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
Caring Society, Canadian Human Rights Tribunal, Cindy Blackstock, Program Delivery on Reserve, Aboriginal and Indigenous Rights, First Nations Self Government, Child Welfare, Essential Services, Colonialism
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 General went so far was to say that it “severely limit[s] the delivery of public services to First Nations communities and hinder[s] improvements in living conditions on reserves.” The CSPD, which has been in place for decades despite several calls for reform by the Auditor General and others, is so convoluted that it is almost impenetrable. But the Caring Society decision has shed light on some of it ugly features and, most importantly, arms First Nations with the necessary tools to finally dismantle this entirely unacceptable system.
In this paper, I detail how CSPD has come to be, how it operates and how it has persisted over numerous decades despite several calls to implement self-government in its stead. Next, I shed a light on all of its ugly features by setting forth an inventory all of the problems and the harms it causes First Nations people. Systemic underfunding is but one among many of the serious harms caused by CSPD. Finally, I discuss how the Caring Society decision has discredited significant parts of CSPD and how the decision can be used to unravel the rest. I argue that the decision points us to the one true alternative to this unacceptable system — First Nations self-government — which is long overdue.
Naiomi Metallic, "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" (LLM Major Research Paper, Osgoode Hall Law School of York University, 2016) [unpublished].
Administrative Law Commons, Human Rights Law Commons, Indigenous, Indian, and Aboriginal Law Commons, Jurisprudence Commons, Legislation Commons