Funding Inequities Amount to Racism Against Canada's Aboriginal Children, Federal Court Hears

Child welfare advocates are teaming up with the Assembly of First Nations and the Canadian Human Rights Commission to argue before Federal Court in Canada that funding inequities between Native child welfare and children throughout the rest of the country are racist and discriminatory.

Aboriginal child welfare was on the docket in Federal Court on February 13 as child advocates argued that inequities in funding between on-reserve education, health and children’s services are so glaring that they constitute racism.

In a court presentation that began with a smudging ceremony, an elder named Flying Eagle Woman lit a sprig of sweetgrass at Federal Court, according to Postmedia News, as she prayed for unity and understanding. It was the preface to a case that has held anything but consensus since 2007, when it began.

Children on reserves, goes the argument by the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations (AFN), receive less money for education, health care and child welfare services than mainstream Canadians. As a result, they say, more children grow up impoverished and uneducated, and many end up in foster care—at a rate far higher than Canadian children as a whole. It sets them up to fail later in life, the advocates said.

The case stems from a human rights complaint filed by the Caring Society and the AFN in 2007 against the federal government alleging institutionalized discrimination. The tribunal dismissed the complaint in March 2011.

At issue is whether the federal government is legally responsible for what happens to aboriginal children in the child-welfare system. The federal government argues that the plights of Native and mainstream Canadian children are not comparable because provinces, not the federal government, oversee reserves, as Postmedia News reports. This was the logic that tribunal chair Shirish Chotalia used in dismissing the case.

Caring Society Executive Director Cindy Blackstock, who is spearheading the case, holds that agreeing with this "would basically immunize the government from any discrimination or human rights claim relating to its funding policies and procedures on reserve," according to Postmedia News.

Now the court must decide whether the case was dismissed in error—it must either uphold the decision, throw the case back to the tribunal so all the evidence can be heard, or listen to the arguments itself and make a ruling.

Now the Canadian Human Rights Commission has joined the first two groups in demanding that all the evidence be heard. The commission oversees the tribunal.

During three days of hearings, the court will listen to arguments from the AFN, the Caring Society, the commission, the Chiefs of Ontario, Amnesty International and the Canadian government, the AFN said.

Although progress has been made in the area of aboriginal child welfare—federal funding has nearly doubled, from $238 million in 1998 to $550 million in 1999, Aboriginal Affairs and Northern Development (AAND) spokeswoman Michelle Yao told the Canadian Press, and the government is working more closely with provinces than ever—the fact remains that three times more aboriginal children are in foster care, away from their families, than at the peak of the residential school system.

The court case, coming on the heels of the January Crown–First Nations Gathering, is another sign that First Nations are stepping up pressure on the federal government to make good on its promises to improve conditions on reserves.

"Just as we said when we gathered last month for the Crown-First Nations Gathering, First Nations are committed to a path of mutual respect. This means fairness, recognition and jointly designed approaches that work for our peoples," said AFN National Chief Shawn A-in-chut Atleo in a statement. "We are standing firm in protecting our rights and our children. We will be vigilant."