Panel Discusses Landmark Ruling On First Nations Child Welfare

Daniel Carens-Nedelsky (3L)

On Thursday March 3, David Nahwegahbow and Sarah Clarke came to speak to a group of U of T students and professors about the landmark Canadian Human Rights Tribunal (CHRT) case First Nations Child and Family Caring Society (FNCFCS) v Attorney General of Canada. The case made headlines earlier this year when the tribunal ruled that the federal government had discriminated against 163,000 First Nations children by systematically underfunding child welfare services on reserves relative to provincial funding for similar programs off reserves.

Procedural history

The case was first launched in 2007, but was subject to numerous legal detours, resulting in almost six years before it was heard on its merits by the tribunal.

Notably, the case went to Federal Court twice. First on the issue of whether the federal government provided a “service” such that the CHRT had jurisdiction to hear the complaint. Second, after the tribunal ruled in favour of the federal government’s argument that they could not make a finding of discrimination as there was no “comparator group” of child welfare services provided by the federal government, AFN and the Caring Society appealed to the Federal Court. The tribunals ruling was overturned in a detailed decision by Justice Mactavish at the Federal Court, whose ruling was upheld by the Federal Court of Appeal.

These delays created huge litigations costs, and undermined one of critical reasons the parties choose to argue the case at the tribunal, which was that it was supposed to be a faster and cheaper process than going to court.

Assembly of First Nations (AFN) and David Nahwegahbow’s role

David explained that although the Canadian Human Rights Commission had agreed to argue the case, there remained a role for the complainants to make arguments that the Commission was not well situated to make. The AFN felt that residential schools were an important part of the case. One way to prove discrimination is to prove perpetuation of historic disadvantage, and this was the strategy that the AFN pursued.

To this end the AFN called three witnesses. First, John Milloy author of A National Crime and a history professor at Trent, who outlined the history of residential schools. Second, Dr. Amy Bombay who had just received a PhD in neuroscience psychology for her dissertation on the intergenerational effects of residential schools. This allowed the AFN to tie the historical information Milloy explained to the present day. Lastly, Chief Robert Joseph from British Columbia talked about his own experience in residential schools. David believes this had significant influence on the panel, and that you can see this reflected in the opening paragraphs of the judgment.

The Caring Society and Sarah Clarke’s role

The Caring Society played a number of roles in litigation, including trying to ensure the voices of those who were being harmed were heard, and trying to show that the funding gap was willful action by the government.

Sarah first become involved with the Caring Society as part of a law school placement after reading Stolen from our Embrace, a book she recommends to everyone. Sarah noted that Cindy Blackstock, the executive director of the Caring Society, was a master of freedom of information (FOI) requests, a fact that was critical both in launching the litigation and in providing key evidence during it.

As a student, Sarah found an email received from an FOI request that said funding First Nations child welfare was “too expensive.” Later as counsel for the Caring Society, Sarah helped sort a hundred thousand newly disclosed documents released as result of the Society’s ongoing requests. Some of these documents showed that the federal government had done an excellent job of keeping track of exactly how much it was underfunding First Nations child welfare services, providing strong evidence of willful intention on the part of government.

In addition to underfunding, Sarah discussed the problems with the allocation of the funding that did exist. Particularly troubling was their lack of funding for preventative measures. The government would pay if a First Nations child was apprehended and sent into foster care, but would provide no support for parents who survived residential schools and were seeking assistance.

Another role the Caring Society played was involving children in the process from start to finish, such as encouraging them to write to the Prime Minister and to attend the hearings and court appearances. The goal was bringing Indigenous and non-Indigenous children together to stand up for kids. Sarah explained that during Justice Mactavish’s hearing they had to move to the proceedings to the Supreme Court of Canada’s courtroom because too many children were present to listen to the arguments, and they still had to set up an overflow courtroom with a live stream of the proceedings.

What’s next?

Both speakers were very happy with the tribunal’s ruling, Sarah called it a “landmark ruling” and David noted that the tribunal gave them everything they asked for. The question of what remedies the tribunal will issue is still being litigated.

Sarah noted that the federal government had yet to take action on the issue despite the clear ruling. Since the date of the panel, the federal government has released its budget, which includes $71 million in funding this year for First Nations child welfare, which is well short of the $200 million the Caring Society estimated would be required to make up for the shortfall.