The complainant: the Canadian Human Rights case on First Nations Child welfare.

• Author: Blackstock, Cindy

In February 2007, the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations filed a complaint under the Canadian Human Rights Act alleging that the Government of Canada's inequitable provision of child welfare services to 163,000 First Nations children, along with its flawed implementation of Jordan's Principle, was discriminatory on the prohibited grounds of race and national ethnic origin. The case was highly contested. By the time the final arguments were heard in 2014, the Government of Canada had made eight unsuccessful attempts to get the case dismissed on technical grounds and breached the law on three occasions. On 26 January 2016, the Canadian Human Rights Tribunal substantiated the complaint and ordered the Canadian Government to cease its discriminatory conduct. This article describes this historic case from the perspective of the executive director of the complainant, the First Nations Child and Family Caring Society of Canada, highlighting access to justice issues for equality-seeking Indigenous groups, children, and civil society. Recommendations for reform are discussed.

En fevrier 2007, la Societe de soutien a l'enfance et a la famille des Premieres Nations du Canada et l'Assemblee des Premieres Nations ont depose une plainte contre le Gouvernement du Canada en vertu de la Loi canadienne sur les droits de la personne. Cette plainte alleguait que la conduite du Gouvernement en matiere de prestation des services a la protection de l'enfance, offerts a 163 000 enfants des Premieres Nations, ainsi que les lacunes de mise en oeuvre du principe de Jordan, etaient discriminatoires pour les motifs interdits de la race et de l'origine ethnique et nationale. Ce cas fut fortement conteste. Au moment ou les plaidoiries finales furent entendues en 2014, le Gouvernement du Canada avait tente a huit reprises infructueuses de faire rejeter l'affaire pour des motifs techniques et avait viole la loi a trois reprises. Le 26 janvier 2016, le Tribunal canadien des droits de la personne a juge la plainte fondee et a ordonne au gouvernement canadien de cesser sa conduite discriminatoire. Cet article decrit ce dossier historique en adoptant la perspective du directeur general de la partie plaignante, la Societe de soutien a l'enfance et a la famille des Premieres Nations du Canada, et met en lumiere les enjeux d'acces a la justice pour les groupes autochtones, les enfants et la societe civile qui revendiquent l'egalite. Des recommandations de reforme sont abordees.

Introduction I. Red Tape and Duct Tape: Discrimination on the Ground II. Research to Nowhere: Reviews of INAC's FNCFS Program III. Writing the Complaint and Praying IV. Client-Solicitor Relationship: A Client's View A. Cross-Cultural Competency in the Client-Solicitor Relationship B. Cross-Disciplinary Impacts on the Client-Solicitor Relationship V. It Takes a Community of Children to Raise a Legal Case: The "I Am a Witness" Campaign VI. Procedural History: Best Interests of the Child v. Best Interests of the Government VII. Retaliation: Never Fight on Their Low Ground VIII. The Evidence IX. The Decision: The Challenge of the "Win" or "Win and Still Lose" Conclusion Introduction

The day before Prime Minister Stephen Harper issued an apology for the multi-generational harms arising from residential schools on 11 June 2008, (1) I was at Beechwood Cemetery visiting Dr. Peter Henderson Bryce, a former chief medical health officer for the Department of Indian Affairs. In 1907, Dr. Bryce's internal government report on the health of residential school students was leaked to the Ottawa Evening Citizen, noting that twenty-five per cent of the children were needlessly dying each year because of the Government of Canada's refusal to provide them with adequate tuberculosis treatment. (2) As Dr. Bryce vigorously pushed for the life-saving reforms, Canada retaliated by cutting his research funding, preventing him from presenting his findings at medical conferences, denying him appointments for which he was eminently qualified, and ultimately pushing him out of the public service. (3)

One hundred years after Dr. Bryce's report appeared in the newspaper, the First Nations Child and Family Caring Society of Canada (Caring Society) and the Assembly of First Nations filed a human rights complaint alleging that the Government of Canada, through the Department of Indian and Northern Affairs Canada (INAC), (4) discriminated against (163,000) First Nations children residing on reserve by failing to implement Jordan's Principle (5) properly and by providing inequitable child welfare services, contrary to the Canadian Human Rights Act (6CHRA). These alleged inequities arise because INAC requires First Nations Child and Family Services (FNCFS) agencies to use provincial and territorial child welfare laws on reserve, and the federal government funds the service at lower levels and with more restrictions compared to the funding that provinces and territories provide to children living off reserve. (7) I told Dr. Bryce that I would be back to visit when the kids won the case.

