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This article was published 18/4/2012 (3033 days ago), so information in it may no longer be current.
OTTAWA -- A judge has ordered the Canadian Human Rights Tribunal to proceed with a hearing to determine if the federal government is violating the human rights of aboriginal children with its child welfare program funding.
The tribunal chairwoman dismissed the case more than a year ago before hearings were held. Shirish Chotalia agreed with a federal government assertion that because Ottawa did not fund child welfare services to anyone else, it could not be said to be discriminating against First Nations children.
But Justice Anne Mactavish disagreed with Chotalia's assessment Wednesday and ordered a hearing with a new panel involved.
In her 109-page ruling, the Federal Court judge said the tribunal's decision was not reasonable because to require a comparison group receiving the same services from the same service provider in every case is contrary to the intention of the Canadian Human Rights Act. Mactavish said requiring such a standard "would deny the protection of the Act to individuals and groups who have been victims of discriminatory practices if they are unable to identify a suitable comparator for the purposes of their complaints."
She also found the tribunal seemed to ignore the fact Ottawa had adopted the provincial standards for child welfare as the appropriate comparison for its child welfare programs.
Mactavish was not ruling on the merits of the human rights complaint, just on whether the tribunal should have held a full hearing to decide the case.
The case dates back five years when the First Nations Child and Family Caring Society first filed a complaint with the Canadian Human Rights Commission. The society alleged chronic federal underfunding of child welfare services on reserves was a violation of the human rights of aboriginal children.
Repeated studies and investigations have found the amount of money Ottawa spends for child welfare on reserve is far below that of the provincial governments, which are responsible for off-reserve kids. It was estimated Ottawa spends about 78 cents for kids on reserve as provinces were spending for kids off reserve.
The result, the society and other child welfare experts allege, is a higher proportion of kids on reserve being taken into care compared to off-reserve kids because the services that can prevent abuse and neglect are not available. More than 80 per cent of children in care are aboriginal.
The Canadian Human Rights Commission ruled the application deserved a full hearing and forwarded it to the tribunal in 2008. The federal government attempted to have the courts quash the case but that did not happen. Finally in March 2011, the new chairperson of the tribunal ruled in favour of the government's request to dismiss the case entirely. Cindy Blackstock, executive director of the Caring Society, was thrilled with the news.
"The government's only hope is to get out of this through one of these legal loopholes and the federal court has just taken away one of the big ones," she said.
A spokesman for Aboriginal Affairs Minister John Duncan said the government respects the decision but will review it and explore its next steps.
"In the meantime, we will continue moving forward with willing partners to make progress with respect to child and family services," said Jason MacDonald.
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