The human rights tribunal over whether the federal government discriminates against Native families by underfunding child welfare on reserves has been shelved while the Feds attempt again to have the case dismissed.

In 2007, the complaint was lodged on behalf of the First Nations Child and Family Caring Society of Canada (FNCFCS) and the Assembly of First Nations (AFN) after the government refused to implement research and solutions on funding inequalities that the government commissioned in 2000 and were presented in 2005.

Then, both FNCFCS and the AFN conducted two research projects that were to identify any funding inequalities and to develop solutions to address those inequalities. The results showed that children living on reserves receive 22% less than those living off reserve in welfare and as a result dramatically more children wound up in foster care.

According to Cindy Blackstock, executive director of the FNCFCS, the society felt it had no choice but to file the complaint after the government walked away from the table particularly as at the time the amount of Native children in care had risen by about 71%.

The research done by the FNCFCS and AFN found more kids are in the system because they are denied services to keep them safely in their family homes. Both of these reviews revealed that there was no funding in either of the funding formulas used by Indian Affairs to provide those services so the only intervention was removal.

“What we were seeing is that there are more First Nations kids in child welfare care today than there was at the height of residential schools by a factor of three,” said Blackstock.

Both groups have alleged that the Government of Canada is discriminating against First Nations children by providing them with a lesser opportunity for safety than other children receive. They are seeking to see the funding formula fixed and they are asking that Indian and Northern Affairs Canada (INAC) who fund on reserve child welfare set up a $120 million trust fund for children who were wrongfully removed during the time of this inequitable funding formula.

Blacksotck said the funding that the FNCFCS and AFN received to conduct the research was the last cent they ever received from INAC and that the AFN’s Child and Family Services funding was cut by 85% within a month of filing the complaint. It has now been cut by 100%. That funding was used to bring together First Nations Agency Directors from across the country to work on these joint-funding solutions and to coordinate national policy on children and family issues with INAC.

At the time the two groups went as far as sending a letter to Auditor General Sheila Fraser, who in 2008 reported that in fact INAC’s funding formula was inequitable.

From there the FNCFCS went to the Human Rights Organization of Canada who assessed the complaint to see whether or not it fit its mandate. On September 30, 2008, a decision was made to refer the complaint to the Canadian Human Rights Tribunal (CHRT).

“This marked a historic turning point because it is the first time in history that the Government of Canada is going to be held accountable in front of a judicial body for its current treatment of First Nations children. All of the testimony is taken under oath and the decision by the tribunal is enforceable in Federal Court,” said Blackstock.

INAC however immediately filed through the Federal Court to have the tribunal thrown out on the basis that a claim can be filed of discrimination on the basis of a good, a service or an accommodation but that they did not fall under any of those categories. Their argument was that funding was not a service and that their job was solely to fund child welfare. The Federal Court however dismissed INAC’s motion.

The tribunal proceedings began on September 14, 2009 under Chairperson J. Grant Sinclair, who, according to Blackstock, was very “keen” on the tribunal going to evidence. The actual tribunal hearing was to begin on November 16.

However, on November 2, the Conservative government appointed a new tribunal chair, Shirish P. Chotalia from Alberta, and suddenly all of the dates for the tribunal were vacated because Chotallia claimed that there was inadequate disclosure to the respondent.

Chotalia then requested that all of the evidence be submitted in by affidavit, which Blackstock said was an enormous feat. They did however manage to get the evidence resubmitted and the hearing dates were set for January.

In December, INAC decided to file to dismiss on the same grounds that it lost on in Federal Court. According to Blackstock, the government has pulled lawyers out of the Residential School Commission in Vancouver to fight this battle for them in Ottawa.

Once again, Chotallia vacated the January dates without notice because she wanted to hear the motion from Canada to dismiss the tribunal in April.

Despite this, Blackstock said she feels the evidence against Canada is so strong that she and her organization will not give up.

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