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62-2016 Full and Proper Implementation of the historic Canadian Human Rights Tribunal decisions in the provision of child welfare services and Jordan’s Principle

on May 9, 2017

TITLE: Full and Proper Implementation of the historic Canadian Human Rights Tribunal decisions in the provision of child welfare services and Jordan’s Principle

SUBJECT: Child Welfare

MOVED BY: Cheryl Casimer, Proxy, Tobacco Plains Indian Band, BC

SECONDED BY: Chief Ian Campbell, Squamish Nation, BC

DECISION Carried by Consensus

WHEREAS:

A. The Federal Government of Canada funds First Nations child and family services on reserve through Indigenous and Northern Affairs Canada (INAC).

B. Jordan’s Principle is a child-first principle which provides, in the matter of public services available to all other children, that where jurisdictional disputes arise between Canada and a province or territory, or between government departments in the same government, the government or department of first contact pays for the service, and can seek reimbursement from another government or department after the fact.

C. As an example, First Nations children in British Columbia are funded in accordance with Directive 20-1 which provides the lowest level of child welfare funding among INAC’s four funding approaches. This means that culturally based prevention services to keep children safely at home are not available, contributing to growing numbers of children in foster care.

D. In 2007, the First Nations Child and Family Caring Society of Canada (the Caring Society) and the Assembly of First Nations (AFN) filed a complaint pursuant to the Canadian Human Rights Act alleging that INAC’s provision of First Nations child and family services to over 163,000 First Nations children is discriminatory and that implementation of Jordan’s Principle is flawed, inequitable and thus discriminatory under the Canadian Human Rights Act (CHRT 1340/7008).

E. On January 26, 2016, the Canadian Human Rights Tribunal (the Tribunal) issued its decision (2016 CHRT 2) regarding the complaint filed in February 2007 by the Caring Society and the AFN, finding among other things that:

  • Canada’s design, management and control of the First Nations Child and Family Services Program (FNCFS), along with its corresponding funding formulas and the other related provincial/territorial agreements, have resulted in the denial of services to many First Nations children and families living on-reserve and that the FNCFS Program resulted in adverse impacts for them because it was based on flawed assumptions about First Nations communities that did not reflect the actual needs of those communities.
  • The FNCFS Program’s two main funding mechanisms incentivized removing First Nations’ children from their families.
  • INAC’s narrow interpretation and implementation of Jordan’s Principle results in service gaps, delays or denials, and overall adverse impacts on First Nations children and families on-reserve.
  • The racial discrimination arising from Canada’s provision of the First Nations Child and Family Services Program and failure to implement Jordan’s Principle is widening the historical disadvantage of residential schools.

F. Subsequent to the Tribunal’s decision, Canada unilaterally announced the budget allotments for First Nations child and family services without meaningful consultation with First Nations and unilaterally made an announcement about Jordan’s Principle without meaningful consultation with First Nations. Budget 2016 is a five year budgetary plan where $71 million is provided for child and family services for fiscal 2016/2017 and 54% of the planned funding is allocated for the year of the next federal election or the year after. This incremental budget approach fails to adequately consider children’s development and the severity of the harms posed to children by unnecessary removals from their families.

G. Such actions and impacts are inconsistent with the United Nations Convention on the Rights of the Child and articles of the United Nations Declaration on the Rights of Indigenous Peoples, which states:

  • Article 2: Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.
  • Article 22 (2): States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.
  • INAC’s narrow interpretation and implementation of Jordan’s Principle results in service gaps, delays or denials, and overall adverse impacts on First Nations children and families on-reserve.
  • The racial discrimination arising from Canada’s provision of the First Nations Child and Family Services Program and failure to implement Jordan’s Principle is widening the historical disadvantage of residential schools
  • In its decision, the Tribunal made several orders, including:
  • Cease its discriminatory practices regarding the FNCFS Program and reform the program.
  • Cease applying a narrow definition of Jordan’s Principle.
  • Take measures to immediately implement the full meaning and scope of Jordan’s Principle.
  • The Tribunal also retained jurisdiction over the complaint to allow for gathering of further information regarding the immediate and long-term remedies sought by the Caring Society and the AFN, and to seek further information regarding the compensation sought for First Nations children impacted by child welfare practices on-reserve between 2006 and January 26, 2016.

J. On April 26, 2016, the Tribunal issued a second decision (2016 CHRT 10) expressing concern with Canada’s compliance with 2016 CHRT 2 and compelling Canada to confirm implementation of Jordan’s Principle by May 10, 2016 and file detailed reports regarding its compliance with the non-discrimination order regarding First Nations Child and Family Services funding.

K. The Tribunal is expected to issue a third order on remedies in the coming weeks.

L. Prime Minister Justin Trudeau committed to implement all 94 Calls to Action of the Truth and Reconciliation Commission. A number of Calls to Action urge all levels of government to reduce the number of Aboriginal children in care and to provide adequate resources to support communities and child-welfare organizations in keeping families together.

M. The Tribunal’s order coupled with the Government of Canada’s commitment to reconciliation requires that the federal government take immediate action.

THEREFORE BE IT RESOLVED that the Chiefs-in-Assembly:

1. Respectfully call upon the Government of Canada to:

  • Honour its commitment to fully implement the Truth and Reconciliation Commission’s recommendations regarding children and families.
  • Take immediate and concrete actions to implement and honor the Canadian Human Rights Tribunal findings in First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (2016 CHRT 2) and all subsequent orders, and implement Jordan’s Principle across all First Nations and all federal government services.
  • Allocate sufficient resources immediately to remedy the discrimination against children and their families, taking into full account the best interests of First Nations children, their vulnerability, development, and the significant harms posed by unnecessary placements in child welfare care resulting from insufficient and discriminatory prevention services.
  • Immediately and fully implement the measures outlined in the document entitled “First steps in fixing the inequities in First Nations child and family services: Immediate action reforms, Directive 20-1” and “First steps in fixing the inequities in First Nations child and family services: Immediate reforms, Enhanced Prevention Focused Approach” and “First steps in fixing the inequities in First Nations child and family services: Immediate reforms, 1965 Indian Welfare Agreement” to provide some immediate relief to the children’s suffering while the longer-term issues are resolved.
  • Cease unilateral action without consultation with First Nations and cease engaging in bi-lateral discussions with provinces and/or territories regarding First Nations children without the participation of First Nations, and fully commit to full consultation with First Nations and First Nations child and family service agencies and the parties to First Nations Child and Family Caring Society of Canada
  • Attorney General of Canada (CHRT 1340/7008) to fully remedy the discrimination.

2. Support the revitalization of the AFN National Advisory Committee on child and family services with equal representation of First Nations across the country.

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Angie Turner62-2016 Full and Proper Implementation of the historic Canadian Human Rights Tribunal decisions in the provision of child welfare services and Jordan’s Principle
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