(A boy eats an ice cream as he stands in the communal kitchen area for a dorm-style trailer offering temporary housing in Attawapiskat, Ont. Tuesday November 29, 2011. After months of playing soft ball with the federal government in the hopes of improving conditions on reserves, First Nations are now switching to a hard-ball approach.Child welfare advocates, the Assembly of First Nations and the Canadian Human Rights Commission are confronting the federal government in federal court this week over what they say is systematic — and discriminatory — underfunding for child welfare. THE CANADIAN PRESS/Adrian Wyld)

OTTAWA - After months of playing soft ball with the federal government in the hopes of improving conditions on reserves, First Nations are now switching to a hard-ball approach.

Child welfare advocates, the Assembly of First Nations and the Canadian Human Rights Commission are confronting the federal government in federal court this week over what they say is systematic - and discriminatory - underfunding for child welfare.

They say the case has broad implications for the funding of education, social services and policing, as well as the ability of First Nations people to use the courts to claim respect for their basic human rights.

"It's got implications in every other area of equity," says Cindy Blackstock, executive director of the First Nations Child and Family Caring Society that is leading the charge.

The case has been brewing for years, but has been overshadowed by the more cooperative approach that dominated First Nations-government relations for the past year.

With a First Nations-Ottawa summit in the works for this winter, the federal government and native leaders agreed to a joint process that promised to set up panels on education, governance and jobs.

Both sides heralded the process as a way to put an end to the legal wrangling and confrontational negotiation that has long dominated the relationship.

But the summit came and went without concrete actions to improve conditions on reserves, leaving many chiefs pinning their hopes on the upcoming budget, political pressure and ongoing lawsuits as ways to push Prime Minister Stephen Harper to make immediate changes.

"I would like to see him do something, not just say something," says Blackstock.

This week's Federal Court hearings will come with news releases, a Valentine's Day rally, singing, websites, letter-writing and children making snow angels on Parliament Hill.

The case itself is far more complex.

Three days of hearings are scheduled to start today (Monday) although a decision is not widely expected immediately.

If the Caring Society and its supporters get their way, they will persuade the court that the Canadian human rights tribunal should hear out the arguments of both sides in their entirety.

They want affirmation that federal services provided to First Nations are directly comparable to services provided by provincial governments to all other Canadians.

Then, they plan to argue that native kids receive significantly less funding than off-reserve kids in terms child and family services - despite the fact that First Nations children are far more likely to be in state care than non-native children, and that the roots of child welfare problems on reserves run very deep.

"Equality should be the floor, not the ceiling," said Blackstock.

The tribunal dismissed the case last year on a technicality. It ruled that since the federal government did not fund child welfare for any other group except First Nations, there was nothing the tribunal could use to compare Ottawa's services and determine discrimination.

The Caring Society and its supporters are now appealing, and are prepared to fight the case to the bitter end, said David Langtry, acting head of the human rights commission.

"It's important enough we would take it all the way to the Supreme Court," he said in an interview.

A win for First Nations and human rights commission would mean First Nations people could ask the courts to force Ottawa to match provincial funding not just for child welfare but also for education, health, social services and policing, he said.

Tight budgets are not a valid excuse, added Blackstock.

"Racial discrimination against children is not something that should be subject to fiscal restraint," she said.

But a loss would mean that First Nations would not be able to take full advantage of recent legislation that gave them full access to the Human Rights Act, he explained.

He said the federal Conservatives were strong proponents of that legislation, but have since fought many First Nations attempts to use it.

If Aboriginal Affairs is successful in killing the child welfare case, any argument in favour of equal funding for education, health, social services or policing would likely suffer the same fate, Langtry said.

"It would not be able to be heard."

For its part, Aboriginal Affairs won't comment directly on the case. But Michelle Yao, a spokeswoman for Minister John Duncan, points out that funding for child welfare has been on the upswing.

Plus, she says Ottawa has modified its approach to work more closely with many of the provinces and to better target prevention of child abuse and neglect.

"We are working toward having all jurisdictions on board within the coming few years," Yao said.

Federal funding for First Nations child and family services has risen from $238 million in 1998 to about $550 million in funding in 2009.

First Nations leaders don't deny that federal funding has increased and some attempts have been made at rethinking how to deal with the huge number of native children in some kind of state care.

But they say it's not nearly sufficient to deal with a problem that now sees up to three times as many children in care than at the peak of the residential school fiasco.

"Canada will treat First Nations kids with the justice and equity they deserve," says a determined Blackstock. "The only question is, how embarrassed do they want to be."