FNCFCS WINS FEDERAL COURT BATTLE ON FIRST NATIONS CHILD WELFARE CASE IN SPITE OF HARPER-APPOINTED HUMAN RIGHTS COMMISSION CHAIR
Dr. Cindy Blackstock
UFCW Canada national partner First Nations Child and Family Caring Society (FNCFCS), along with the Assembly of First Nations (AFN), and the Canadian Human Rights Commission (CHRC) have won an unprecedented victory — with the Federal Court of Canada granting the appellants' application for appeal and ordering the Canadian Human Rights Tribunal (CHRT) to appoint another panel to review their historic First Nations child welfare case.
In her decision, dated April 18, 2012, Madam Justice Anne Mctavish noted three disturbing errors made by CHRT in its interpretation of section 5 of the Canadian Human Rights Act. First, CHRT did not provide any grounds as to why FNCFCS and AFN could not proceed with the First Nations Child Welfare case. Second, the CHRT’s interpretation of subsection 5(b) of the Act was rigid and unreasonable which required a comparator group that does not exist, thereby excluding First Nations from the protection of the Act. And third, Justice Mctavish found the CHRT’s conclusion to be inappropriate when the CHRT dismissed the case in 2011 on the basis that federal services provided on reserves could not be compared to provincial standards. In addition to citing errors committed by the Tribunal, Justice Mctavish also noted that the CHRT committed a breach of fairness by dismissing the case without considering the significant amount of materials submitted by FNCFCS.
The case was brought to the Federal Court for judicial review after the Tribunal Chair Shirish Chotalia, a Stephen Harper government appointee, oddly decided to dismiss the case on a preliminary motion without hearing the merits of the case. Dr. Cindy Blackstock, Executive Director of FNCFCS, argued that the Tribunal’s decision goes against the Canadian Charter of Rights and Freedoms because it makes Aboriginal Peoples the only group that cannot file complaints against the federal government for alleged discrimination of services. The complaint asserts that First Nations children living on reserves receive lower quality of child welfare services due to underfunding by the Government of Canada.
In a peculiar twist in this case, shortly after the decision of the Federal Court, Ms. Chotalia, who was found earlier this year by an independent labour investigator to have harassed two subordinates and engaged in “baffling, if not bizarre” behaviour, stepped aside in the aftermath of this scathing federal court decision that criticized her management of the landmark case. She was quickly replaced by the Susheel Gupta who is another Conservative government appointee.
“We applaud the Federal Court of Canada's well thought out decision to allow this case to proceed on its merits,” says Wayne Hanley, UFCW Canada National President," and congratulate the team at the FNCFCS and the AFN for its uncompromising advocacy for fairness for First Nations children, particularly in the face of the dismissive approach to human rights law taken by Ms. Chotalia,” Brother Hanley added.
“Much to the displeasure of the Stephen Harper regime in Ottawa, this decision unapologetically reaffirms a principle of equality and fairness that we all know — that First Nations Children are no different than my children or yours and that they, like all children, merit a childhood free from the anxiety and burdens of poverty,” says Naveen Mehta, UFCW Canada General Counsel and Director of Human Rights.
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