Child-welfare ruling raises questions about role of rights tribunal

Commentary, Tom Flanagan

The Canadian Human Rights Tribunal ruled this week that federal financing of First Nations’ child-welfare services is inadequate and discriminatory, and thus violates the Human Rights Act.

Recognizing that it lacks the expertise to reform child welfare, the tribunal said it will bring together the Indigenous and Northern Affairs department and the complainants to develop new funding formulas. The clear implication is that a lot more money needs to be spent, though no amount is mentioned in the tribunal’s book-length ruling.

Political ironies abound here. The underfunding of on-reserve child-welfare services goes back to Paul Martin’s budget-balancing economy drive of 1995-96, which put a 2-per-cent cap on increases for aboriginal affairs. Now, Justin Trudeau’s government has to fix things, not the first time a Liberal government has to deal with a situation that dates back to a previous Liberal government.

As well, the tribunal could accept a complaint and render a decision only because 2008 legislative amendments under the previous Conservative government, over objections of the Assembly of First Nations, made aboriginal affairs subject to the Human Rights Act. Meanwhile, Mr. Trudeau’s new Clerk of the Privy Council, Michael Wernick, was deputy minister of aboriginal affairs from 2006 to 2014, where it was his job to administer the department’s child-welfare policy.

The Liberal government probably won’t appeal the ruling; Prime Minister Trudeau has already announced that he intends to spend more money on First Nations. And the department’s funding formulas have been subjected to repeated critiques, including by the Auditor-General. Criticisms include that the formulas emphasize custodial protection of children over prevention of neglect and abuse, and do not recognize the greater needs of on-reserve communities.

The government will probably direct the department to enter discussions with the AFN and the First Nations Child and Family Caring Society (whose director, Cindy Blackstock, was the principal complainant in the case) to create a new set of funding formulas. One can only wish them luck, knowing the provinces will also be involved, since child welfare is fundamentally a provincial jurisdiction and the federal government is there only because of its constitutional responsibility for First Nations.

Yet, whether the outcome in this case is acceptable or not, the role of the rights tribunal raises serious questions about how spending decisions are made in a parliamentary democracy.

One oddity is that while failure to match provincial standards of child welfare was a major reason for holding the federal program to be discriminatory, no evidence was entered about the effectiveness of provincial child-welfare programs. The tribunal performed legal legerdemain to show that such evidence was not necessary, thus avoiding tough questions. Provincial child-welfare services have often been subjected to withering critiques for ignoring and endangering native children (even in Manitoba, where much of this task has been delegated to native organizations).

Standard constitutional theory holds that the legislative branch (Parliament) appropriates money, while the executive branch (cabinet and the public service) spend it, within the guidelines set by legislation. In practice, cabinet (mainly the minister of finance with the support of the prime minister) is responsible for aggregating various spending demands into a total budget consistent with available revenue.

Now we have a quasi-judicial body, the rights tribunal, holding that a federal service is discriminatory because it is underfunded. But the tribunal does not have to raise money through taxes, nor does it have to reconcile competing demands.

Where does this end? All client groups believe that government services affecting them are underfunded. Balanced budgets, already an endangered species, will be as dead as the dodo if client groups can regularly get judicial or quasi-judicial orders for government to increase spending for their favoured services.

This op ed was originally published by The Globe and Mail on Thursday, January 28, 2016: