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Judge overturns ruling on care for First Nations children

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OTTAWA - A federal judge has ruled the chair of the Canadian Human Rights Tribunal was wrong to dismiss a complaint about child welfare services on reserves without a hearing.

Justice Anne Mactavish issued her ruling this morning.

The case involves a complaint lodged five years ago by the First Nations Child and Family Caring Society alleging chronic underfunding of child welfare services for kids living on reserves was a violation of their human rights.

The case has been in and out of various courts since but the Canadian Human Rights Commission did rule in 2008 it was worthy of a full hearing at the tribunal. In March 2011, a new chair of the tribunal, Shirish Chotalia, dismissed the complaint without a hearing.

She said because the federal government did not provide child welfare services to any other children, it could not be said to be discriminating against First Nations children. Provinces provide child welfare to all children and families off reserve. Ottawa is responsible for kids and families on reserves.

However, Justice Mactavish, in her ruling today, said the tribunal erred in disimissing the complaint for such a reason. Mactavish said the tribunal "a rigid and formulaic interpretation" of the Canadian Human Rights Act when it said there was no group to compare First Nations to, and said that decision was not consistent with the intent of the act.

Because the federal government has adopted provincial child welfare standards in its funding policies, it is not accurate to suggest the children provided for by the province are not a relevant comparison, Mactavish ruled.

The case could now proceed to a full hearing at the tribunal.

Repeated studies have shown funding for child welfare on reserves is far below that available to children off-reserve and results in far lower levels of service. In particular, the lack of funds available for programs that can help families before they are broken up results in far higher rates of children being taken into foster care on reserves than off reserves.

The rate of foster care for reserve children is about eight times that of non-aboriginal children, concluded former Auditor General Sheila Fraser in 2008.

When the complaint was filed, the federal government generally spent about 78 cents on child welfare on reserves for every dollar spent by the provinces for children on reserves.

The federal government has since signed agreements with many provinces to amend its funding arrangements and tailor more programs to prevention however complainants say it is still not doing enough.

In Manitoba, more than 70 per cent of the children in care are aboriginal.

mia.rabson@freepress.mb.ca

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