Question Period Note: Canadian Human Rights Tribunal

• We intend to compensate First Nations children in care who were harmed by discriminatory child and family service policies and are looking for a solution that is comprehensive, fair and equitable.

• Following CHRT’s orders, we have worked with the Assembly of First Nations, the First Nations Child and Family Caring Society and other interested parties to achieve a compensation framework that includes key supports for those affected and that is led by First Nations communities and organizations.

• We remain committed to bringing this work to a successful conclusion.

BACKGROUND

Indigenous Services Canada (ISC)'s First Nations Child and Family Services (FNCFS) Program provides funding to support the safety and well-being of First Nation children on reserve. Funding is provided to FNCFS agencies, provinces and the Yukon Territory to support the delivery of prevention and protection services on-reserve. ISC does not deliver the services. These services are provided in accordance with the legislation and standards of the province or territory of residence and in a manner that is reasonably comparable to those available to other provincial residents in similar circumstances, within ISC’s Program authorities. Funding under the FNCFS Program is provided according to a prevention-based funding model.

In 2016, the Canadian Human Rights Tribunal (CHRT) found Canada’s FNCFS Program to be discriminatory and ordered Canada to immediately remedy the discrimination. On February 1, 2018, the Tribunal added items to its previous order, including paying the actual costs of FNCFS agencies in prevention and other areas. The Department is working closely with the parties to the complaint – the Assembly of First Nations, the First Nations Child and Family Caring Society, the Chiefs of Ontario, Nishnawbe Aski-Nation, the Canadian Human Rights Commission and Amnesty International – to fully implement the various orders of the Tribunal.

In January 2018, the Government of Canada hosted an Emergency Meeting on Indigenous Child and Family Services, with national and regional Indigenous leadership, as well as federal, provincial and territorial governments, to discuss the causes that lead to the high rate of Indigenous children in care and how to work together towards systemic reform. At that meeting, the Government announced its commitment to six points of action that included the potential for federal legislation, as called for in the Truth and Reconciliation Commission’s Call to Action #4; continuing to fully implement previous CHRT orders (from 2016 and prior to September 2019); reform First Nations child and family services including moving to a flexible funding model; and work with partners to shift the focus of programming to culturally-appropriate prevention, early intervention, and family reunification.

The Act respecting First Nations, Inuit and Métis children, youth and families (Act) was co-developed with Indigenous, provincial and territorial partners and received Royal Assent on June 21,2019. The Act will come into force on January 1, 2020.

On February 21, 2019, the CHRT addressed a new complaint regarding the definition of a First Nations child for the purposes of implementing Jordan’s Principle, and issued an interim relief order stating that Canada “shall provide First Nations children living off reserve who have urgent and/or life threatening needs, but do not have (and are not eligible for) Indian Act status, with the services required to meet those urgent and/or life-threatening service needs, pursuant to Jordan’s Principle”.

On September 6, 2019, the CHRT released an Order on compensation. The Tribunal ordered Canada to pay the maximum amount of $40,000 ($20,000 for pain and suffering and $20,000 for wilful and reckless conduct) per child and parent or grandparent. Canada is required to report back to the Tribunal by December 10, 2019, on a compensation process agreed to by the complainants. A failure to reach an agreement will result in the panel ordering one of its own creation. On October 4, 2019 the Attorney General of Canada filed a Notice of Application for Judicial Review and a Motion to stay with the Federal Court. The compensation ruling remains in effect unless it is stayed by the Federal Court. A decision on the application for judicial review has not yet been rendered.

There remains four outstanding orders to come from the CHRT on the following issues: 1) major capital; 2) band representative services actual costs; 3) small agencies; and 4) the definition of a First Nations child for the purposes of Jordan’s Principle.

During the COVID-19 epidemic, ISC has expanded eligible expenses to support First Nations agencies and communities in addressing emergency concerns. Additionally, ISC recently introduced a national temporary measure to ensure that services already funded through the First Nations Child and Family Services Program are maintained for all First Nations youth who reach the age of majority or who are past the age of majority but are in special care arrangements, between at least March 9, 2020 and September 30, 2020. Partners were informed in March 2020.

If pressed on compensation
• The over-representation of Indigenous children in care is a sad and dark part of our shared history that we must address.
• We have been clear – we intend to compensate First Nations children harmed by discriminatory child and family service policies.
• Our goal remains a comprehensive, fair and equitable settlement that will further healing.
• We have worked closely with the Parties and found consensus on most of the key areas for a safe compensation process, as part of the joint Framework for the Payment of Compensation that has been filed with the Tribunal.

