Canadian Human Rights Tribunal sets the stage for first nation discrimination cases.

• Author: McKay-Panos, Linda

In late January, 2016, the Canadian Human Rights Tribunal (Tribunal) ruled that children living on First Nations reserves have been discriminated against because of underfunding of education and child welfare. (see: First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian Affairs and Northern Development Canada), 2016 CHRT 2 (CanLII) (online https://www.canlii.org/en/ca/chrt/doc/2016/2016chrt2/2016chrt2.html). Canadians who are not First Nations may be surprised to learn about the issue of underfunding because there is much misinformation about issues of funding of First Nation peoples' families and communities.

In Canada, legislative power is divided between the federal government and the provincial/territorial governments. Under section 91(24) the Constitution Act, 1967, the federal government was provided with exclusive legislative authority over "Indians and Lands Reserved for Indians". The federal government enacted s 88 of the Indian Act RSC 1985, c 1-5, which provides that all laws of general application that are in force in any province apply to Indians. This means that provincial child welfare legislation and standards apply to First Nations and peoples on reserves.

In addition to the legislative power held by the federal government, there exists a special relationship between the Crown and Aboriginal peoples. This special relationship gives rise to a fiduciary duty between the federal Crown and the Aboriginal peoples of Canada (see section 35 of the Constitution Act, 1982 and R v Sparrow, [1990] 1 SCR 1075), which could include the provision of child and family services on reserve (Alberta v Elder Advocates of Alberta Society, 2011 SCC 24).

At issue in this case were the activities of the Aboriginal Affairs and Northern Development Canada (AANDC) [now called Indigenous and Northern Affairs Canada] in managing its First Nations Child and Family Services Program (FNCFS). The FNCFS program was initially developed to address concerns over the lack of child and family services provided by the provinces. It is to provide culturally appropriate child and family services to First Nations children and families on reserve. The services should be reasonably comparable to the services provided to other provincial residents in similar circumstances.

The Complainants, the Caring Society and Assembly of First Nations, argued that AANDC discriminates on the ground of race and/or...