By: Crystal Dorey, Communications Officer, KMKNO
The Assembly of Nova Scotia Mi’kmaq Chiefs continued their fight against the implementation of changes to the on-reserve Social Assistance Program by having their case heard at the Federal Court in Halifax on June 19 and 20, 2013.
Since early 2012, the Assembly has worked alongside Chiefs from New Brunswick and Prince Edward Island to reject the proposed changes to the on-reserve social assistance program, presented by Aboriginal Affairs and Northern Development Canada (AANDC).
The Chiefs, represented by Naiomi Metallic of Burchells LLP, pressed for legal action against the Federal Government when, despite efforts to demonstrate to AANDC how the proposed changes had major gaps and would have devastaing affects on the lives of community members on social assistance, AANDC continued to work towards an implementation date of April 1, 2012.
AANDC’s goal is to bring the on-reserve social assistance program to match the provincial system, which the Chiefs know are not comparable systems. First Nations communities do not have access to the services that the Provincial agencies do, circumstances on reserve can be different than off-reserve and Provincial services are often not available to community members on-reserve. In addition, this new approach would not include a housing supplement available to people off-reserve and would also involve a claw back the National Child Benefit, contrary to AANDC’s previous approach to social assistance on reserve.
The evidence reviewed in court showed that AANDC adopted this approach in order to achieve cost savings and reinvest these in active measures. Internal documents showed that AANDC staff also identified the same type of harmful impacts arising from the changes as the Chiefs had tried to demonstrate. Ms. Metallic argued that, although the Chiefs support measures to get community members into the workforce, this cannot be done at expense of gutting a recipient’s basic allowance and forcing them to make impossible choices between eating and paying for shelter and utilities. She also argued that any reform to social assistance should be undertaken through meaningful consultation with of First Nations’ leadership.
The main hearing, presided over by Justice André Scott, was open to the public and had approximately 60 people representing the First Nations communities in attendance. The support, shown by Chiefs, Social Development Administrators and community members alike, helped to demonstrate how important this decision is to the First Nations communities.
The courts heard arguments and evidence from the First Nations side on day one, with the Crown presenting their side on the facts and law on day two, followed by a rebuttal from Ms. Metallic. After the two days of court, Judge Scott opted to take time to review the materials and reserved to issue his decision in the coming months. When asked about how she thought it went, Ms. Metallic commented that the judge seemed well prepared, having read everything in advance, engaged and seemed to understand the issues. “That is the most I could hope for in terms of having a fair opportunity to put my clients’ case forward”, said Metallic.
Until written decision is received, the injunction to keep the old social rules/manuals in place will remain.
Ms. Metallic explains that there are several options available to the judge. He could decide that the social changes are unconstitutional or are an abuse of the government’s discretion, in which case Canada would not be able to try to impose the same kind of approach in the future. Or, he could find that the government had an obligation to meaningfully consult with the First Nations, in which case, Canada would have to engage in a consultation process before trying to pass similar changes. In the best case scenario, the judge could find in favour of the First Nations on all of the above grounds.
It is also possible that the First Nations could lose, in which case, the Chiefs would have the right to appeal. If the First Nations won, the government would also have a right to appeal and legal counsel would seek a stay of implementation of the changes until theere would be a decision from the Court of Appeal. The Chiefs maintain that their first priority is to ensure that community members are protected and respresented fairly in these decisions.