The Broadbent Blog


What will it take for Canada to treat First Nations children fairly?

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FOURTH NON-COMPLIANCE ORDER RENDERED BY THE CANADIAN HUMAN RIGHTS TRIBUNAL IN FIRST NATIONS CHILD WELFARE CASE

Two years after the Canadian Human Rights Tribunal (“the Tribunal”) found Canada to be racially discriminating against over 165,000 First Nations children, the Tribunal has issued a fourth non-compliance order against the Federal government on February 1, 2018 (February 1, 2018 Order) or its failure to implement “immediate relief’ measures pending longer term reform. In its 2016 landmark ruling, the Tribunal found the Government of Canada in breach of the Canadian Human Rights Act for providing inequitable child welfare services to First Nations children and their families and for failing to implement Jordan’s Principle (Jordan’s Principle is a child-first initiative aiming to ensure that First Nations children has access to equitable and culturally appropriate services without delay). The Tribunal ordered a series of immediate measures to relieve the most egregious elements of the discrimination whilst longer term reform took place. It is astounding and unconscionable  that two years and four non-compliance orders later, Canada has not complied even with the “immediate relief” measures let alone seriously engaged in long term reform.

In this blog post, Anne Levesque and Cindy Blackstock provide an overview of the most recent non-compliance order of the Tribunal against the Government of Canada suggesting that without serious internal federal government reform, First Nations children will continue to suffer.

Summary of the February 1, 2018 Decision

On the February 1, 2018 Order, the Tribunal has  found that Canada has not complied with the four previous orders and has failed to take the initial steps necessary to end its discriminatory conduct against First Nations children. In particular, the Tribunal admonishes Canada for its continued reliance on the incremental approach to equality that fostered the discrimination and spurred the initial complaint. It also finds that Canada’s focus has been on financial considerations and not the best interests of children. As stated by the Panel Members in the decision, while accounting for public funds is necessary, “it becomes troubling when used as an argument to justify the mass removal of children rather than preventing it…The Panel finds the seriousness and emergency of the issue is not grasped with some of Canada’s actions and responses.”

An “old mindset” and Continued Inaction from Canada

Since the January 2016 decision, the Tribunal has referred to Canada’s “old mindset” or continued use of discriminatory conduct on at least 15 occasions in its decisions.  While Canada makes public statements suggesting it is reforming child welfare; the Tribunal is also strongly urging Canada to reform itself.  For example, in para. 300 of the February 1, 2018 decision, the Tribunal notes “[T]he Panel discussed this at length in the Decision, highlighting how many politicians and Program Managers saying the same things over and over: we need the provinces at the table, we need to gather information, we need to work with our partners, we have to seek approvals, other programs may cover this, etc.. This has been going on for years, yet the Panel found discrimination.” It is abundantly clear that absent serious internal reform, the federal government will continue to lay down a discriminatory path for First Nations children that leads away from their families.

Another theme that emerges from all of the Tribunal’s decisions in this case, including the February 1, 2018 Order, is that Canada has known for decades that its child welfare services are inequitable and not culturally appropriate for First Nations children and their families but has consistently failed to act to remedy the situation despite of the serious and irreparable harms if its conduct on First Nations children and their families. According to the February 1, 2018 Order, Canada has not taken the steps necessary to cease its racially discriminatory conduct even after the release of the 2016 decision. The Panel states “the Tribunal Canada must accept that liability was found and that remedies flow from this finding. The Decision was not a recommendation; it is legally binding.”

Desire to “consult” should not delay equality

The Tribunal also raised concern about Canada’s “overemphasis” on tripartite meetings, the role of the provinces and consultation. The Tribunal makes clear that consultation should not stop, replace or prevent Canada from addressing urgent needs and providing immediate relief. The Tribunal recognizes that consultation is necessary for long-term reform, however Canada has a history of using ‘the need to consult’ or ‘lack of information’ as an excuse for inaction and ongoing breaches of the Canadian Human Rights Act. In particular, the Panel states “the Panel does not think consultation prevents Canada from implementing immediate relief. In so far as Canada’s position is that it cannot unilaterally make decisions, the Panel finds Canada has done so: namely to maintain the status quo in some areas even when the needs of specific communities or groups have been clearly identified and expressed in numerous reports filed in evidence in this case and referred to in the Decision’s findings.”

Canada cannot be left alone to fix its discriminatory conduct

The Tribunal retained jurisdiction over the case to ensure that its orders are meaningful implemented. This means that the Tribunal will closely follow what measures are taken by Canada to comply with the February 1, 2018 Order and issue further remedies as needed. The Panel states: “It took years for the First Nations children to get justice. Discrimination was proven. Justice includes meaningful remedies. Surely Canada understands this”. Pursuant to the February 1, 2018 Order, Canada must prepare and produce a detailed report in June 2018 detailed the measures it has taken to comply with its orders.  The Tribunal may decide to extent this period of monitoring Canada’s action beyond December 2018 if necessary.

The Spirit Bear Plan for Service Equity and Reforming the Federal Government

The February 1, 2018 Order also calls for on Canada to cost out the extent of the underfunding and identify actual needs. This finding by the Tribunal is consistent with the Spirit Bear Plan to End Inequities in Federally Funded Public Services for First Nations Children, Youth and Families (“the Spirit Bear Plan”). Proposed by the Caring Society and endorsed by the Assembly of First Nations, the Chiefs of Ontario and others, the Sprit Bear Plans calls on Parliament to ask the Parliamentary Budget Officer to cost out the shortfalls in all federally funded public services provided to First Nations children (education, health, water, child welfare, etc.) and propose solutions to fix it. More information about the Spirit Bear Plan is available at: www.fncaringsociety.com/spirit-bear-plan

 

Anne Levesque is a human rights lawyer who has worked with a wide range of equality seeking groups, legal clinics and not-for-profit organisations on test case litigation, interventions, appeals, and law reform initiatives. She has advocated for the advancement of equality rights before administrative tribunals, all levels of courts in Canada and international and regional human rights bodies. She earned a LL.B. with a concentration in social justice from the French Common Law Program of the University of Ottawa and a masters in International Human Rights Law from the University of Oxford where she studied as a Ricard Scholar.

Cindy Blackstock is a member of the Gitxsan First Nation,​ has over 30 years of experience working in First Nations child welfare, Indigenous children's rights and child engagement. She is a Professor at the McGill University School of Social Work and the Executive Director of the First Nations Child and Family Caring Society of Canada.