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The discrimination case before the Canadian Human Rights Tribunal on child welfare services for First Nations children and the Jordan Principle

Anne Levesque, Sarah Clarke, Cindy Blackstock

More First Nations children today are being placed in foster care than the number of students who ever attended residential schools. It is becoming increasingly clear that this problem is caused by inequitable and insufficient federal government funding for child welfare services. In 2007, the First Nations Child & Family Caring Society of Canada (the Caring Society) and the Assembly of First Nations filed a complaint concerning two allegations of discrimination. The first allegation concerned a conflict of jurisdiction between the federal and provincial governments that resulted in First Nations children often having to wait to receive vital services or even refused services provided to other children. The second allegation of discrimination concerned the unfair treatment of 163,000 First Nations children in the child welfare system provided on reserves. In both cases, it was alleged that these treatments constituted discriminatory acts prohibited under the Canada Human Rights Act. Over the next six years, the Canadian government spent millions of dollars on numerous unsuccessful attempts to derail the case. The case was nevertheless brought before the Human Rights Tribunal in February 2013; for the first time in Canadian history, the federal government’s liability regarding allegations of discrimination toward First Nations children was examined by a body that could make legally binding decisions and remedial orders. Over the year that followed, the Tribunal heard from over 25 witnesses and examined over 500 evidentiary documents. Internal federal documents that were submitted revealed consistent and systematic discrimination against First Nations children, along with a failure to resolve the problem, even with known solutions at hand. Even while the case was still before the Tribunal, a number of academics and members of First Nations began making parallels between the federal government’s reaction in this case and other cases of discrimination in access to services such as education, policing, health, and housing in Indigenous communities. This article expresses the perspectives of three authors who were closely involved in the case: two as lawyers and the other as a witness and complainant. It first provides an overview of the main legal issues raised in the case and then analyses the documentary and testimonial evidence. The need to correct the situation in other spheres of governmental services for First Nations people is also discussed.