In a landmark decision rendered on January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) found that the Minister of Indigenous and Northern Affairs Canada (“INAC”), previously Aboriginal Affairs and Northern Development Canada, discriminated against aboriginal children in the delivery of child welfare services.
Though child welfare services are generally a provincial or territorial responsibility, the federal government remains responsible for the delivery of such services for First Nations living on reserve pursuant to its responsibility for “Indians, and Lands reserved for the Indians” under theConstitution Act, 1867. In line with this responsibility, the federal government administers a First Nations Child and Family Services Program (the “FNCFS Program”). The FNCFS Program provides funding to provinces or territories, if an agreement is in place between the federal and provincial/territorial governments in question, or to First Nations Child and Family Services Agencies (“FNCFS Agencies”), who in turn deliver child welfare services within reserves.
In a complaint filed against INAC in February 2007, the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations (the “Complainants”) alleged that INAC discriminated against First Nation children by providing inequitable and insufficient funding for child and family services to First Nations living on reserve.
The complaint was filed under subsections 5(a) and (b) of the Canadian Human Rights Act1 (the “CHRA”), which provide:
- It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
As such, in order for the complaint to be successful, the Complainants had to prove that First Nations were being denied a public service or were unfavourably impacted in the provision of such services by INAC based on the fact that they were First Nations.
INAC’s response was two-fold: (i) it alleged that it was not providing a service as it simply provided funding to the FNCFS Agencies and provinces and territories to render such services, and (ii) it further alleged that even if it were providing a service, there was no discrimination as the funding dedicated to child welfare services for First Nations was comparable to that received by the general public.
Is INAC rendering a public service?
The Tribunal found that the provision of child welfare services was indeed a public service delivered by INAC.
Firstly, the funding of child welfare services was publically presented by INAC as a benefit or assistance by INAC. In fact, the FNCFS Program and the applicable provincial and territorial agreements were the product of negotiations completed by INAC on behalf of First Nations pursuant to its mandate in order to ensure that First Nations living on reserve received culturally appropriate welfare services which are comparable to those received by non-First Nations. This conclusion is in line with a previous decision of the Federal Court in Attawapiskat First Nation v. Canada, 2012 FC 948.
Furthermore, the Tribunal found that even if child welfare is a provincial responsibility and is administered by non-federal entities, the CHRA would still apply as the complaint involved human rights issues related to INAC’s activities. Essentially, the Tribunal found that INAC cannot shield itself from human rights scrutiny by hiding behind provincial actors.
In light of the above, the Tribunal found that INAC was indeed rendering a public service and thus is subject to scrutiny under the CHRA. This step completed, the Tribunal then had to consider whether or not INAC rendered this service in a discriminatory manner.
Is INAC discriminating against First Nations in rendering the services?
Funding under the FNCFS Program is determined either through one of two formulas: “Directive 20-1” or the Enhanced Prevention Focused Approach (the “EPFA”).
Directive 20-1 is a formula which establishes funding for child welfare services in First Nation reserves based on a number of assumptions related to need and population levels. The EPFA, for its part, is an updated version of Directive 20-1, developed following various reviews, studies and reports of the FNCFS Program, but also based on a certain number of assumptions. Assumptions under Directive 20-1 and the EPFA are pre-determined for all First Nation reserves and are not established on a case-by-case basis, and both formulas remain in use.
The Complainants raised that both mechanisms were clearly discriminatory as evidenced by: (i) various studies and reports which highlight the shortcomings of the FNCFS Program, (ii) the differing level of service received by First Nations on reserve, and (iii) the prejudice suffered by the First Nations children and families as a result of an ill-adapted FNCFS Program.
Difference in service levels
The Complainants presented a number of studies and reports analysing the FNCFS Program, which reports identified various shortcomings in relation to its funding and structure, leading to child welfare services on First Nation reserves comparing unfavourably to those provided to individuals outside of reserves.
Though INAC argued that such reports were not relevant or reliable, the Panel Members found that this position was unfounded as the information found in those reports supported INAC’s own conclusions and INAC itself had previously acknowledged and relied on those reports in its attempts to reform and improve the FNCFS Program.
INAC further argued that the differences in service levels and programs were not due to the amount of funding received but rather due to the choices made by FNCFS Agencies with respect to how to spend such funds. The Tribunal did not agree.
Rather, the Tribunal found that the “one-size fits all” approach used by INAC is not an appropriate method in the circumstances: the assumptions of need and population levels on which Directive 20-1 and the EPFA are based do not accurately portray the situation on reserve and the resulting funding is insufficient to provide essential child and family services in many cases.
Specifically, the Tribunal found, among other things, that:
- FNCFS Agencies being funded under Directive 20-1 received less funding than those who have transitioned to the EPFA;
- Neither formula takes into account current standards and practices applicable in the various provinces and territories, which standards and practices vary from province to province or territory, creating various funding deficiencies;
- INAC has itself recognized that increases in funding are necessary, even under the EPFA, to ensure reasonable comparability with the provinces;
- Neither Directive 20-1 nor the EPFA provide for adjustments based on the cost of living or for changes in provincial legislation and standards;
- INAC’s approach is simply based on maintaining similar levels of funding to provinces and not on the actual comparability of service levels between on and off reserve child and family services, ignoring the actual need levels of First Nations and the actual costs required for such services; and
- Though various programs existed to address service gaps, these programs remained uncoordinated by INAC and its narrow interpretation of jurisdictional conflict principles exacerbated the issue.
The Tribunal found that the above caused service gaps, delays or denials and an adverse impact on First Nations children and families on reserves.
In light of the above, the Tribunal found that the Complainants had established a prima faciecase of discrimination under the CHRA. The Tribunal also characterized INAC’s position as being “unreasonable, unconvincing and not supported by the preponderance of evidence” and criticized its lack of action despite its knowledge of the failings of the FNCFS Program.
Though the Tribunal found that INAC had discriminated against First Nations, given the complexity of the issues to be resolved and a number of outstanding questions it had with respect to the orders and damages sought, the Tribunal deferred its decision on such matters to a later date.
Finally, the Complainants had also sought costs against INAC in light of what they characterized as obstruction of process. In fact, the proceedings were mired by a numerous procedural motions filed by INAC and multiple failures on its part to fully disclose documents ahead of the trial. The Tribunal also reserved its decision on this front.