First Nations Child and Family Caring Society

First Nations Child and Family Caring Society - Updated

What Happened

19 January 2017 - Updated study.

Chronic underfunding of child and family services for 163,000 First Nations children prompted First Nations Child and Family Caring Society (the "Society") to file a discrimination complaint against Indian and Northern Affairs Canada (INAC) with the Canadian Human Rights Tribunal in 2007. The Society argued that First Nations children on-reserve receive at least 22 per cent fewer funds as compared to non-Aboriginal children. INAC argued that discriminatory funding is permissible because First Nations children and families are the only services for chiildren and families funded by the federal government.

The Society alleged that the federal government retaliated by excluding the Society's Executive Director Cindy Blackstock from meetings, resulting in a second complaint against INAC for reprisal which is illegal under the Canadian Human Rights Act. Documents later obtained by Blackstock show that INAC officials had also been monitoring her professional and personal life.

In January 2016, the Canadian Human Rights Tribunal (“Tribunal”) released its decision finding that the federal government had failed to fund child and welfare services adequately, and provide access to timely services to First Nations children.

In February 2016, the Minister of Justice indicated that she would not appeal the case. The FNCFCS has submitted a proposal outlining steps the federal government can take to address the lack of services for child welfare systems on reserves.


In February 2007, the Society and the Assembly of First Nations (AFN) filed a discrimination complaint with the Canadian Human Rights Commission against Indian and Northern Affairs Canada (INAC)- now called Indigenous Affairs and Northern Development Canada

The Canadian Human Rights Commission (CHRC) is an independent government body that oversees the Canadian Human Rights Act. It investigates complaints about discriminatory practices arising under federal jurisdiction, which includes the services provided to First Nations people living on reserve.

The complaint alleged that INAC funding for First Nations child and family services at the federal level was significantly less than funding for off-reserve children in provincial government regimes. The Society and the AFN argued that the underfunding of services for on-reserve First Nations children was discriminatory as a "service customarily available to the public" under section 5 of the Canadian Human Rights Act.

In October 2008, the Commission referred the case to the Canadian Human Rights Tribunal for a hearing. This step occurs when the Commission has determined that there is sufficient evidence to support the complaint.

In 2009, the Harper government appointed a new Chair to the Tribunal, Shirish P. Chotalia, who took over the management of the case and introduced last-minute procedural changes that were strongly objected to by the parties. In December 2009, the government introduced a motion to dismiss the case on a preliminary basis, arguing that the CHRC had no jurisdiction to hear the case.  

Exclusion

The Society alleges that between 2008 and 2009 INAC retaliated by excluding the Society’s Executive Director, Cindy Blackstock, from meetings between INAC and other Aboriginal leaders. The Society believes that this exclusion occurred as a form of retaliation in response to its human rights complaint.

For example, in December 2009, Blackstock was invited by the Chiefs of Ontario as a technical aid to attend a meeting at INAC regarding child welfare funding in Ontario.  Upon her arrival at the meeting, Blackstock alleges that an INAC official refused to meet with the Chiefs of Ontario if Blackstock was present.  She also alleges that the official stated that he was aware that she had some “issues” regarding child welfare, including a human rights complaint.  Blackstock was made to wait outside of the meeting.  Blackstock further alleges that another similar incident of exclusion occurred in 2008 and that this adverse treatment contrasts the working relationship she had with INAC prior to submitting the human rights complaint.     

In December 2009, the Society asked the Tribunal for permission to amend its complaint to include its retaliation allegations. The Society argued that by excluding Blackstock from meetings, INAC had treated it in an adverse and prejudicial manner and that this treatment constituted an act of retaliation against the Society.  The Canadian Human Rights Act prohibits retaliation against human rights complainants.

Delays

In June 2010, Tribunal Chair Chotalia began hearing the case, but the case soon stalled. A year later, Chotalia had held no further hearings, issued no decision and refused to consider the Society’s motion to add the retaliation allegations.  Since the retaliation complaint had to be filed within a year, the Tribunal’s delay forced the Society to re-file its retaliation complaint with the Canadian Human Rights Commission in February 2011 in order to preserve its right to make the complaint.  The acting Chief of the Canadian Human Rights Commission publicly criticized the Tribunal for inordinate delay.

