The Broad Implications of the First Nation Caring Society Decision: Dealing a Death-Blow to the Current System of Program Delivery On-Reserve & Clearing the Path to Self-Government

• Main Author: Metallic, Naiomi
• Format: Text
• Language: unknown
• Published: Schulich Law Scholars 2018
• Subjects: First Nations; human rights; child welfare; essential services; discrimination; colonialism; Human Rights Law; Indigenous; Indian; and Aboriginal Law; Law; Canada
• Online Access: https://digitalcommons.schulichlaw.dal.ca/scholarly_works/155; https://works.bepress.com/naiomi-metallic/9/download/

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, its Executive Director, 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, most notably among these is the systemic underfunding of such services. Canada has decided not to appeal the decision. The decision is the first in Canada to begin to examine the problems and harms existing within the current system of program delivery in First Nations communities. These problems and harms are not unique to the delivery of child welfare on reserve, but extend to all core services including health, social welfare, assisted living, daycare, education, housing and infrastructure, policing and emergency services. In First Nations communities, all of these services, although delivered by First Nations themselves, are governed by a complex web of federal funding directives, policies and funding agreements, wherein the primary program delivery standard is ‘comparability’ with the provinces/territories services. The current system of program delivery on reserve has been variously described as “program devolution,” “self-management,” and “self-administration.” Unless referring to a specific feature of this system, I generally refer to all of it herein as the current system for program delivery on reserve, or “CSPD” for short. Over the years, the Auditor General of Canada has raised numerous concerns with CSPD. In 2011, the Auditor ...