If pressed on Compliance:
• We continue to work with the parties to the complaint on issues arising from the CHRT rulings.
• Resources including additional staffing and process review as part of Continuous Quality improvements to address CHRT orders are ongoing.
• We are improving supports to regional focal points, providing ongoing education, regular review of Standard Operating procedures, as well as efficient review of over 572, 000 service requests since 2016. This allows products and services to be accessed by those requesting them as soon as possible.

If pressed on continuing with Judicial Review:
• Our government is committed to seeking an equitable, fair and comprehensive settlement to all proceedings that will ensure long-term benefits for individuals and families and enable community healing.
• We have brought the Judicial Review to obtain clarity on certain issues so that we can focus on what’s really important – compensating those who have been wronged.

If pressed on the Moushoum class action :
• Our government has been clear that we intend to compensate First Nations children harmed by discriminatory government policies related to First Nations child and family services.
• The issuance of a second proposed class action by the AFN has complicated the situation in that only one can go forward to certification. We hope that the two groups can agree to go forward together.
• Counsel for the two class actions asked for time to hold discussions. We agreed to that request.
• We will continue to work with all parties to move this important matter forward.

First Nations Child and Family Services Program – Reform Efforts To Date
• We’ve more than doubled funding for the First Nations Child and Family Services Program based on agencies’ actual needs and with an emphasis on prevention – increasing from $681 million in 2015-2016 to $1.7 billion in 2019-2020.
• We passed co-developed legislation last year that enables Indigenous communities to assert jurisdiction over child and family services, and establishes minimum standards to ensure the best interests of Indigenous children.
• We are ensuring that there is an appropriate framework for Indigenous children to be cared for in the right way, with connections to their communities, cultures, and languages.

Jordan’s Principle – Specific Case (M.J.)
• We are working with partners to advance the well-being of Indigenous children.
• While we cannot comment on a specific case, we are committed to ensuring that no ‎First Nations child faces barriers in receiving the support or service he or she needs due to discrimination.
• Over 572, 000 requests for supports and services have been approved for children since 2015.
• We will be continuing conversations with the parties to the Tribunal to address any outstanding concerns.

Jordan’s Principle-First Nations Identity
• Our Government is working with partners to continue full compliance of Tribunal orders on Jordan’s Principle.
• For Jordan’s Principle, we have expanded eligibility to non Status First Nations children living on reserve, non Status First Nations children who could be eligible for status, and non-Status First Nation children ordinarily resident on reserve.
• In accordance with the Tribunal’s February 2019 Interim Relief Order, we have expanded eligibility to First Nations children who do not have status nor are eligible for status registration, have urgent and/or life threatening needs, but are recognized by their Nation.
• We are currently waiting for the Tribunal to issue a ruling on the definition of First Nations.

If pressed on the Department’s costs related to CFS legal challenges:
• Our commitment to compensate First Nations children harmed by discriminatory child and family services policies is firm.
• Our goal remains a comprehensive, fair and equitable resolution to compensate Indigenous children harmed by discriminatory government policies.
• We continue to work with all parties to move this important matter forward.
• We’ve more than doubled funding to child and
family services agencies, based on actual needs and with an emphasis on prevention – increasing from $681 million in 2015-2016 to $1.7 billion in 2019-2020.

AFN Class Action on Compensation
• Our Government fully agrees – we intend to compensate First Nations children harmed by discriminatory child and family services policies.
• We remain focused on delivering fair and equitable compensation.
• We hope all parties can work together so that we can continue advancing toward our shared goal of compensating children.
• We made a commitment and nothing about our commitment changes. We will continue to work with all relevant parties to ensure we make this right.

NAN Participation in Compensation Process
• The Canadian Human Rights Tribunal ordered us to enter into discussions with the Assembly of First Nations and the First Nations Caring Society to establish an independent process for compensation.
• We have had productive discussions involving all of the parties to the CHRT litigation
• We appreciate the feedback NAN provided but we all agreed to engage in confidential conversation and will honour that.

Compensation for parents of children who died in care
• The Tribunal has provided guidance on this important issue.
• We have worked with the Parties to seek consensus on a number of key areas for the process for compensation, which are included in our joint submission.
• Negotiation, rather than litigation, remains this Government’s preferred method of resolution.