Amnesty International was represented in this case variously by Justin Safayeni, Owen M. Rees, Kathrin Furniss, Patricia M. Latimer, and Vanessa Gruben.
WHAT IS THIS CASE ABOUT?
Under the Constitutional division of powers, the federal government bears the responsibility of funding services on First Nations reserves that in other communities would generally 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 than what provincial governments dedicate for child protection services in other, predominantly non-Indigenous communities. This underfunding has created a crisis situation for First Nations children and their families. The persistent underfunding has limited the child and family services available in many First Nations communities to the point that the removal of children from their families, meant to be strictly a last resort, has became the only option available when families are unable to provide adequate care.
In 2007, a complaint that the Assembly of First Nations and the First Nations Child and Family Caring Society had brought to the Canadian Human Rights Commission was 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 (CHRA). At first instance, the Tribunal dismissed the case, determining that to find discrimination under the CHRA, adverse treatment of First Nations children must be established based on a comparison with a group that receives the same service from the same service provider. Because child welfare services in predominantly non-Indigenous communities are the responsibility of provincial governments, the Tribunal agreed with the federal government that it should be shielded from the complaints of discrimination. This issue was finally resolved in 2013 by the Federal Court of Appeal, which rejected the government’s position. The case was finally heard on its merits by the Canadian Human Rights Tribunal. The hearing wrapped up in October 2014.
AMNESTY INTERNATIONAL’S LEGAL CHALLENGE
Amnesty International intervened in the First Nations Child and Family Caring Society Case at the Federal Court , Federal Court of Appeal and Canadian Human Rights Tribunal.
At the Federal Court and Federal Court of Appeal, we argued that the Tribunal’s reason for initially dismissing the case was fundamentally inconsistent with Canada’s binding international human rights commitments. These obligations include protecting children through child welfare services (including preserving the integrity of the family and the child’s access to his/her culture); the obligation to ensure that service provision is not discriminatory; and providing effective remedies for discrimination where it is alleged to exist. International law states clearly that Canada cannot rely on its constitution or internal division of powers to avoid international legal obligations as it attempted to do in this case.
At the Canadian Human Rights Tribunal, we submitted again that the CHRA 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 a series of 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 individual’s international human rights are breached through discriminatory practices, they are entitled to timely and effective remedies, which include committing the financial and other resources necessary to structure a program that meets human rights standards.
STATUS OF THE CASE
Eight years after the complaint was initially filed, 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 CHRA. It ordered the government to “cease its discriminatory practices” and reform its funding system to adequately provide for Indigenous children’s welfare needs. The Tribunal also ordered that the federal government “take measures to immediately implement the full meaning and scope of Jordan’s principle,” which requires that government actions to meet children’s needs to not be delayed or obstructed by jurisdictional disputes between different government departments or different levels of government. The Tribunal also announced that it will initiate a process to address the longer term, systemic reforms sought by the Caring Society and the Assembly of First Nations.
In coming to its conclusions, the Tribunal took careful consideration of Amnesty International’s submissions, noting that “Canada’s statements and commitments, whether expressed on the international scene or at the national level, should not be allowed to remain empty rhetoric … Substantive equality and Canada’s international obligations require that First Nations children on-reserve be provided child and family services of comparable quality and accessibility as those provided to all Canadians off-reserve, including that they be sufficiently funded to meet the real needs of First Nations children and families and do not perpetuate historical disadvantage.”
In 2019, the Canadian Human Rights Tribunal ruled that Canada wilfully 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 filed an application 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 harm (meaning a lack of identifiable children who experienced harm). The federal government also applied for a stay to the compensation order made in the 2019 ruling until the judicial review was completed, but this was not granted by the Federal Court. Given that the stay was not granted, as of February 2020, the Attorney General of Canada is in the process of preparing a framework for the compensation ordered by the Tribunal in 2019.
Final judgment of the Canadian Human Rights Tribunal (26 January 2016)
“Open Letter on Discrimination Against First Nations Children” (23 February 2017)
“Celebrating a great day for human rights in Canada” (26 January 2016)
“An historic moment for the rights of First Nations Children” (20 January 2016)
“Amnesty International supports Our Dreams Matter Too” (9 June 2014)
“Invasive surveillance of human rights defender Cindy Blackstock” (29 May 2013)
“Canada: ‘Today is a bright day for First Nations children’” (30 November 2012)
“Children’s rights denied by indifference and legal technicalities” (27 April 2011)