The perils of proceeding without a skilled lawyer, however, came into sharp focus for me when it became clear that Canada was going to litigate the case on legal technicalities instead of directly engaging with the factual question of whether INAC's FNCFS program was discriminatory.
Hearings on the merits began in February of 2013 but were interrupted in April 2013, when I received thousands of pages of documents in response to my request for information on the federal government's funding approach for FNCFS under the Access to Information Act (110) (ATIA).
In this case, placing the children's interests first was particularly pressing, given the allegation that the failure of INAC's FNCFS program to implement Jordan's Principle was both driving children into foster care unnecessarily and denying them access to vital services.
After identifying myself, the official said that they would meet with me at another time, as I had issues with their FNCFS program and there was the matter before the CHRT.
INAC had planned to call KPMG as an expert witness, but changed their mind when KPMG's forensic audit of the Wen:de report revealed that the calculation of the shortfall in federal funding for FNCFS found in the Wen:de report "appear[ed] correct".
The Caring Society and the other parties noted the discrepancies between the CHRT's orders on FNCFS funding in Canada's 24 May 2016 compliance report regarding the 2016 budget.
(19) The lack of voluntary sector service access on reserve is discussed in Cindy Blackstock, "First Nations Children and Families: In Search of the Voluntary Sector" in Frederick Bird & Frances Westley, eds, Voices from the Voluntary Sector: Perspectives on Leadership Challenges (Toronto: University of Toronto Press, 2011) 173 at 173, 175-84 (presenting the findings of a study surveying FNCFS agencies serving 47 of the 196 First Nations reservations in British Columbia).
(24) See Indian and Northern Affairs Canada, Fact Sheet, "First Nations Child and Family Services" (October 2006), reproduced in First Nations Child and Family Caring Society of Canada, online: <https://fncaringsociety.com/sites/default/files/docs/Fact-Sheet-FNChild-Family-Services-Indian -Northern-Affairs.pdf> [INAC, "FNCFS Fact Sheet"].
(28) See Loxley et al, supra note 22 at 133, 189 (estimating additional revenue needs to approximately 109 million dollars); Indigenous and Northern Affairs Canada, "First Nations Child and Family Services", online: <https://www.aadnc-aandc.gc.ca/eng/ 1100100035204/1100100035205#chp2> (calculating FNCFS expenditures for 20132014 to 365 million dollars).
The AANDC argued that the numerous studies of the FNCFS should have little weight; that differences between level of services and programs offered on and off reserve may have little to do with funding and more about choices made by FNCFS about the service and programs they provide; and that the complainants did not provide any evidence to compare different funding models.
The Tribunal concluded the adverse effects generated by the FNCFS program and other provincial/territorial agreements perpetuated disadvantages historically suffered by First Nations people.
As for remedies, the Tribunal ordered that the AANDC remove most discriminatory aspects of the funding schemes it uses to fund FNCFS Agencies.