First Nations child welfare ruling a precedent for other on-reserve issues, lawyers say

Aboriginal lawyers are "cautiously optimistic" Tuesday's human rights ruling will legally oblige the federal government to fix other inequities facing First Nations, including education, housing, access to clean water and health.

Government services that Canadians take for granted, 'First Nations people do not'

Aboriginal lawyers say Tuesday's human rights ruling that children living on reserves have been discriminated against sets an important precedent for complaints about underfunding in areas including education. (Sean Kilpatrick/Canadian Press)

Aboriginal lawyers are cautiously optimistic Tuesday's human rights ruling that Canada fails to provide equal services for children on reserves will legally oblige the government to fix other inequities facing First Nations, including education, housing, access to clean water and health care.

"It paves the way," Katherine Hensel, founder of a Toronto-based law firm serving aboriginal clients, told CBC News. "Discrimination infuses the entire relationship between the federal government and First Nations across the board in terms of government services." 

Lawyer Katherine Hensel hopes that the ruling will prompt the federal government to provide equitable funding for on-reserve services before other human rights complaints are filed. (Hensel Barristers )

In fact, there are a number of First Nations complaints already in line for consideration by the Canadian Human Rights Commission that will likely be affected, said Naiomi Metallic, a Halifax lawyer specializing in aboriginal law and constitutional rights. 

"You could make a complaint in this regard to every essential service on-reserve," Metallic said, noting federal auditor-general reports have repeatedly flagged disparities in funding for aboriginal people compared to what other Canadians get.

Access to special education for on-reserve children and equal policing in First Nations communities are two of the complaints before the commission, she said.

The discrimination ruling could apply to 'every essential service on-reserve,' says lawyer Naiomi Metallic. (Burchells LLP)

The tribunal decision, that failing to provide equal funding and resources for child welfare amounts to discrimination, sets "a really excellent precedent for all of these other cases or arguments in the queue about ... all of these services that are substantially underfunded," Metallic said. 

Hensel hopes the ruling goes beyond establishing a precedent and prompts the government to address the broader issue of underfunding for First Nations services, making further human rights complaints unnecessary. 

"There's child welfare, there's health, there's education, there's water, there's infrastructure, housing," she said. "Every single element of government services that Canadians take for granted, First Nations people do not.

"These are, for the most part across the country, treaty people who gave up a tremendous amount based on assurances that they would have access to what the rest of Canada had access to, and they simply haven't," she added. 

'Adult conversation' about funding

Jean Teillet, an aboriginal rights lawyer reached in Vancouver, said Tuesday's ruling criticized Canada's treatment of First Nations people "as if they are not an investment in our future," emphasizing the "minimal amount [of resources] we can get away with." 

Lawyer Jean Teillet says Tuesday's ruling calls out Canadians for providing the 'minimal amount we can get away with' for services on First Nations. (Pape Salter Teillet Barristers and Solicitors)

Although human rights cases don't cite precedent the same way courts do, Teillet said, the "damning evidence" in the judgment will have a significant effect on other human rights complaints involving services on First Nations. 

"[It] will be very hard for them to turn around and make some kind of contrary finding," she said. 

Despite the legal victory, the lawyers said, the federal government faces an enormous task when it comes to taking action. 

The next step has to be a "sea change" in its relationship with aboriginal people, Hensel said.    

"The newly elected Liberal government has said a lot of very fine words about their perception and their intentions in this regard," she said. "And now it's time for implementation."  

Despite her hope that further human rights complaints won't be necessary, if that implementation doesn't happen quickly, "They're coming," Hensel said. 

Metallic said she recognizes the necessary changes carry a big financial cost. 

"There's going to have to be an adult conversation about funding things appropriately," she said.