Children’s services on reserves and human rights

June 02, 2010
Craig Benjamin
Toronto Star

Over the next two days, the Canadian Human Rights Tribunal will decide whether or not to continue hearings into the federal government’s underfunding of children’s services in First Nations reserves. The decision should be of pressing interest to anyone concerned about human rights in Canada.

First Nations children on reserves are eight times more likely than other children to be put into foster care or government institutions. These children are being taken from their families and their communities for a wide range of reasons, but the most common is what’s called “neglect.” This includes conditions of poverty, poor housing and physical and mental illnesses suffered by their parents. In other words, their families have not been able to provide the care that these children need. Not without support.

Advocates for the rights of First Nations children have long pointed out that things don’t need to be this way. If children’s services on reserves were linked to the needs of the children and equitable to services available in other communities, early intervention programs and other services could assure that more children receive the care they need and deserve without taking them away from their homes and their culture.

In 2000, the Department of Indian Affairs took part in a study that determined that, on average, the federal government spends 22 per cent less per child for children’s services on reserves than their provincial counterparts spend in predominantly non-aboriginal communities. This is despite the greater expense and greater need created by the remoteness of many aboriginal communities and the lasting harm caused by past government policies, such as the residential schools.
Canada’s only response is a model called “enhanced funding” that the auditor general has already ruled inequitable. Even this approach is not available in all regions.

The fact that this issue is now before the Human Rights Tribunal reflects the failure of successive federal governments to do the right thing for children and families by acting on the findings of their own reports and independent experts.
Two years ago, the federal government formally apologized for the forced removal of children from their homes and families during the residential school era. Like many Canadians, I felt that this apology was a welcome step toward the necessary and long-overdue reconciliation of aboriginal and non-aboriginal peoples. Justice, however, requires more than just words. Justice requires that every effort must be made to undo the harm that has been done and to ensure that the wrong is never repeated.

Sadly, it’s a test that the Government of Canada is failing. Overall, the number of First Nations children placed in foster care is higher today than at the height of residential school operations. And the federal government is fighting against being held accountable for its failings.

The Human Rights Tribunal has been asked to determine whether the underfunding of First Nations child services constitutes discrimination under the Canadian Human Rights Act. The Federal Court has already denied government requests to prevent the tribunal hearing on this case. Now the government is trying the same tactics at the tribunal. This week the tribunal will consider the government’s claim that the Human Rights Act applies only to the delivery of government services, and not to the funding decisions that ultimately determine the kind and quality of services that can be provided.

This is legal hairsplitting but it has potentially serious consequences for human rights. The area of child and family services is only one among many where First Nations institutions deliver services based on funding formulas set by the federal government. If the government is able to convince the tribunal to throw out this case, it would create a large gap in human rights accountability for government decisions in critical areas such as First Nations health and education.

One of the ironies of this case is that this is the same government that two years ago refused to the support the UN Declaration on the Rights of Indigenous Peoples, arguing that Canada was better off relying on the Canadian Human Rights Act alone. Now, in its submission to the tribunal, the government is arguing that its funding of services on First Nations reserves should be excluded from both domestic and international human rights standards. What happens to the children if they are successful?

Canadians should demand better. For the welfare of First Nations children. And for the basic principle of universal human rights protection.

Craig Benjamin is Amnesty International’s c