Issue 2: A Human Right to Self-Government over First Nations Child and Family Services and Beyond: Implications of the Caring Society Case

Abstract

On 26 January 2016, the Canadian Human Rights Tribunal released a watershed decision in First Nations Child and Family Caring Society of Canada et al v Attorney General (Caring Society), finding that the Department of Indigenous and Northern Affairs’ (INAC) design, management, and control of child welfare services on reserve, along with its funding formulas, cause a number of harms to First Nations children and families that amount to discrimination. A full appreciation of the workings and harms of INAC’s First Nations Child and Family Services Program (the FNCFS Program), paired with the two key propositions from the tribunal’s decision—that, as a matter of human rights: (1) First Nations are entitled to child and family services that meet their cultural, historical, and geographical needs and circumstances, and (2) such services cannot be assimilative in design or effect—firmly ground an argument that First Nations have a human right to self-government over child and family services. Moreover, because the main structural features and harms of the FNCFS Program are common to virtually all other essential service programs on reserve, the final implication of the Caring Society case is that a human right to self-government likely extends to all First Nations essential services