Faced with the Tribunal’s lack of action, in February 2011, lawyers for the Society made the unprecedented decision to apply to the Federal Court of Canada and request that the Court force the Tribunal to hold hearings into the merits of the case.

Tribunal decides case unfairly

Less than a month later, Chair Chotalia dismissed the first complaint, finding that INAC was not responsible for discriminatory funding practices.  Chotalia did not hear the full case, but reasoned on a preliminary basis that, as a matter of human rights law, federal funding of services for on-reserve First Nations children could not be compared with the provincial funding of comparable services for off-reserve children.

In April 2011, the Canadian Human Rights Commission applied to the Federal Court of Canada for a judicial review of the Tribunal’s decision. The Commission alleged that the Tribunal had applied the law incorrectly and further that the Trbinal had erroneously failed to conduct a full inquiry into the merits of the complaint, thereby violating basic principles of procedural fairness. 

Federal Court overturns Tribunal 

In April 2012, the Federal Court ruled that the Canadian Human Rights Tribunal had decided the case unfairly by dismissing a complex case of critical importance without hearing the full case on the merits, basing its decision on extrinsic evidence that was not properly introduced.

The matter was sent back to the Tribunal for a new hearing with a differently constituted panel.  

In October 2012 the new panel granted the Society’s application, filed in December 2009, to amend the Society’s initial human rights complaint to include the retaliation complaint.  As a result, the Tribunal considered both complaints together.  

INAC Violates Canadian Human Rights Act

In January 2016, the Canadian Human Rights Tribunal released its decision. After almost ten years of litigation and 72 days of hearings, the Tribunal decided that the federal government had failed to fund child and welfare services adequately, and further held that First Nations children do not have access to timely services. (The remedial orders were deferred as at the time of writing, pending the development of an appropriate framework by the federal, provincial/territorial and First Nations leaders.) Following the ruling, the FNCFCS submitted a proposal outlining steps the federal government can take to address the lack of services for child welfare systems on reserves.

Remedial Order – Fall 2016

On September 14, 2016, a Panel of the Canadian Human Rights Tribunal issued an update to the remedial order from the original decision of January 2016 in the Caring Society’s successful challenge to the discriminatory practices found in the Canadian federal government’s provision of First Nations Child and Family Services (FNCFS). The Panel is supervising the federal government’s progress in implementing the Tribunal’s order to cease the discriminatory practices and to reform the FNCFS program and the equivalent Ontario agreement to reflect the Tribunal’s findings. A prior order had also been made by the Panel on April 26, 2016, which directed Indigenous and Northern Affairs Canada (INAC) to provide a detailed report on how the decision was being implemented to provide immediate relief for the affected First Nations Children.

The Panel voiced its displeasure at the failure of the government to provide information on the progress made towards implementation of the decision, the rationale behind steps taken, and any supporting documentation in a timely manner. The Panel encouraged both parties to increase communication and cooperation to ensure reconciliation and effective reforms in the short and long term. However, the Panel members observed that further orders - in the nature of progress reports and provision of additional information - were required to ensure compliance with its decision.  They also sought to remind the government that the decision was not only about the amount of funding made available to the program, but the method of its allocation and the discriminatory effects that have historically resulted from these schemes. They reiterated the need for funding to be based on an evaluation of the distinct needs and circumstances of First Nations children and families.

It was also made clear that the Panel expects more progress to be made in providing immediate relief through interim measures. They acknowledged that full reform of the FNCFS program will require extensive consultations with various stakeholder groups, but that there are many basic changes that can be made to immediately improve the program which do not require any prior consultations. Among the immediate measures ordered to be taken are committing to not decreasing or restricting funding, to apply a minimum standard of funding, and to stop forcing FNCFS agencies to make up cost overages from their other funding streams, among others.  INAC was also ordered to immediately apply the child-first Jordan’s Principle to all First Nations children in contrast to the restricted approach of INAC, which was limited to children living on reserve with disabilities and short term illnesses.

The Caring Society has shown a willingness to continue to pursue all legal options available to them in order to ensure that the government fully implements the Tribunal’s decision. In its submission to the House of Commons Standing Committee on Finance, where it laid out its own 2017-2018 budgetary recommendations, they declared their intention to take the necessary legal measures to file a contempt order against the federal government if its non-compliance continues.  Indeed, the Caring Society has asked the Canadian Human Rights Commission to seek that the Tribunal’s decision be registered in Federal Court so that a contempt order may be sought.

