900 aboriginal children were taken from their families Now, more than 27,500 first nations children are in foster care.

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