Legalities and technicalities carry little common sense and no justice.
Yesterday, the Canadian Human Rights Tribunal dismissed the case brought forward by the Assembly of First Nations (AFN) and the First Nation Child and Family Caring Society of Canada. The decision was based on mere legalities and technicalities.
The Society and the AFN brought forward the case in 2007, alleging that the Government of Canada discriminates against First Nations by providing inadequate child welfare services to communities.
I use the word “alleging” but this is not an allegation. It is reality. Indian and Northern Affairs Canada (INAC) does not provide the same level of services on-reserve as provincial governments do for non-native children elsewhere in Canada. The same goes for education, special education services, infrastructure, health care and so many other basic needs for First Nations people. Canada just does not provide adequate funding across the board.
However, the decision by the Human Rights Tribunal wasn’t based on these facts but legal interpretation. The Tribunal could not compare a provincially provided service with a federally provided service. According to their decision, the service provided by INAC to First Nations children cannot be compared to the level of service provided by the Provinces, as they are different and separate service providers and service recipients. The Tribunal questioned whether INAC funding to First Nations could even be considered a service. The decision suggests that the federal government can provide a different, albeit inequitable, level of service to First Nations children as long as it does so consistently to all First Nations children on-reserve.
My questions is: when will these entities of justice, ever give First Nations justice? There’s no question, it is discrimination. But because it doesn’t fall neatly into Section 5 (b) of the Canadian Human Rights Act, or doesn’t conform to the definition of differentiation of services, justice is denied again.
The same goes for government decision-making. Why does every decision made by government have to be cleared by legal? It seems that government must always assess the impact of aboriginal rights and the Crown’s duty and liability? Why can’t government make a decision that is in the best interests of First Nations rather than always protecting themselves? Why should it matter that they end up giving a little, and God forbid, move the yardstick in First Nations favour?
In the meantime, our child welfare agencies are chronically under-funded. Many exist, year to year, with crippling deficits. There are very few investments in prevention programs and customary care programs. Foster programs, many times, are voluntary and provided by relatives with little to no support. The need is tremendous.
The Federal Government will not provide any substantial child welfare funding and direct services. Why? Well, the Department of Justice will advise government not to take on further jurisdiction and liability for child welfare. If they fund First Nations child welfare providers any further, government may open themselves up to further claims of First Nations jurisdiction.
Common sense and doing the right thing are thrown out the window.
I’m sure the Tribunal Chair feels bad. I’m sure the Department of Justice lawyers feel bad. They know the reality. They know the need. But at the end of the day, they make their legal argument, then go home to their children, their dog, their white picket fences and their stately homes, all funded by Canadian justice system.
But for First Nations, and the children who bear the brunt of substandard and inequitable funding, justice remains elusive.