Question Period Note: Canadian Human Rights Tribunal

• Our Government has been clear – our goal is comprehensive, fair, and equitable compensation that will further healing for those impacted by the historic inequities in First Nations child welfare.

• We maintain there are substantive unresolved questions on the CHRT’s jurisdiction.

• We remain committed to finding a fair way forward on compensation for First Nation children who may be outside of the CHRTs process.

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.

Jordan’s Principle is a legal requirement that Canada has committed to uphold. Jordan’s Principle ensures that First Nations children get the health, social and education services and supports that they require, when and where they need them.

In 2016, the Canadian Human Rights Tribunal (CHRT) found Canada’s FNCFS Program to be discriminatory and ordered Canada to immediately remedy the discrimination. The Tribunal also ordered Canada to cease applying a narrow definition of Jordan’s Principle and to take immediate measures to implement the full meaning of the Principle.

Since this initial ruling, the Tribunal has issued a number of subsequent orders, including remedial or compliance orders, for both FNCFS and Jordan’s Principle.

Jordan’s Principle:

In 2016 and 2017, the Tribunal issued three remedial orders aimed at ensuing Canada fully implemented the full meaning and scope of Jordan’s Principle. Most significantly, the 2017 order expanded the eligibility for Jordan’s Principle to all First Nations children, regardless of residence, applied a lens of substantive equality when assessing requests, imposed stringent timelines for the approval of requests, and required the government to publicize Jordan’s Principle.

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”. This interim definition was further expanded in the final order, issued July 17, 2020, by removing the requirement for urgent or life threatening needs.

On November 25, 2020 the CHRT released its final ruling on the definition of “First Nations child” for the purposes of eligibility under Jordan’s Principle. In this ruling, the Tribunal accepted the process established by the parties, as ordered by the CHRT in July 2020, to determine which children are eligible for consideration to receive services under Jordan’s Principle. Cases meeting any one of four criteria are eligible for consideration under Jordan’s Principle. Those criteria are the following:

1. The child is registered or eligible to be registered under the Indian Act, as amended from time to time;
2. The child has one parent/guardian who is registered or eligible to be registered under the Indian Act;
3. The child is recognized by their Nation for the purposes of Jordan’s Principle; or
4. The child is ordinarily resident on reserve.

The Tribunal further ordered Canada to fund First Nations and First Nations organizations for confirmation of First Nations identity, including funding for human resources, policy development and updating, internal governance, communication, coordination, professional fees, and administrative fees.

It is important to note that this decision only applies to the definition of First Nations child for the purpose of Jordan’s Principle.

FNCFS:

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 came into force on January 1, 2020.

On August 7, 2020, the Caring Society filed a motion of non-compliance against Canada, alleging that it has failed to provide sufficient funding for the provision of services to First Nations children and families where these services are delivered by provincial or Yukon agencies, and not by delegated FNCFS agencies. The Innu Nation has applied for, and been granted, interested party status in this motion. They will be permitted to file evidence and cross examine affiants, and make oral and written arguments.

On August 11, 2020 the CHRT ruled that substantive equality required that Canada continue to accept submissions and make reimbursements for Band Representative Services and Children and Youth’s mental health services on an ongoing basis, without imposing an inflexible deadline.

Major capital and small agencies are issues that remain before the CHRT around which we await decisions.

During the COVID-19 pandemic, 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 March 31, 2021. Partners were informed in March 2020.

Compensation:

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 willful and reckless conduct) per removed child and caregiving parent or grandparent, as well as for this children impacted by gaps, delays or denials under Jordan’s Principle, and their caregiving parents or grandparents. In the ruling, Canada was instructed to work with CHRT parties to develop a framework to implement the compensation order. The date for submitting the framework was December 10, 2019, however that date was later extended to allow for clarification from the Tribunal on areas of divergence (e.g., payment to deceased individuals, children in care prior to Jan 1/06 and who remained in care as of that date). 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 motion to stay was heard in Federal Court in November 2019. On November 29, 2019, the judge ruled against Canada’s motion to stay and ordered Canada to begin work with CHRT parties on the development of the compensation framework. A decision on the application for judicial review has not yet been rendered.

If pressed further
• 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 the discriminatory child and family service policies.

• Throughout this process, our focus remains advancing a plan that prioritizes the best interests of the individual child and puts the safety, well-being and security of that child at the forefront.

• 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.
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.

• On Jordan’s Principle we are improving supports to regional focal points, providing ongoing education, regular review of the operational guide, as well as efficient review of over 742,000 service requests since 2016. This allows products and services to be accessed by those requesting them as soon as possible.
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 they need due to discrimination.

• Over 742,000 requests for supports and services have been approved for children since 2016.

• We will be continuing conversations with the Parties to the Tribunal to address any outstanding concerns.
Jordan’s Principle-First Nations Identity
• On November 25, 2020, the CHRT issued the final order regarding the definition of “all First Nations children” in relation to Jordan’s Principle.

• The new definition includes children who are recognized by their Nation for the purposes of Jordan’s Principle, those who are ordinarily resident on reserve, and those who themselves are registered or are eligible to be registered under the Indian Act, or who have a parent who is registered or eligible to be registered.

• We recognize that this new definition will assist in closing gaps for a greater number of children.

• The Government of Canada will continue to meet all its obligations and ensure that First Nations children receive the care and services they need.
If pressed further on Jordan’s Principle-First Nations Identity
• The Government of Canada is presently implementing the CHRT order as it applies to eligibility criteria for First Nations children under Jordan’s Principle.

• We will be working with communities in the implementation of the CHRT order, and have committed funds to assist communities in the implementation.

• The Government is already ensuring that First Nations children who are entitled to be registered under Bill S-3 amendments can receive Jordan’s Principle services while their registration is pending.