OTTAWA — (Feb 13, 2012) Sweet-smelling smoke from a smudging ceremony filled an Ottawa courtroom Monday as a controversial case began that could open the door for First Nations residents to argue they are being discriminated against en masse by the federal government. An elder named Flying Eagle Woman lit a sprig of sweetgrass at the Federal Court hearing. She urged the court to stand with the creator when it makes its decision and prayed that everyone present would "come together with one mind and one body.
"With the ceremony aside, the legal wrangling began. Facts that could prove the federal government is discriminating against aboriginal children by underfunding child-welfare services on reserves need to be heard in court, said lawyers for the Canadian Human Rights Commission.
The commission is one of several groups appealing a 2011 ruling by the Canadian Human Rights Tribunal — which the commission oversees. In that ruling, the tribunal dismissed a discrimination case brought by the Assembly of First Nations and the First Nations Child and Family Caring Society of Canada. The complaint argued the consistent underfunding of child-welfare services on reserves leads to poverty, poor housing, substance abuse and a vast over-representation of aboriginal children in state care.
However, the federal government is arguing that because it merely sends funds to band managers — who themselves administer the services — the government cannot be held responsible for the services delivered. The government also says the question itself is invalid because it funds services on reserves, while provincial governments are responsible for services to the rest of Canadians, and that comparing two governments is both "unreasonable" and nonsensical.
The "comparator" argument was used in the Human Rights Tribunal's initial decision to dismiss the case in 2011 before any of the main evidence had been heard.But First Nations Child and Family Caring Society lawyer Nicholas McHaffie told the court that comparing services to another group is only one "evidentiary tool."
"It is not the only way to show discrimination," he said. "There may be different pieces of the evidentiary puzzle needed to prove discrimination — they all need to be heard."
Human Rights Commission lawyer Philippe Dufresne told the hearing Monday that "the court must look at the facts, examine the services and determine if there is suffering."Currently, five per cent of aboriginal children living on reserve reside in care, away from their families. That's eight times more than other Canadian children, according to testimony by former auditor general Sheila Fraser at a parliamentary committee hearing in 2010.
In 1990, the federal government adopted a policy requiring child welfare services provided to First Nations children on reserves to meet provincial standards, be reasonably comparable with services for children off reserves and be culturally appropriate. But Fraser's audits consistently found the federal government "had not sufficiently taken into account provincial standards and other policy requirements when it established levels of funding for First Nations agencies to operate child welfare services on reserve."
"You must keep in mind the individual families who are affected by the dismissal of this complaint," McHaffie said.
Jonathan Thompson, the director of health and social development at the Assembly of First Nations, said he wasn't surprised when the government "decided to argue this on a technicality.""We've done report after report — both with the government and on our own — and they have all come out with overwhelming evidence of inequity, and yet nothing gets done," he said during an intermission in proceedings. Thompson said the government is trying to prevent the facts from being placed on the record because it knows the evidence against it will show that discrimination exists.
Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, who has been a driving force behind this case, has said if the government is allowed to use the comparator argument, "that would basically immunize the government from any discrimination or human rights claim relating to its funding policies and procedures on reserve." Blackstock has been gathering support for this cause since 2007. More than 9,000 people worldwide are participating in the I am a Witness campaign, pledging to watch the proceedings — in person if they can, or on the Aboriginal People's Television Network, which will be televising the review.
One of over 100 witnesses who attended the hearing Monday is Madeleine Keshen, a 12-year-old student at Featherston Drive Public School in Ottawa. She's part of a grades 5 to 6 class that came to the court to "stand up against injustices."
"It's not fair that they get less than we do," said the blond, blue-eyed little girl. "It's just because of who they are, and it's not right."
"People are watching," said Blackstock. "We've never been this organized before."
The case will continue Tuesday and Wednesday when the court will hear from lawyers for the Assembly of First Nations, the Chiefs of Ontario and the Attorney General, on behalf of the federal government.
Read more: http://www.canada.com/life/Case+argues+systematic+discrimination+against+First+Nations+children/6145359/story.html#ixzz1mTXCAeJd