An NDP motion may have forced the Liberal government into action. On November 1, 2016, the House of Commons unanimously passed the motion introduced by NDP Indigenous affairs critic Charlie Angus, which called for an immediate cash injection of $155 million in funding for child welfare services delivered on reserve. Prior to the vote, Budget 2016 only allocated $71 million in funding for this fiscal year, part of $635 million over five years in new funding. It is not clear whether the additional money this year will affect the overall amount. The motion received the public backing of Justice Murray Sinclair, the former commissioner of the Truth and Reconciliation Commission (TRC), and certainly a failure to support the motion would have raised questions given the government’s public stance on Indigenous issues, their compliance with the Tribunal decision, and implementing the TRC Recommendations.

Relevant Dates:

  • February 2007: The Assembly of First Nations and the First Nations Child and Family Caring Society file a complaint with the Canadian Human Rights Commission, against Indian and Northern Affairs Canada.
  • October 2008: The Commission refers the case to the Canadian Human Rights Tribunal.
  • 2008-2009: The Society alleges that its Executive Director, Cindy Blackstock, was excluded from meetings between INAC and Aboriginal Chiefs.
  • January 2010: The Society amends its complaint to include the allegations of exclusion.
  • 2009-2011: After a successful Access to Information Request filed by Blackstock, she alleges that INAC has been systematically monitoring her private life.
  • 2010: The government-appointed Tribunal Chair, Shirish Chotalia, begins hearing the case. There would not be another hearing for almost a year: this delay was publicly criticized by the acting Chief of the Canadian Human Rights Commission.
  • February 2011: The Society applies to the Federal Court of Canada to force the Tribunal to hold hearings.
  • March 2011: Chair Chotalia dismisses the case on a preliminary basis, upholding separate but unequal services for on-reserve Aboriginal children.
  • April 2011: The Canadian Human Rights Commission applies to the Federal Court of Canada for a judicial review of the decision.
  • April 2012: The judicial review of the Tribunal's decision is successful. The Federal Court overturns the Tribunal, holding that its decision to dismiss was unfair. The complaint is sent back to the Tribunal.  
  • January 26, 2016: The Tribunal upholds Caring Society’s complaint finding that federal government had failed to adequately fund child and welfare services for First Nations children.  Parties are ordered to provide submissions relating to remedy.
  • April 26, 2016: The Tribunal releases its first remedial order.
  • September 14, 2016: Tribunal releases follow-up order requiring INAC to provide additional information, to improve funding allocation and implementation and to appropriately apply Jordan’s Principle to all First Nations Children.
  • November 1, 2016: House of Commons passed NDP proposed motion to increase funding of  $155 million in funding for child welfare services delivered on reserve. This amount is in addition to the $71 million allocation of funding over next five years. 

Role or Position

The First Nations Child and Family Caring Society (the Society) is a national, non-profit organization that provides services to First Nations child welfare organizations.

Implications and Consequences

  • Equality: The impact of the federal government’s policy is that Aboriginal persons living on-reserve do not have the same right to essential public services as persons living off-reserve.  This creates a situation that has a significant and disproportionately negative impact on Aboriginal persons.
  • Fairness: The government's application for a preliminary dismissal of the Society’s complaint and to avoid a full hearing of the case lead to a decision by the Tribunal that the Federal Court of Canada later found to be unfair to the Society. Although the Federal Court overturned the Tribunal’s decision to uphold the government policy, it will continue until a final judicial decision is made and all rights of appeal are exhausted. 
  • Democracy:  That an entire group of vulnerable children should receive inferior services as a matter of federal government policy is contrary to any acceptable notion of the rule of law and democratic governance in a developed country.
  • Free Speech: INAC’s alleged targeted surveillance of Blackstock in her personal and professional life raises serious concerns about intimidation, breach of privacy and personal attacks on individuals who are critical of government policy.  This type of scrutiny can make individuals vulnerable to government retaliation simply on the basis of their political opinions.  It can also create a “chill effect” that causes other Canadians to fear to express opinions that are critical of government policies and decisions.

First published: 23 May 2011

Updates: 1 November 2012; 8 March 2016

Current updated version: 19 January 2017

 

Sources