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17 Hum. Rts. Dig. 1 (2016)

handle is hein.journals/hurtsdg17 and id is 1 raw text is: Hun nRi !s Digest Vol. 17 No. 1 January 2016 ABORIGINAL PEOPLES - RACE, COLOUR AND PLACE OF ORIGIN - PUBLIC SERVICES AND FACILITIES - child wel- fare services and education services discriminatory and denied - discriminatory provision of public services - fiduciary relationship - Jordan's Principle (child-first principle) - definition of services - EDUCATION - dis- criminatory treatment on the basis of race - funding of public education EQUALITY - equality before the law - relationship be- tween equality under human rights legislation and equali- ty under the Charter - DISCRIMINATION - comparator group - HUMAN RIGHTS - human rights legislation and international statutory obligations - nature and purpose of human rights legislation - CONSTITUTIONAL LAW - separation of powers - JURISDICTION - aboriginal edu- cation and services for children - Jordan's Principle (child-first principle) EVIDENCE - sufficient evidence and case to meet - weight of evidence - BURDEN OF PROOF - elements of a prima facie case - INTERPRETATION OF STATUTES - definition of services - REMEDIES - reform social pro- grams funding policy - cease discriminatory practice The Canadian Human Rights Tribunal upheld a complaint made by the First Nations Family and Child Caring Society and the Assembly of First nations. The Tribunal ruled that Aboriginal Affairs and Northern Development Canada (AANDC) discriminates in providing child and family ser- vices to First Nations on reserve and in the Yukon, on the basis of race and/or national or ethnic origin, by providing inequitable and insufficient funding for those services. At issue are the activities of AANDC in managing the First Nations Child and Family Services Program (FNCFS Pro- gram), its corresponding funding formulas, and a hand- ful of other related agreements that provide for child and family services to First Nations on reserves and in the Yukon Territory. Pursuant to the FNCFS Program and other agreements, services on reserves and in the Yukon Territories are pro- vided by FNCFS agencies or by the province/territory in which the community is located. In either situation, AANDC funds the child and family services provided to First Nations by FNCFS agen- cies or the province/ territory. The complaint is that AANDC funding is inad- equate and inequitable. The Tribunal found that the FNCFS Program and related provincial/territorial agree- ments, which are held out by AANDC as assistance or a benefit, are a service within the meaning of the Canadian Human Rights Act. They are intended to provide funding to ensure the safety and well- being of First Nations children on reserve by supporting appropriate child and family services. First Nations are the distinct public to whom the service is provided, in the context of a unique constitutional and fiduciary relation- ship between the federal government and First Nations. AANDC has undertaken to ensure that the services are reasonably comparable to services provided by the prov- inces to persons in similar circumstances. There is a clear public relationship between AANDC and First Nations in the provision of the FNCFS Program. AANDC significantly controls the provision of services in issue, to the detri- ment of First Nations children and families. The Tribunal found that AANDC is far from meeting its intended goals and that First Nations are adversely affect- ed by the FNCFS Program and other funding methods, and in some cases denied adequate child welfare services because of the application of the FNCFS Program. The shortcomings of the FNCFS Program include: The assumptions which determine how the amount of funding is calculated, which creates incentives to re- move First Nations children from their homes and communities. As a result, First Nations children and their families are denied an equitable opportunity for children to remain with their families or to be reunit- ed in a timely manner. The Directive 20-1 funding formula, which is based on assumptions about children in care and on population thresholds that do not reflect the service needs of many on-reserve communities. The funding structure for the FNCFS Program, which is not adapted to provincial/territorial legislation and standards. That makes it difficult if not impossible for FNCFS agencies to comply with those standards and in the case of agencies in many small and remote com- munities even to provide child and family services. The current structure and implementation of the En- hanced Prevention Focus Approach (EPFA), which also perpetuates incentives to remove children from their families. Funding levels have not been adjusted for inflation or cost of living. The siloing and lack of co-ordination of other federal programs, which complement the FNCFS Program, which result in service gaps, delays, or denials which CANADIAN HUMAN RIGHTS REPORTER 1U-C10 PUBLISHER OF CANADIAN HUMAN RIGHTS LAW If the federal government's failure to adequately fund child and family services on reserve widens the gap between First Nations and other Canadians, it is discriminatory.

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