Despite being ordered to immediately stop its discriminatory child welfare services, lawyers for First Nations child welfare agencies say the federal government is dragging its feet to implement changes to its underfunded system.
In what many described as a groundbreaking decision, the Canadian Human Rights Tribunal released a decision in January that found Canada’s First Nations child welfare funding model “perpetuates the incentives to remove children from their homes.” In another unusual step, the tribunal ordered that the government reports back to the tribunal about steps it has taken to rectify this and other shortfalls in the system.
Along with that decision, the tribunal made a reporting order that required the government to show what it has done to rectify the issue. In April, the tribunal said it was unclear at that point how the government would address the issues identified in the ruling.
“While the panel did request clarification on certain remedial items and understood the federal government may need some time to review the decision and develop a strategy to address it, that was three months ago and there is still uncertainty amongst the parties and the panel as to how the federal government’s response to the decision addresses the findings above,” wrote tribunal chairwoman Sophie Marchildon.
“The panel appreciates that some reforms to the [First Nations Child and Family Services] program will require a longer-term strategy; however, it is still unclear why or how some of the findings above cannot or have not been addressed within the three months since the decision. Instead of being immediate relief, some of these items may now become mid-term relief.”
Anne Levesque, one of the lawyers who represented First Nations Child and Family Caring Society of Canada, says the January decision affirmed that First Nations people living on-reserve deserve the same quality of child welfare services as non-indigenous Canadians living off-reserve.
“The standard of equality articulated by the tribunal is what I call transformative equality,” Levesque says.
“They compared the government’s approach to child welfare services as trying to paint the walls of a house with a broken foundation. They said you need to destroy the house and build a new foundation,” Levesque says.
But with the recognition that it takes time to build a new foundation, the tribunal also ordered the government of Canada to “cease discriminating immediately,” Levesque says, adding that, in the meantime, the government was ordered to inject money into the system to lessen the impact of the discrimination.
“And that’s what they’ve failed to do,” Levesque says. The March 2016 budget, for example, provided only $70 million in funding for First Nations child welfare and only $60 million went directly to services, even though in 2012, the shortfall was estimated to be nearly $110 million, she says.
The government, for its part, says it’s committed to the well-being of indigenous children and is working on fully implementing the tribunal’s decision.
“Canada has increased existing program funding to $634.8 million over five years to the FNCFS Program to support enhanced prevention services and increase capacity and resources for front-line service delivery on reserve. It is currently allocating this additional funding as immediate relief investments to service providers,” said Shawn Jackson, spokesman for Indigenous and Northern Affairs Canada in an e-mail to Law Times.
“Canada has also committed to a full-scale reform of the First Nations Child and Family Services Program and has started engaging First Nations and other partners to start regional and national conversations about options to overhaul First Nations child and family services, including how to respond to items identified in the ruling,” Jackson added.
Jackson also said the government is “incrementally” increasing funding to agencies.
“Funding is being provided to agencies incrementally to allow them time to hire, train and retain staff, based on the availability of qualified social workers and other staff, to expand their prevention programming,” he said.
“This approach in no way means that Canada presumes that agencies lack the capacity to implement immediate relief measures but recognizes that it takes time and support from multiple partners, including provincial or territorial governments and educational institutions, to grow professional capacity of any organization,” Jackson added.
Errol Mendes, professor of constitutional and international law at the University of Ottawa, says “incremental equality” is insufficient in this case.
“How do you address the fundamental rights of First Nations in this area if you’re saying that you’ll try and meet the conditions of the ruling by going in tranches?” Mendes says. “Therein lies the big legal issue.”
Adds Mendes: “If overnight we can, like we’ve done in the past in different parts of Canada, spend billions of dollars to create Olympic venues, etc., can we not do that with child care agencies?”
Mendes says whether the government can incrementally pump funds into the First Nations child welfare system is an issue that should be argued and decided in a higher court.
Levesque says a June case conference meeting between the parties, which was meant to discuss the implementation of the January ruling, was cancelled because of Canada’s inactions. The tribunal chose to cancel the meeting and instead issue another ruling for immediate action, she says.
“The panel finds there are far more unresolved issues to deal with [than] it had expected and is now questioning the benefit of having a meeting at this time. Therefore, the panel proposes to use its limited resources to address as many of the outstanding issues as it can now,” says a letter sent from the tribunal to the parties on June 14.
The federal government was also ordered to broaden its application of the Jordan Principle, a child-first principle that says whenever there’s a dispute between provincial or territorial governments and the federal government as to which one of them would pay for a child’s care, the government of first contact would bear the costs and later seek reimbursement.
Jackson said that, since the tribunal’s findings, the government has announced $382 million over three years in new funding to provide support to Jordan’s Principle and has taken “immediate steps” to implement it. But Levesque says she’s found government staff are still unfamiliar with the principle and “that means that literally every day, First Nations children are being denied services that you and I take for granted.”
The tribunal’s decision noted “that the federal government is in a fiduciary relationship with Aboriginal peoples and has undertaken to improve outcomes for First Nations children and families in the provision of child and family services.”
“On this basis, more has to be done to ensure that the provision of child and family services on First Nations reserves is meeting the best interest of those communities and, in the particular context of this case, the best interest of First Nations children. This also corresponds to Canada’s international commitments recognizing the special status of children and Indigenous peoples,” said the ruling.
It also said, “The purpose of having a First Nation community deliver child and family services is to ensure services are culturally appropriate and reflect the needs of the community.”
“This in turn may help legitimize the child and family services in the eyes of the community, increasing their effectiveness, and ultimately help rebuild individuals, families and communities that have been heavily affected by the Residential Schools system and other historical trauma,” said the decision.
Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, says “Canada’s compliance with the January order has been far from inspiring.
“Its implementation has been marked by vague unilateral actions that lack transparency and accountability. In fact the Canadian Human Rights Tribunal issued a compliance order against Canada in April noting the slow pace of change and another is expected shortly,” she says.
The Caring Society is a co-complainant in the case. Blackstock says “although Canada welcomed the decision, its actions reflect a government that thinks it is above the law and children are below the law.”