OTTAWA — A decision to dismiss a landmark attempt to hold the federal government legally responsible for the plight of aboriginal children living on reserve allows Canada to duck its responsibility to a generation of youth, human rights advocates told an Ottawa courtroom Wednesday.
A three-day judicial review of that 2011 decision concluded on Wednesday, with First Nations advocates hammering home the argument that was dismissed by the Canadian Human Rights Tribunal last year — that the federal government is discriminating against aboriginal children by consistently underfunding child-welfare services on reserves, leading, they contend, to poverty, poor housing, substance abuse and a vast over-representation of aboriginal children in state care.
"The Canadian Human Rights Act is about fixing the problem," said Human Rights Commission lawyer Philippe Dufresne. "If you don't hold the federal government responsible, the problem will remain."
"At the centre of this is kids currently in care — they're in the highest-risk situations, and Canada seems to want to absolve themselves of any public accountability," said Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada.
In 2007, the Assembly of First Nations and the Caring Society took their claim against the federal government to the Canadian Human Rights Commission which referred it, after consideration, to the Canadian Human Rights Tribunal.
Two years later, the attorney general, arguing on behalf of the Canadian government, asked the tribunal to dismiss the case.
The government argued first that the tribunal didn't have the jurisdiction to hear the case and secondly that, as the federal government funds agencies who deliver services on reserve, and the provinces pay for services off reserve, there is no way — under the Canadian Human Rights Act — to compare two governments who deliver services to two recipients.
In 2011, the tribunal chair, Shirish Chotalia, agreed with the government's argument and dismissed the case.
Speaking before the court Wednesday on behalf of the government, Jonathan Tarlton, stood by the tribunal's decision to dismiss, saying the Canadian Human Rights Act — which the tribunal is charged with upholding — deals with discrimination in services or in employment.
As the federal government says it merely funds services on reserve, while band councils themselves deliver those services, the government contends that the tribunal doesn't have jurisdiction to hear the case because funding is not a service within the meaning of the Canadian Human Rights Act.
He said it would be better heard in another venue; he did not say which one.
But Blackstock said the government is arguing a technicality because they know they can't win on merits.
She pointed to former auditor general Sheila Fraser's reports which consistently confirm Canada's funding arrangements for First Nations child and family services are inequitable.
"It's a case of discrimination," she said when asked if a human rights complaint was the proper way to tackle the issue. "We had been at the table with the federal government for ten years, showing them report after report about the realities of child-welfare on reserve . . . we got tired of waiting for them to do the right thing so we filed the complaint."
Blackstock's counsel and the other complainants are arguing that Chotalia made an error in law when she dismissed the case before hearing any of the main evidence.
They contend the issue of jurisdiction is murky because, while it's true that the federal government funds the provision of services on reserve, those services are subject to provincial laws and the entire system is designed by the federal government through the Indian Act, so they cannot shirk their responsibility.
The case has critical implications for aboriginal people of all ages because the federal government is responsible for funding health, education, police services and child welfare on reserves, all of which fall under provincial jurisdiction off reserves.
Blackstock said if the case is dismissed, "that would basically immunize the government from any discrimination or human rights claim relating to its funding policies and procedures on reserve."
"If we're unsuccessful in overturning the tribunal's decision, then the Human Rights Act will fail to apply to First Nations people living on reserve — we'll have a complete human rights vacuum," she warned.
But, while Tarlton acknowledged the importance of this case for aboriginal people, he said "it would be problematic if one group of Canadians argued that a different standard should be applied to them."
"Access to justice does not mean that you are heard in whatever forum you decide," he said.
The complainants are asking Justice Anne Mactavish of the Federal Court to overturn the decision and send the case back to a differently constituted tribunal for a full hearing.
The judge said she is mindful that the case concerns the most vulnerable children and will, therefore, attempt to make a speedy decision — but because of the complexities of the case, she could not say exactly when it would come down.