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Natives challenge Ottawa, band governments with human-rights complaints

Children rally for first-nations education reform as they take to Parliament Hill on June 11, 2012, to mark the fourth anniversary of the Prime Minister’s apology for the residential-school system.

Sean Kilpatrick/The Canadian Press

It's been a year now since aboriginal people have had the full use of the Canadian Human Rights Act, and they're using their new power to hold both the federal government and their own first nations governments to account, new data shows.

The cases involve fundamental conditions on reserves, and throw hundreds of millions of dollars in annual federal funding into question.

Statistics compiled by the Canadian Human Rights Commission show that 162 complaints were registered against first nations governments over the past year — mostly about on-reserve housing and eligibility to vote in band elections.

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"We're very pleased," acting chief human rights commissioner David Langtry said.

That's because some had suggested many aboriginal people wouldn't have the wherewithal to launch a challenge — a fear that clearly has not materialized, Mr. Langtry said.

Of those 162 files, 77 have been closed, and the others are still near the beginning stages of the commission's pipeline. That's a similar rate to non-aboriginal cases that progress through the human rights system, Mr. Langtry added.

"I'm encouraged by the extent to which people affected by the Indian Act, after over 30 years of virtual exclusion, are using the Canadian Human Rights Act as a potential catalyst for improving life on reserves," he said.

Challenges against the federal government, on the other hand, are far more advanced, and the stakes far higher.

Aboriginal people have now had three full years of being able to use the Canadian Human Rights Act to examine the federal government.

Before 2008, the act didn't cover matters under the Indian Act.

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In the past three years, first nations groups have registered 150 complaints against Ottawa.

Mr. Langtry said the most serious of them target the large disparities between federal and provincial funding for services such as child welfare, education and police.

Ottawa is fighting those cases on a technicality, saying federal funding for services is not covered by the human rights act.

Billions of dollars are at stake. If first nations complainants win the day, the federal government would likely be required to fund social services on reserves at the same level per capita as provincial governments fund similar services off reserves.

"It has huge ramifications," said Mr. Langtry.

Many experts anticipate the federal government will fight the rulings all the way to the Supreme Court if necessary.

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But if Ottawa's arguments hold sway, first nations will find it very difficult to make any kind of human rights claims in the area of social services, Mr. Langtry said.

"Our that's not what Parliament intended," he added.

"The federal government should have as much accountability as anyone else."

So far, the human rights commission has referred three such cases to the Canadian Human Rights Tribunal for a judicial ruling.

The most prominent — and most advanced — case against Ottawa is about child welfare. First nations groups argue that funding for child welfare on reserves is about 22 per cent lower than for children off-reserves. They say they should be treated equally.

The federal government tried, but failed, to argue that the case should not be heard, however, it is appealing that ruling.

Similar cases on special education and police services have also been referred to the tribunal.

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