First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2

January 26, 2016: The Canadian Human Rights Tribunal has released their written decision in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2, finding in favour of the Complainants.

In 2008 the First Nations Child and Family Caring Society of Canada (the Caring Society) and the Assembly of First Nations (the AFN) brought a human rights complaint to the Canadian Human Rights Commission alleging that the then-called Aboriginal Affairs and Northern Development Canada (AANDC) “discriminates in providing child and family services to First Nations on reserve and in the Yukon, on the basis of race and/or national or ethnic origin, by providing inequitable and insufficient funding for those services (the Complaint).”

Doctor Cindy Blackstock, the Executive Director of the Caring Society, has been the key advocate and complainant in this case. Long before bringing the complaint, Ms. Blackstock attempted to work with AANDC to change their discriminatory practices. She co-authored the Wen:De Reports, which were commissioned to examine AANDC’s policies and practices and provide recommendations for reform. She has also authored and co-authored multiple studies and papers on the subject of AANDC’s discriminatory child welfare practices. Unfortunately, despite agreement from all involved parties that AANDC’s policies were inadequate, the reform efforts fell well short of remedying the discrimination felt by First Nations children. In particular, as noted by the Tribunal, the seriously flawed funding model used by AANDC was not dismantled.

This human rights complaint was brought pursuant to Section 5 of the Canadian Human Rights Act (CRHA) which states that it is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public

• (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or

• (b) to differentiate adversely in relation to any individual,

on a prohibited ground of discrimination. It was therefore the task of the Complainants to show that AANDC provides a public service, and that either they deny access to that service to First Nations children, or that they provide a lesser standard of service to children on reserve on the basis of their identities as First Nations children. The Tribunal found that the Complaint was substantiated; that First Nations children and families living on reserve and in the Yukon are denied equal child and family services and/or differentiated adversely in the provision of child and family services.

The Tribunal has ordered AANDC to cease its discriminatory practices and reform its policies to reflect the findings in this decision. AANDC is also ordered to cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan’s principle. Instead of ordering specific remedies, the Tribunal has determined that within three weeks of the date of the decision (on February 16, 2016) the Tribunal will contact the parties “to determine a process for having its outstanding questions on remedy answered on an expeditious basis”.

The Tribunal has the power to award compensation (to a maximum amount of $20,000 per victim of discrimination) but has declined to make such an order until the parties provide more information. Again, the Tribunal will be contacting the parties within 3 weeks of the decision to have its outstanding questions answered by the parties. The Tribunal has also declined to make an order for costs in this decision, but will provide a ruling “in due course”.

The Tribunal took the opportunity to comment on evidence provided to them regarding residential schools, Jordan’s Principle, the 60s Scoop, and other monuments of colonialism. In the close wake of the Truth and Reconciliation Commission Report, this decision provides further hope to those who have been striving for Indigenous equal rights, justice, and reconciliation.

Case Comment and Comprehensive History to follow.