In this complaint, Canada takes the shameful position that its actions are not subject to the Canadian Human Rights Act, and that it is legally allowed to provide unequal government services to First Nations communities. Canada essentially argues that First Nations should not be allowed to bring human rights complaints regarding inequality in government services between Aboriginal and non-Aboriginal communities. Rather than work cooperatively to find solutions, the federal government is vigorously defending its legal right to provide inadequate, inferior services to First Nations communities.
The Mushkegowuk First Nations simply ask for the same quality of policing as in non-Aboriginal communities. All they are asking for is equality in policing services. To get to that goal, they seek improved policing in their communities and real world solutions.
Canada’s main legal argument is that discrimination cannot be based on a comparison between federal services (for First Nations) and provincial services (for non-Aboriginal communities). Canada argues that this federal/provincial comparison is not allowable under the Canadian Human Rights Act.
Canada’s argument applies to the full range of government services for First Nations people, including clean water, education, health, child welfare, etc. Generally speaking, First Nations receive services under federal jurisdiction while non-Aboriginal communities receive services under provincial jurisdiction. If federal/provincial comparisons are not allowed, a First Nation cannot bring human rights complaint seeking equal government services vis-à-vis non-Aboriginal communities. In other words, Canada essentially argues that First Nations residents are not entitled to equality in government services. This is a shameful position to take in light of the often-abysmal state of services in First Nations communities, from drinking water to schools.
Canada is making this same argument in two similar human rights cases. One is a human rights challenge regarding Aboriginal child welfare by the First Nations Child and Family Caring Society. The other is a human rights challenge regarding First Nations special education services by the Mississaugas of the New Credit First Nation.
Instead of working towards real world solutions, the federal government is obstructing this complaint at every opportunity using its technical legal arguments. At each step, Canada asks that the case be dismissed at a preliminary stage. The Canadian Human Rights Commission has already twice rejected Canada’s arguments.
So far, Canada has taken the following steps to try and obstruct and stop the case:
- Canada asked the Canadian Human Rights Commission to dismiss the case before an investigation could occur (the Commission issued a decision, refusing to dismiss the case);
- Canada challenged the Commission’s decision in Federal Court (Canada later dropped this Court application);
- After an investigation, Canada raised the same technical, legal arguments (the Commission issued a decision, refusing dismissal, allowing the complaint to move to the Tribunal stage);
- Canada challenged the Commission’s decision in Federal Court (this application was dropped one day before the oral hearing was scheduled, and long after the parties had compiled, written, and submitted their legal evidence and arguments); and
- Canada asked the Canadian Human Rights Tribunal to dismiss the case before holding an oral hearing (this request is pending).
The Mushkegowuk First Nations believe that Canada’s obstructionist position is contrary to what most Canadians would expect of their government.