Setback for child welfare challenge

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This article was published 16/03/2011 (5650 days ago), so information in it may no longer be current.

OTTAWA — The Canadian Human Rights Tribunal says it can’t decide if Ottawa’s funding for child welfare services on reserves is discriminatory because Ottawa doesn’t provide child welfare services anywhere else.

In a ruling Monday, the CHRT dismissed a case brought in 2007 alleging the federal government is violating the human rights of aboriginal children by chronically underfunding child and family services provided on reserves.

Ottawa has sole jurisdiction to fund child welfare for kids living on reserves while the provinces look after all kids who live off reserve. But repeated studies, investigations by the auditor general and judicial inquiries have shown Ottawa spends as much as 22 per cent less per child than the provinces do.

It has affected the level of services kids on reserves can receive, how often social workers can visit them and what programs families can be offered. As a result, on-reserve kids are far more likely to end up in foster care than other kids.

In Manitoba more than 85 per cent of the children in care are aboriginal. About one-third were living on reserves when they were taken into care.

In 2007, the First Nations Child and Family Caring Society and the Assembly of First Nations filed a complaint with the Canadian Human Rights Commission alleging Ottawa was systematically discriminating against aboriginal kids by refusing to provide them the same level of family services as other children received from the provinces.

The commission referred the complaint to the tribunal for a hearing. The federal government challenged the tribunal’s jurisdiction to hear the case in court but was denied both by the original judge and on appeal.

Ottawa then sought a dismissal on jurisdictional grounds from the Canadian Human Rights Tribunal itself.

In her decision, CHRT chairwoman Shirish Chotalia said the human rights act allows complaints only based on services provided differently by the same level of government. She likened it to an employee at one company complaining an employee at another company receives better treatment.

“In order to find that adverse differentiation exists, one has to compare the experience of the alleged victims with that of someone else receiving those same services from the same provider,” she wrote in her 67-page ruling.

Caring Society head Cindy Blackstock was devastated by the decision and said immediately the society will appeal.

“It disturbs me greatly that an allegation this serious is dismissed on a technicality,” she said.

Blackstock said basically what Chotalia has done is tell Ottawa it can provide worse service to aboriginal kids on reserve as long as it doesn’t provide the same type of service anywhere else.

“All we are asking for is that our kids get the same shot to live safely with their families as other kids,” she said. “We will not give up. If we have to take it all the way to the Supreme Court we will.”

Ottawa has been slowly increasing its commitments to aboriginal child welfare in agreements signed with each province. Last July it pledged $177-million over five years for Manitoba reserves to specifically target programs that prevent families from breaking up. Five other provinces have signed similar agreements.

The provincial government was not part of the complaint and said Tuesday it has not assessed the decision and therefore would not comment, including whether Ottawa’s recent cash commitment addresses any discrimination that may have been in play. The Canadian Human Rights Commission will also appeal the ruling, fearing it sends a message aboriginals cannot complain about discriminatory services in any area. Although the provinces have jurisdiction over health care, education and other areas, Ottawa still is responsible for providing those services on reserves.

CHRC director and senior counsellor Philippe Dufresne said this decision could have wide-ranging impacts and must be challenged.

mia.rabson@freepress.mb.ca