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Update: First Nations Children V. Canada

Posted in: Activism Guide
    Wednesday, January 13, 2021 - 14:25

    The first week of January, Amnesty met with its legal counsel to discuss intervening again at the Canadian Human Rights Tribunal regarding the ongoing discrimination of First Nations children by the federal government in their provision of services. Once again, Canada contests the Tribunal orders and rulings and has filed for legal review. This time, Canada disputes the Tribunal definition of a First Nation child.

    In our work to advocate for respect for Indigenous rights, it is crucial to respect self-determination by not relying on colonial definitions and concepts that can diminish Indigenous rights and sovereignty. In this most recent ruling, the Tribunal expressed the desire to respect Indigenous Peoples’ inherent rights of self-determination and self-governance, including their right to determine citizenship in crafting all remedies to respect Indigenous Peoples’ inherent rights of self-determination and of self-governance including their right to determine who their citizens are. The Tribunal also stated that it recognizes that these rights are inherent to Indigenous Peoples and that they are also human rights of paramount importance.

    In the next couple of weeks, we will share the hearing dates once they are set by the judge. Please make space in your activist calendar to plan time for advocacy. Writing letters to the Prime Minister, Ministers Bennett and Millar, and your local MP holds the government accountable to its laws and international obligations.

     If you are part of a community group meeting virtually, please build in time to watch the Tribunal hearings. We expect these to happen in February. The schedule is here and is continually updated: https://www.chrt-tcdp.gc.ca/operations/upcoming-hearings-en.html.

    Take action now by joining Have a Heart Day 2021

    Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, let Amnesty know that the advocacy of our members and supporters has been seen and appreciated.  Stand with First Nations children, youth and families, so they have equitable opportunities to grow up safely at home, be healthy, get a good education and be proud of who they are!

    WHAT IS THIS CASE ABOUT?

    The federal government is responsible for funding services in First Nations communities that would otherwise be funded by the provincial and territorial governments. However, the federal government’s funding of child and family services in First Nations communities for many years has been at least 22 percent less per child. This underfunding has created a crisis for First Nations children and their families.

    In 2007, the Assembly of First Nations and the First Nations Child and Family Caring Society brought a complaint to the Canadian Human Rights Commission. They were referred for a hearing before the Canadian Human Rights Tribunal, alleging that the underfunding of child welfare services for children living on reserves is discriminatory under the Canadian Human Rights Act.

    Eight years later, the Canadian Human Rights Tribunal rendered its landmark decision in January 2016. The Tribunal found that the federal government’s underfunding of child welfare services on First Nations reserves was discriminatory under the Canadian Human Rights Act. It ordered the government to “cease its discriminatory practices” and reform its funding system to provide for the needs of Indigenous children. The Tribunal also ordered that the federal government “take measures to immediately implement the full meaning and scope of Jordan’s Principle,” which states that services and programs for children may not be delayed or obstructed by jurisdictional disputes between different government departments or other levels of government. 

    AMNESTY INTERNATIONAL’S LEGAL CHALLENGE

    Amnesty International intervened in this case at the request of Cindy Blackstock, executive director of the First Nations Child and Family Caring Society. We argued that the Canadian Human Rights Act must be interpreted consistently with Canada’s international obligations. International law strictly prohibits discrimination against an individual or group because they are Indigenous. Canada also has obligations under international law to protect children. These obligations require the government to consider the best interests of First Nations children in all of its actions, including by preserving their family environment and protecting their cultural identity through the provision of appropriate child welfare services. Finally, Amnesty International’s submissions specified that where an individual’s international human rights are violated due to discrimination, they are entitled to timely and effective remedies, including the financial and other resources necessary to structure programs, services and products that meet human rights standards.

    STATUS OF THE CASE

    In 2019, the Canadian Human Rights Tribunal ruled that Canada willfully and recklessly discriminated against First Nations children and ordered Canada to monetarily compensate First Nations children, youth, and families with the maximum allowable amount under the Canadian Human Rights Act. In October 2019, the federal government applied for judicial review of this decision, stating that the Tribunal did not have the jurisdiction to award this compensation because of a lack of identifiable children who experienced harm. On November 25, 2020, the CHRT released 2020 CHRT 36 ruling on the groups of children eligible to receive services through Jordan’s Principle. The CHRT ruled that cases meeting any one of four criteria are eligible for consideration under Jordan’s Principle. Canada contested and appealed this ruling and asked for another legal review on December 22, 2020.

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