The Canadian Human Rights Tribunal does not have the power to ensure its rulings are followed or to dictate how public money is spent, the federal government has argued in response to accusations it has not met a tribunal demand to end the discriminatory underfunding of Indigenous child welfare.
When it appears before the tribunal at a three-day hearing next week, the government will say it is doing all it can to meet the tribunal's year-old demand that it raise funding for social services on reserves to the level provided elsewhere in Canada and that it adhere to Jordan's Principle, which says Indigenous children should not be denied medical treatment if federal and provincial governments can't agree about who should pay.
But the Attorney-General says in a document filed with the tribunal this week that "the tribunal does not have the statutory authority to enforce its own orders."
The hearing was prompted by non-compliance motions filed late last year by the First Nations Child & Family Caring Society, the Assembly of First Nations, the Chiefs of Ontario and the Nishnawbe Aski Nation, all of whom say the government has failed to comply with the tribunal's ruling in January, 2016.
In a written response, the government said it has implemented the tribunal's ruling "as far as it can do on its own." Future changes, it said, will have to be done in partnership with First Nations, the provinces and other stakeholders.
The government pointed out that the 2016 budget committed an additional $634.8-million over five years for First Nations child and family services and said it had started nation-to-nation talks on reforming the on-reserve welfare system.
"The challenge in providing funding for immediate relief based on actual need is that there are information gaps regarding the needs of specific agencies," the government said. "Canada is currently working to address this challenge."
Meanwhile, it said, the narrow definition of Jordan's Principle has been expanded and, as of Feb. 23, the government had paid more than $12-million for services or supports in approved cases. "Any publicly funded service that is available to other Canadian children is certainly eligible under Jordan's Principle and has been covered when brought forward," the government said in its response.
At the same time, the government rejected a request from the Caring Society that an outside lawyer be brought in to ensure that the government is complying with the tribunal's order. The government said an enforcement of that oversight would "exceed the tribunal's jurisdiction and invite it to engage in political decision-making."
Tribunals, the government said, "should resist the temptation to directly oversee or supervise the administration of their orders. They should generally operate under a presumption that their rulings will be executed with reasonable diligence or good faith."
While the Caring Society and the other Indigenous organizations that filed non-compliance motions may not agree with the way the government is fulfilling the tribunal's orders, the government said, "there is no requirement on Canada to seek their approval regarding the approach taken."
Cindy Blackstock, the executive director of the Caring Society, said the argument that the tribunal does not have the power to oversee the execution of its orders "was kind of a shocking thing for me to see." And, after the century of abuse that Indigenous children suffered at residential schools, she asked, why would the government object to oversight?
The government has gone "maybe 25 or 30 per cent" of the way toward complying with the tribunal's ruling, Dr. Blackstock said. Because welfare services are still not universally available, she added, "First Nations children that are interacting with child welfare are continuing to be removed [from their homes] unnecessarily."