Canadian Human Rights Tribunal Finds Federal Government Discriminates Against First Nations Children


Today the Canadian Human Rights Tribunal released a decision about on-reserve child and family services that is simultaneously devastating in its conclusions about our collective failure of indigenous children, and inspiring, with a promise of healing and cautious optimism about the future.

The First Nations Child and Family Caring Society of Canada and the Assembly of First Nations filed a complaint in 2007 alleging Aboriginal Affairs and Northern Development Canada (AANDC) discriminated against First Nations children in its provision of child and family services on reserve. The Tribunal’s decision was issued after years of procedural wrangling as well as retaliation against Cindy Blackstock, one of the complaint’s central advocates.

The Ruling details decades of funding shortfalls and inequality between on-reserve services and those provided by provincial agencies off-reserve. It describes the lasting impacts it has had on children and directly situates the disparity in the context of the residential schools’ legacy of collective and intergenerational trauma.

The Tribunal found that:

  •  AANDC provides a service through its First Nations Child and Family Services (FNCFS) Program and other related provincial and territorial agreements (457) such that the Canadian Human Rights Act applies.
  •  While the FNCFS Program is intended to ensure the safety and well-being of First Nations children on reserve and provide culturally appropriate services in accordance with provincial/territorial standards; AANDC is far from meeting these goals and First Nations are adversely impacted by or denied adequate child welfare services by the application of the FNCFS Program (393)
  • The FNCFS Program creates incentives to remove children from their homes and communities, largely a result of funding shortfalls created by inaccurate and outdated assumptions in funding formulas. (384)
  •  The FNCFS Program’s funding structure makes it difficult, if not impossible, for many FNCFS Agencies to comply with provincial/territorial legislation and standards. (389)
  •  AANDC and Health Canada narrowly interpreted Jordan’s Principle, which requires governments of first contact to provide child services first and resolve jurisdictional questions later, resulting in service gaps, delays or denials and adverse impacts to First Nations children and families on reserves (391)
  •  It is only because of their race that First Nations people living on reserve suffer adverse impacts from AANDC’s provision of child and family services. These adverse impacts perpetuate the historical disadvantage and trauma Aboriginal people have suffered, in particular as a result of the residential schools system. (459).
  •  Despite being aware of these adverse impacts for many years, AANDC has not significantly modified the program since its inception in 1990. (461)

Today, First Nations and Child advocates have called the decision a complete victory for children. Indeed, the federal government immediately agreed with the decision and committed to working with Indigenous groups to fix the problem. These are certainly reasons to be cautiously optimistic: cautiously, because institutional change requires not only principled and courageous individual effort, but institutional resources, time, and commitment to shifting decades of practice.

The discussions unfolding across Canada today may also be a sign of potential for healing and cautious optimism about reconciliation. As Cindy Blackstock, the First Nations Child and Family Caring Society executive director, noted, this decision will be an eye-opener for many Canadians who are under the mistaken impression that First Nations’ children living on-reserve receive more. The reality is stunning. As Ms. Blackstock said in a press-conference today, this case revealed that First Nations children in care have spent over 66 million nights away from their families between 1989 and 2012.

The Tribunal’s decision should be read alongside the Truth and Reconciliation Commission’s calls to action #1-5, which demand our attention to the crisis in child apprehension among indigenous communities. The Tribunal’s decision is a powerful reminder that the legacy of the residential school system is not a thing of the past; it lingers in today’s policies and procedures. So long as this continues to be the case, so too will the collective trauma First Nations children and their parents experience as a result of those polices. The first step toward ensuring that does not continue to happen is to acknowledge the harm and seek to address it. Each of us is responsible for holding the federal government to its promises.