BRIEFING NOTE TO THE NATIONAL CHIEF & AFN EXECUTIVE COMMITTEE
DATE: January 25, 2016
REQUESTED BY: Dale LeClair
SUBJECT: Child Welfare Decision
The following provides our summary review of the Canadian Human Rights Tribunal (“CHRT”) Panel’s decision in the matter of First Nations Child and Family Caring Society of Canada et al, v Attorney General of Canada (Representing Minister of Indian Affairs and Northern Development Canada), 2016 CHRT 2 (“the Decision”).
In 2007, the AFN and First Nations Child and Family Caring (the “Caring Society”) filed a human rights complaint against the government of Canada. The complaint alleged that First Nations children living on reserve are being discriminated against and treated differently than other children based on their race in the provision of child welfare services.
The parties in this case are: the two Co-Complainants, the First Nations Child and Family Caring Society of Canada (“FNCFCS”) and the Assembly of First Nations (“AFN”); the Respondent, the Attorney General of Canada, representing the Minister of Indian Affairs and Northern Development (formerly known as Aboriginal Affairs and Northern Development and will be referred to as “AANDC”) and; the Interested Parties, Chiefs of Ontario (“COO”) and Amnesty International (“AI”).
The CHRT Panel that heard evidence and submissions of the parties was comprised of three members: Sophie Marchildon (Panel Chairperson), Edward Lustig, and Rèjean Bèlanger.
The Panel heard the case over seventy-two days between February 2013 and October 2014. The parties submitted hundreds of thousands of documents as evidence and there were twenty-five witnesses. Three of the witnesses were called by the AFN: Dr. John Milloy, Dr. Amy Bombay and Elder Robert Joseph. The Caring Society called Dr. Cindy Blackstock as their main witness who produced a significant amount of evidence for the complaint.
During the course of the hearings, the Respondents disclosed that they failed to produce 100,000 after the FNCFCS completed an Access to Information request. The hearings were paused to allow AANDC to collect and disclose the documents and allow time for the Clerk of the Privy Council to review any documents that were under Cabinet privilege. Due to the delay, and to prevent further delay, the Panel ordered that the additional documents could be submitted for the truth of their contents without being admitted through a witness. The Panel allowed written submissions regarding documents that were not admitted orally through a witness. AANDC took advantage of this and their objections informed the Panel’s decision.
The Co-Complainants carried the burden of proof of establishing that the provision of child and family services on-reserve and in the Yukon by AANDC is discriminatory. The issue was AANDC’s alleged inequitable provision and insufficient funding of the First Nations Child and Family Services Program (”FNCFS Program”) and the related provincial and territorial agreements that provide for child and family services to First Nations living on-reserve and in the Yukon Territory.
The Complainants had the burden of establishing prima facie discrimination under s. 5 of the Canadian Human Rights Act that involved proving that (i) First Nations have characteristics protected from discrimination, (ii) they are denied services, or adversely impacted by the provision of services by AANDC, and (iii) these protected characteristics are a factor in the adverse impact or denial of these services.
The prima facie discrimination analysis is not concerned with proposed outcomes. It is concerned with adverse impacts and whether a prohibited ground is a factor in any adverse impacts.
The Panel substantiated the complaint in a decisive ‘win’ for the FNCFCS and AFN. The evidence and arguments advanced by AANDC were found to be unreasonable, unconvincing and not supported by the preponderance of evidence that showed discrimination in violation of the CHRA. In short, the Panel found the FNCFS Program to be “flawed” and fails to meet its stated objective of providing reasonably comparable child and family services to those provided off-reserve.
KEY FINDING OF DISCRIMINATION:
Under section 5 of the CHRA, the Complainants have the burden of demonstrating that:
1. First Nations have a characteristic(s) protected from discrimination;
2. That they are denied services, or adversely impacted by the provision of services by AANDC, and;
3. That the protected characteristic(s) are a factor in the adverse impact or denial.
The Panel found that the Complainants met their burden. There was no dispute on the first of the three factors. First Nations are protected from discrimination under CHRA on the basis of “race, national or ethnic origin”.
The Tribunal has found that AANDC’s design, management and control of the FNCFS Program, along with its funding formulas and the other related provincial/territorial agreements have resulted in denials of services and created various adverse impacts for many First Nations children and families living on reserves. The main adverse impacts found by the Panel are summarized in the decision at [para 458]:
• The design and application of the Directive 20-1 funding formula, which provides funding based on flawed assumptions about children in care and population thresholds that do not accurately reflect the service needs of many on-reserve communities. This results in inadequate fixed funding for operations (capital costs, multiple offices, cost of living adjustment, staff salaries and benefits, training, legal, remoteness and travel) and prevention costs (primary, secondary and tertiary services to maintain children safely in their family homes), hindering the ability of FNCFS Agencies to provide provincially or territorially mandated child welfare services, culturally appropriate services to First Nations children and families and, providing an incentive to bring children into care because eligible maintenance expenditures are reimbursable at cost.
• The current structure and implementation of the EPFA funding formula, which perpetuates the incentives to remove children from their homes and incorporates the flawed assumptions of Directive 20-1 in determining funding for operations and prevention, and perpetuating the adverse impacts of Directive 20-1 in many on-reserve communities.
