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Judge orders rights tribunal to revisit native welfare complaint

A child reaches through a broken window to open the door of a house on the Pikangikum reserve in Northwest Ontario on Jan. 5, 2007.

John Woods/John Woods/The Canadian Press

Native groups have won a key Federal Court decision ordering the Canadian Human Rights Tribunal to take another look at their complaint that Ottawa is discriminating against them by underfunding child welfare services on reserves.

The litigation is critical because, activists say, the government is arguing the Human Rights Act does not apply to federally-funded services for first nations, thus shielding Ottawa from any discrimination complaints alleging that it failed to finance natives adequately for clean water, housing, education or health care.

In a ruling released Wednesday, Madam Justice Anne Mactavish said the Canadian Human Rights Tribunal was wrong in siding last year with Ottawa's position and dismissing the complaint.

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"The decision was unreasonable as the Tribunal failed to provide any reasons as to why it could not consider the complaint," Judge Mactavish wrote in her 109-page ruling.

She ordered the rights board to appoint another panel to review the complaint again.

The complaint was filed in 2007 by the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations.

The case focused on Directive 20-1, a 1991 funding formula used by the federal government of Canada to fund child and family services on native reserves.

The complaint alleged that, on average, Ottawa provided 22 per cent less funding for a native child on reserve than one living outside.

As native children who have been placed in foster care outside reserves are getting more resources, "a disproportionate number of First Nations children are removed from their homes, thus perpetuating the legacy of the residential school system," the complaint said.

The federal government argued the case should be dismissed because Ottawa does not directly deliver child-welfare services.

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Government lawyers also noted that Ottawa doesn't fund child welfare services for anyone other than native children living on reserves.

Therefore, the government argued, there was no "comparator group," that is a benchmark to gauge how Ottawa's funding compared with similar funding for non-natives.

In its decision last year to dismiss the complaint, the tribunal agreed with the government's view that there was no comparator group.

However Judge Mactavish, who once chaired the Canadian Human Rights Tribunal, said such a strict interpretation was not reasonable and ran counter to the intents of the Canadian Human Rights Act.

The judge also raised questions about the way Shirish Chotalia, the chairperson of the Human Rights Tribunal, managed the case.

"In my view, the sheer volume of extrinsic materials `vetted' by the Tribunal cannot help but raise real concerns about the fairness of the process followed in relation to the motion to dismiss," Judge Mactavish wrote.

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Activists say the case affects more than 160,000 children now living on reserve.

Services that are usually provided by provinces, such as education and child welfare are funded on reserves by the federal government.

It was only last year that, under new legislation, Canada's 700,000 aboriginal people could file human rights complaints about their treatment under the Indian Act.

Ottawa says that change is not relevant in this case because federal funding of child welfare flows from agreements between the federal government and recipient agencies.

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