Canada still discriminating; Tribunal tells Canada to stop it, immediately, again

…nearly one year since the April 2016 ruling and over a year since the Decision,  Canada continues to restrict the full meaning and intent of Jordan’s principle.  The Panel finds that Canada is not in compliance with the previous Jordan’s Principle orders in this matter (2017 CHRT 4, para. 80)

We can hardly believe that this case continues to drag on, but until Canada complies with the decision of the Canadian Human Rights Tribunal and acts to eliminate racial discrimination against First Nations children, we will continue to follow it.  Today the Canadian Human Rights Tribunal released this decision about Canada’s compliance with Jordan’s Principle.   Again, the Tribunal has found Canada continues to discriminate against First Nations kids. 

Background

Over 10 years ago, the Canadian Human Rights Commission, the First Nations Child and Family Caring Society and the Assembly of First Nations, along with Chiefs of Ontario, Nishnawbe Aski Nation and Amnesty International as interested parties, took Canada to the Canadian Human Rights Tribunal to stop the Canadian government from racially discriminating against First Nations children in Canada.  In January 2016, the kids won, and the Tribunal found that Canada does discriminate against First Nations children on reserve in the provision of child welfare services and in its application of Jordan’s Principle.

The Tribunal ordered Canada to stop racially discriminating, and to immediately implement Jordan’s Principle.  You can read about that decision here.  It seemed at the time that the discriminatory system, which the Tribunal found leads to First Nations kids being taken into the care of child welfare agencies needlessly , would soon be changed.   Then the Tribunal made two further orders (in April and September 2016) about Jordan’s Principle and immediate relief (measures to alleviate discrimination while the program is being reformed).

Canada made some changes to how it applied Jordan’s Principle, and introduced its 2016-2021 budget, which provided for some immediate funding.   Canada then said that it had provided all the immediate relief necessary to comply with the decision.

Yet still, the parties maintained that Canada was not complying with the Tribunal’s orders. The parties said that there was not enough immediate relief, and importantly that the definition of Jordan’s Principle being advanced by Canada publicly was still restricted to only First Nations children living on reserve who had disabilities.

Tribunal Again Orders Canada to Comply with its Decisions

Today, the Tribunal released its decision on the Caring Society’s motion about Canada’s compliance with the Tribunal orders on Jordan’s Principle. The Tribunal found that since January 2016, Canada has not been fully complying with the order to end discrimination and to fully implement Jordan’s Principle.

In particular, the Tribunal found that Canada is continuing to discriminate by limiting Jordan’s Principle services to First Nations children with disabilities, or with acute short-term needs.  Although Canada had maintained on the motion it was not limited, and merely focused on such children, “[t]he Panel does not accept this explanation” (para. 54 of today’s decision). The Panel said, at paragraph 84 of the decision:

The Tribunal also found that many of the features of Canada’s implementation of Jordan’s Principle in the past still exist today, despite three previous orders from the Tribunal directing Canada to comply.  The Tribunal made specific orders for Canada to follow on a go-forward basis, summarized below.

Tribunal Clarifies What Jordan’s Principle Means

The Tribunal ordered Canada to immediately apply Jordan’s Principle without limitation.  The Tribunal clarified in its order what Jordan’s Principle means:

• Jordan’s Principle is a child-first principle that Jordan’s Principle that applies to all First Nations children on and off reserve
• Jordan’s Principle has no limit, and should not be restricted to First Nations children with disabilities
• Jordan’s Principle is to ensure that there are no gaps in government services to FN children. It is not limited to health services. Jordan’s Principle also applies to mental health, special education, dental, physical therapy, speech therapy, medical equipment and physiotherapy
• The government department of first contact shall provide the service without delay for case conferencing, policy review or service navigation
• If a service requested is beyond what might be provided to a non FN child, then the government shall still evaluate children’s needs to ensure substantive equality in the provision of services to the child
• there is no need for there to be a dispute among governments or within government departments for Jordan’s Principle to apply

Tribunal Directs How Canada Must Process Jordan’s Principle Requests

In terms of the Jordan’s Principle process overall, the Panel finds there is a clear need for improvement to ensure the principle is meeting the needs of First Nations children and addressing the discrimination found in the Decision. (Para. 103 of today’s decision)

• Canada must review previous Jordan’s Principle funding requests back to April 1, 2009 to determine eligibility under the Tribunal’s stated principles.
• The first government contacted will evaluated the proposal received under Jordan’s Principle or if it could be considered under Jordan’s Principle
• There shall be an initial evaluation and determination within 12-48 hours
• There shall be no more service delays for case conferences, policy review or service navigation
• The government of first contact will pay for the approved services without delay
• If a request is denied, the applicant will be informed of an appeal mechanism
• Canada will be required to track Jordan’s Principle applications, both granted and denied
• Canada must go back to its employees, the public, First Nations and other organizations to correct its past erroneous communications about what Jordan’s Principle means, and to educate people about the full meaning of Jordan’s Principle.

What happens next?

OKT LLP has been proud to represent Chiefs of Ontario in this case since January 2016.  OKT and our client, along with the other parties, are anxiously awaiting a decision on the other motions before the Tribunal which concern the adequacy of Canada’s other actions to provide immediate relief to alleviate discrimination against First Nations children pending program reform.  In particular, Chiefs of Ontario has asked the Tribunal to order Canada to provide Band Representative services, to provide children’s mental health services, and to order Canada to undertake an Ontario-specific study to recommend how best to eliminate discrimination under the 1965 Indian Welfare Agreement between Canada and Ontario.  The Caring Society, AFN, and NAN have also asked for the Tribunal to order increased measures to stop discrimination.

Until then, we, along with the rest of the complainants and interested parties, and most importantly along with 163,000 First Nations kids are #Waiting4UCanada.

By Maggie Wente