Assembly of First Nations National Chief Perry Bellegarde looks on as First Nations Child and Family Caring Society Caring Society Executive Director Cindy Blackstock speaks about the Canadian Human Rights Tribunal regarding discrimination against First Nations children in care, during a news conference in Ottawa, Tuesday January 26, 2016. THE CANADIAN PRESS/Adrian WyldAdrian Wyld/The Canadian Press
The whole premise of the ruling this week of the Canadian Human Rights Tribunal is bewildering. The idea – and the fact – is that child-welfare services for First Nations children delivered by the federal government, on reserves, are severely underfunded when they are compared with the similar child-welfare services delivered to First Nations by provincial governments.
So naive readers would expect that the tribunal would go through an arithmetical exercise, contrasting per-capita spending by Ottawa on aboriginal children in need of protection with the corresponding per-capita spending by the provinces.
Those readers of the ruling will be confused and disappointed, after 182 pages. Instead, they will learn about rules of thumb such as that, over the years, typically 6 per cent of indigenous children are "in care," that is, not living with their own families, and that 20 per cent are child-welfare cases.
It is in some ways a bewildering ruling, and it deserves credit nonetheless. It suggests that child-welfare services to native Canadians on reserves appear to be significantly underfunded – despite the fact that these communities likely need above-average funding. The tribunal also rightly says that child-welfare social work should be carried on, whenever possible, so as to keep children in or near their families, immediate or extended, in their own communities. "Least disruptive measures" is a much-repeated phrase, and rightly so.
The tribunal paints the picture of an on-reserve child welfare system that is underfunded, and whose measures are anything but least disruptive. "There are approximately three times the numbers of First Nations children in state care than there were at the height of the residential schools in the 1940s."
In other words, for a child in the care of the state, the contemporary equivalents of the notorious residential schools, and the subsequent "sixties scoop" (a massive adoption of indigenous children by non-indigenous adopting parents, with the best of intentions), are alive and arguably as badly off as ever.
So far, there is no happy, or at least happier, end in sight. The tribunal says that many natives look upon social workers as part of yet another attempt at child abduction – a "hostile working environment," as the decision puts it. Up to a point, they may be right. Under the current system, indigenous children in "care" tend not to thrive.
The question of money isn't directly addressed in the CHRT ruling, but it is of course a huge factor. One of the many daunting passages in the decision is the cost of transporting social workers, as a "challenge for Children's Aid Societies," for example in Northern Ontario, where some native communities don't have year-round access by road, so that social workers have to fly in and out. "In fact, one agency was required to make up to 80 flights a day," says the tribunal.
It all leaves the reader wondering if it might be better to have more resident social workers living on remote reserves. After all, reserves have resident schoolteachers for most of the year. In principle, the same should apply to social workers, who could live there and visit troubled families, at flexible times. Yes, this is going to cost more than the current, underfunded native child-welfare system. But Canada should be spending most where problems are greatest. The tribunal's figures suggest that we have been doing the exact opposite.
The remoteness of many native communities is inextricably linked with their manifold problems. That doesn't mean their residents should have to simply pack up and move to cities. For many, that would perpetuate the traumas of the past – yet another "scoop," or another attempt at forced modernization.
As it happens, a former deputy minister of the department that was then called Aboriginal Affairs and Northern Development Canada, appears in the CHRT. Michael Wernick is now the Clerk of the Privy Council and the head of the federal civil service. His insights from his time as deputy minister, from 2006 to 2014, will be valuable.
Back in 2009, a Commons committee held a hearing about the auditor-general's report on Aboriginal Affairs. Mr. Wernick was quite blunt: "What we had was a system that basically provided funds for kids in care. So what you got was a lot of kids being taken into care. And the services agencies didn't have the full suite of tools, in terms of kinship care, and so on."
The point of the CHRT ruling is not only about the funding of federal programs, relative to their provincial counterparts. Its importance is the conclusion that the federal funding structures still "perpetuate the incentives to remove children from their homes."
It's still hard to see what comes next. Human rights tribunals aren't normally in the business of inviting the government, non-governmental organizations, activists and charities to get together to construct complicated budgets, let alone co-operatively, and then report back. Yet that is what this tribunal has done. It's legally questionable, but practically speaking, it's not a bad idea.
This strange process should not be just left to flounder. Great expectations have been raised, not least by Prime Minister Justin Trudeau. Good luck to Carolyn Bennett, the already heavily burdened Minister of Indigenous Affairs.
The core message in the CHRT's sprawling decision is that Canada should not be guilty of false economies when it comes to kids in care, and the rule of "least disruptive measures" in indigenous child welfare must be respected whenever possible. The message should be heard, and acted upon.