The fate of thousands of First Nations children is in the hands of an administrative tribunal in a decision that could alter the course of child welfare funding in Canada.

Canada currently has two parallel systems in place to fund child welfare services, which aim to protect children from abuse and neglect. Ordinarily, individual Canadian provinces are responsible for funding child welfare services within their jurisdiction. However, Canada’s federal government is responsible for funding child welfare services for Canada’s indigenous population – notably its First Nations population – who live in allocated areas of land throughout the country, known as reserves.

Aboriginal Affairs and Northern Development Canada (“AANDC”) is the Canadian agency responsible for overseeing the implementation of on-reserve child welfare services. One of AANDC’s objectives while funding child welfare programs is to ensure that services are provided “in a manner that is reasonably comparable to those available to other provincial residents in similar circumstances”.

In 2007, two organizations, First Nations Child and Family Society of Canada, and the Assembly of First Nations (the “complainants”) filed a complaint to the Canadian Human Rights Commission (“CHRC”) in which they asserted that AANDC underfunds child welfare services for on-reserve First Nations children.

The complainants’ alleged that this underfunding, as of 2007, resulted in 27,000 First Nations children, or 1 out of 10 children, being placed in care as opposed to 1 out of 200 non-First Nations children – a figure that AANDC disputes.

Based on these figures, the complainants’ asserted that AANDC’s underfunding of welfare services was a form of adverse differential treatment, a prohibited ground of discrimination under subsection 5(b) of the Canadian Human Rights Act (“CHRA”).

The CHRA was enacted in 1977 with the purpose of protecting individuals from discrimination when employed by, or receiving services from, the federal government, a First Nations government or private companies regulated by the federal government. Complaints are originally investigated by the CHRC, and subsequently adjudicated upon by the Canadian Human Rights Tribunal (“CHRT”) if they are deemed to have merit.

While the complainants’ claim was initiated over 7 years ago and has had a protracted legal history, the majority of proceedings have centred on whether the CHRT should adjudicate the matter on its merits.

In 2011, the former CHRT Chairperson determined that the CHRT could not hear the merits of the case. She stated that the complainants were required, but had failed, to identify a valid “comparator” group to the federal government to establish their claim in discrimination. The decision drew rebuke, as the Supreme Court of Canada had stated days earlier, in the context of equality rights under the Canadian Charter of Rights and Freedoms, that it is “not necessary to pinpoint a mirror comparator group”.

On subsequent reviews – both at the Federal Court and Federal Court of Appeal – the Chairperson’s decision was found to be unreasonable and the decision was sent back to the CHRT to be heard on its merits by a newly comprised tribunal.

The substantive hearing on the merits of the case began last year and concluded this past October. The complainants are seeking a number of remedies in the case, including a declaration by the CHRT that AANDC funding is discriminatory and the formation of a national advisory committee to develop a new funding formula and oversee this new program.

If the tribunal rules in the complainants’ favour, the decision could have widespread ramifications for AANDC, which provides funding for a number of services for First Nations, and other indigenous peoples, in Canada.

Two outside interest groups, the Chiefs of Ontario and Amnesty International, provided submissions in the case.