A Human Right to Self-Government Over First Nation Child and Family Services and Beyond: Implications of the Caring Society Case

Abstract

On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, headed by Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its funding formulas, cause a number of harms to First Nations children and families that amount to discrimination. Canada did not appeal the decision.

Public discourse following the case emphasized that INAC can no longer underfund First Nations child welfare services as compared to the provinces/territories’ funding of similar services to other residents of Canada. However, the case goes much further than setting out this minimum standard of formal equality. In determining what the non-discriminatory treatment of First Nation children and families entails, the Tribunal held that the standard of substantive equality requires that First Nations people receive child and family services that meet “their cultural, historical and geographical needs and circumstances.” The Tribunal did not qualify that this requirement relates only to the funding; indeed it suggested that First Nations child and family services as a whole, inclusive of funding, must meet this standard.

Despite the fact that the word “self-government” is never used in the decision, taken to its logical conclusion, this article argues that the case implies that First Nations have such a right in regards to children and family services. Further, this paper aims to show that a full appreciation of the workings and harms of the FNCFS Program, paired with the two key propositions from Caring Society — that, as a matter of human rights: (1) First Nations are entitled to child and family services that meet their cultural, historical and geographical needs and circumstances, and (2) such services cannot be assimilative in design or effect — firmly ground the argument that First Nations have a human right to self-government over child and family services. Furthermore, the author advances that, because the main structural features and harms of the FNCFS are common to virtually all other essential service programs on reserve, the final implication of the Caring Society case is that a human right to self-government likely extends to all First Nations essential services.

Keywords: First Nations, Child Welfare, Self-Government, Self-Determination, Human Rights