By Lloyd Dolha
On September 14th, an historic human rights case came before the Canadian Human Rights Tribunal in Ottawa accusing the federal government of discriminating against thousands of First Nations children in the country’s child welfare system. Filed by the Assembly of First Nations (AFN) and the First Nations Child and Family Caring Society (FNCFCS) two years ago, the case asserts that successive federal governments have discriminated against Aboriginal children in care by underfunding First Nations child welfare agencies compared to their provincial counterparts. As a result, First Nations children and families on-reserve do not have access to the same preventative services offered to off-reserve Aboriginal children or non-Aboriginal children.
Today, there are over 27,000 First Nations children in-care. Of these, about 9,000 are in First Nations care and the remainder are in provincial childcare services. Aboriginal children come into care primarily because of neglect due to poverty. “At its heart, this issue is about caring for the most vulnerable members of our society. Our children deserve the same care afforded to other children in Canada. We hope all parties work together to address the inequities in the system,” said AFN National Chief Shawn Atleo. “We look forward to the fair and independent process offered by an independent Human Rights Tribunal as a step toward solutions that are urgently needed.”
The origin of this inequality is evident in the history of First Nations child welfare agencies. In the 1950’s, the provinces began to deliver child welfare services on reserves in Canada. By the early 1970’s, thousands of First Nations children were adopted out of their communities in what came to be known as the Sixties Scoop, a process that severed the children’s ties to their communities and their cultures. Throughout the 80’s, First Nations demanded greater control and jurisdiction over their own child welfare services to combat the growing trends of substance abuse and suicides among Aboriginal adoptees. By 1990, the federal government approved a First Nations child welfare policy with the goal of providing culturally sensitive child welfare services that were comparable with provincial services. Under that policy, federally funded First Nations child welfare agencies received provincial mandates and provided child welfare services in accordance with provincial standards and legislation. Today, First Nations child welfare agencies receive approximately 22% less funding than provincial agencies.
A May 2008 audit conducted by the Auditor-General of Canada (AOG) and a March 2009 report issued by the Standing Committee on Public Accounts found that the funding formula used by Indian and Northern Affairs Canada is outdated. The formula assumes that each First Nations agency has about 6% of on-reserve children in care; however, the actual percentage of on-reserve children in care ranged from zero to 28 % in 2007. The current formula provides only minimal funding for prevention services and other less disruptive measures such as in-home support. The formula does not take into account agency size or differences in community needs. Moreover, there are significant differences in reported child maltreatment among First Nations versus non-aboriginal children. The 2003 Canadian Incidence Study of Reported Child Abuse and Neglect (CIS-2003) provides reliable data regarding child maltreatment investigations in Canada. Several reports based on the CIS-2003 data have found that neglect is the most common cause for investigations involving First Nations children. In contrast, exposure to domestic violence is a common cause for investigation regarding non-Aboriginal children.
Housing arrangements is another factor driving the overrepresentation of First Nations children in-care. In 79%of substantiated investigations involving First Nations children, the family lived in rental accommodations. Investigating workers described 24% of these housing conditions as unsafe or overcrowded. Nearly half of those investigations involved families whose primary source of income was unemployment insurance or other social benefits (such as welfare). Studies also found 55% of female and 74% of male caregivers abused drugs or alcohol. These findings underscore the need to make more resources available for on-reserve child welfare agencies, not less.
According to INAC figures, the number of status Indian children entering child welfare care rose 71.5 % nationally between 1995 and 2001. In 2005, INAC and the AFN commissioned the FNCFCS to oversee a team of over 20 researchers to develop an affordable and evidence-based solution to the problem of inadequate funding. Their solution confirmed the findings of a 2000 National Policy Review report that found the federal funding formula was inadequate. Overall, the report found that the federal government must invest an additional $109 million in First Nations child welfare agencies in the first year of a seven-year funding cycle to achieve equality among services available to all other children. To date, INAC has yet to implement the solution. The department has provided funding to partially alleviate the inequity in Alberta, Saskatchewan, and Nova Scotia. However, these deals do not alleviate inequities experienced by children in other parts of Canada.
The AFN and the FNCFCS chose to launch the human rights tribunal hearing only after Canada failed to commit to the solution. Only the Canadian Human Rights Tribunal has the authority to determine whether or not discrimination has occurred and order a remedy that is enforceable in federal court. Immediately after the complaint was filed, the federal government applied for a judicial review, challenging the tribunal’s right to hear the case. Canada argues that funding of First Nations child welfare agencies is not a service and is thus not subject to the Canadian Human Rights Act. Both the AFN and the FNCFCS say that without federal funding, there would be no First Nations child welfare services, plus the federal government imposes significant child welfare practice and policy requirements in order to receive the funds; therefore, it is a service.
Witnesses to be called include the INAC minister Chuck Strahl and long-serving Auditor-General Sheila Fraser, as well as a host of academic experts and First Nations agency directors. “A year after the apology for the wrongful removal of First Nations children from their families (i.e. residential schools), the federal government is spending thousands of taxpayer dollars to derail the Canadian Human Rights Tribunal from hearing all the facts instead of using that money to help children on reserves stay safely with their families,” said Cindy Blackstock, CEO of the First Nations Child and Family Caring Society.