It would be another eight years until I could share the good news of the children's victory with Dr. Bryce. On 26 January 2016, the Canadian Human Rights Tribunal (CHRT) found the Government of Canada's flawed and inequitable provision of First Nations child welfare services to be discriminatory on the prohibited grounds of race and national or ethnic origin. (8) In its decision, the CHRT linked the discriminatory funding to the growing number of First Nations children coming into the care of child welfare, "acknowledging] the suffering of those First Nations children and families who are or have been denied an equitable opportunity to remain together or to be reunited in a timely manner." (9) The CHRT also "recognize [d] those First Nations children and families who are or have been adversely impacted by the Government of Canada's past and current child welfare practices on reserves." (10) The CHRT noted that INAC was aware of its flawed and inequitable child welfare funding for at least sixteen years, had access to solutions to address the problem, and yet repeatedly failed to take action. (11) When news of the decision broke, I asked, "Why did we have to bring the Government of Canada to court to get them to treat First Nations children fairly?" (12) Why would the federal government fight so vigorously to defend racism against children as fiscal policy?

While historians, legal scholars, and human rights activists will write thoughtfully about these and other questions, this article describes the historic, nine-year long First Nations child welfare case from my unique perspective as the executive director of the complainant, (13) the Caring Society. Using an access to justice lens, this article explains why the com plaint was filed, describes the nine-year procedural history of the case, including Canada's use of legal and illegal strategies to try to have the case dismissed before the facts could be heard, (14) and discusses the nesting of the case in a child friendly, public education, and engagement campaign, called "I Am a Witness." (15) The case narrative raises several access to justice issues, including: the right of First Nations clients to receive equal benefits under child welfare laws; the access of First Nations to human rights remediation; the right of children to participate in systemic cases; the effect of client-solicitor relationships, legal culture, and conventions on children's access to justice; the ability of small organizations to file public interest cases against change-resistant governments; and the retaliation of governments against human rights defenders. The article concludes by issuing recommendations to improve access to justice across these domains.

1. Red Tape and Duct Tape: Discrimination on the Ground

   I served as a child protection worker for the province of British Columbia between 1987 and 1995, where I was stationed primarily on the north shore of Vancouver. The urban population in our catchment area was culturally and socio-economically diverse, but the families we saw at the child protection office were more homogenous. They were often low-income First Nations and refugee families from traumatic backgrounds reported to child welfare for neglect concerns.

   At the time, reliable child welfare data was scant, but later studies confirmed what many of us saw on the front line: Aboriginal children are twice as likely as non-Aboriginal children to be placed in foster care. (16) The overrepresentation of First Nations children in foster care may be attributed to neglect fueled by poverty, poor housing, and parental substance abuse related to the multi-generational trauma arising from residential schools and other colonial experiences. (17) The sifting out of wealthy and middle-class families among neglect complaints is largely due to the child protection system's tendency to codify structural risk and historical disadvantage as personal and family deficits coupled with a dearth of child protection interventions targeting poverty, trauma, and addictions. (18)

   During my tenure with the province, working conditions were relatively good: the office was fully accessible; it had child-friendly interview rooms, a family visiting area, and a secure file area; and it complied with workplace health and safety standards. My salary was reasonable with a generous benefits package, including a pension indexed for inflation. Most importantly, we had the tools we needed to assist families. There was a very well developed array of specialized services within government and voluntary sector services, such as food banks, low-income housing, child development supports, parenting programs, family recreation, and mental health services. While I always wished we had more services, the range of services we had at our disposal was adequate to meet the...