• The failure to adjust Directive 20-1 funding levels, since 1995; along with funding levels under the EPFA, since its implementation, to account for inflation/cost of living;
• The application of the 1965 Agreement in Ontario that has not been updated to ensure on-reserve communities can comply fully with Ontario’s Child and Family Services Act.
• The failure to coordinate the FNCFS Program and other related provincial/territorial agreements with other federal departments and government programs and services for First Nations on reserve, resulting in service gaps, delays and denials for First Nations children and families.
• The narrow definition and inadequate implementation of Jordan’s Principle, resulting in service gaps, delays and denials for First Nations children.
The Tribunal found that FNCFS Program, corresponding funding formulas and other related provincial/territorial agreements only apply to First Nations people living on-reserve and in the Yukon. It was only because of First Nations peoples race and/or national or ethnic origin that they suffer the adverse impacts. Also that the adverse impacts perpetuated the historical disadvantage and trauma suffered by Aboriginal people, in particular as a result of the Residential Schools system. The AFN put forward much of the evidence on the history of the Residential Schools and the intergenerational trauma it has caused, exemplifying the additional need of First Nations people to receive culturally appropriate and adequate child and family services. Much of this has been reviewed and considered by the Tribunal at paras 394-427.
After reviewing all the evidence and arguments of AANDC challenging the Complainants’ allegations of discrimination, the Panel found their position unreasonable, unconvincing and not supported by the preponderance of evidence in this case.
Indeed, the Panel found that AANDC was aware of the adverse impacts resulting from the FNCFS Program for many years and did not address the discrimination. Instead they merely added “support pillars to a house that has a weak foundation in an attempt to straighten and support the house. At some point, the foundation needs to be fixed or, ultimately, the house will fall down. Similarly, a REFORM of the FNCFS Program is needed in order to build a solid foundation for the program to address the real needs of First Nations children and families living on reserve.”
In cases of child and family service the Tribunal stated at para 
AANDC’s reasonable comparability standard does not ensure substantive equality in the provision of child and family services for First Nations people living on reserve. In this regard, it is worth repeating the Supreme Court’s statement in Withler, at paragraph 59, that “finding a mirror group may be impossible, as the essence of an individual’s or group’s equality claim may be that, in light of their distinct needs and circumstances, no one is like them for the purposes of comparison”. This statement fits the context of this complaint quite appropriately. That is, human rights principles, both domestically and internationally, require AANDC to consider the distinct needs and circumstances of First Nations children and families living on-reserve – including their cultural, historical and geographical needs and circumstances – in order to ensure equality in the provision of child and family services to them.[emphasis added]
While the Tribunal stated that it is not necessary for the purposes of this case to further define the contours of Aboriginal rights in language and culture or a fiduciary duty, the Tribunal noted that AANDC’s actions indicate an undertaking on the part of the Crown to act in the best interests of First Nations children and families to ensure the provision of adequate and culturally appropriate child welfare services on reserve and in the Yukon. At para  the Tribunal stated:
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 general recognition of a possible fiduciary duty is important in that the relationship and dialog must take place between the First Nations and federal government. This would preclude any pan-aboriginal tables or the requirement of tri-partite discussions involving the provincial and territorial governments.
The Panel ruled that the Complaint prima facie establishes that First Nations children and families living on-reserve and in the Yukon are denied (s. 5(a), CHRA) equal child and family services and/or differentiated adversely (s. 5(b), CHRA) in the provision of child and family services.
The Panel ordered against AANDC pursuant to s. 53(2), CHRA to eliminate the discrimination. The Tribunal’s remedial discretion is being exercised on a principled basis, reasonably, and in consideration of particular circumstances, and on the evidence.
The Tribunal Ordered AANDC to cease its discriminatory practices and reform the FNCFS Program and 1965 Agreement to reflect the findings in this decision, and it orders AANDC to cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan’s Principle.
The Panel is seeking to ensure that additional orders are appropriate and fair both in short and long term. The Panel reserved the right to ask questions and has outstanding questions about how to remedy the discrimination. Thus, the Panel is requesting further clarification on the actual relief sought, including how immediate and long-term reforms can best be implemented on practical, meaningful and effective basis. Within three weeks the Panel will be contacting parties to determine a process for its outstanding questions on remedies, to be answered on an expeditious basis.
During our closing submissions, the AFN requested the following relief:
i. An Order that AANDC cease and desist its discriminatory funding formula practices and immediately providing equitable funding and services;
ii. AANDC provide funding to the AFN for a jointly commissioned study relating to child welfare in First Nation communities, specifically to determine the most effective means of providing care for First Nations children and families;
iii. An Order that closes the gap in child welfare services for First Nation children and families through individual annual performance measurements and evaluations of AANDC employees or individual salary increases and promotions shall be withheld;
iv. As the short-term remedy sought is equitable funding, an Order that AANDC fund and participate in a joint policy development initiative with the AFN, FNCFCS and other First Nation child and family welfare experts and report back to the Tribunal annually on establishing effective long-term child welfare services regime and funding for First Nation families;
v. An Order that AANDC, AFN, FNCFCS and the Commission form an expert panel to establish appropriate individual compensation (pain and suffering as well as wilful acts of discrimination), for children, parents and siblings impacted by the discriminatory First Nation child welfare practices between 2006 and the date of the Tribunal’s Order in this matter, which AFN and the FNCFCS participation will be funded by AANDC;
vi. An Order that any increase of funding for the FNCFS not result in any inequity or cause further harm in relation to other AANDC programs in capital, housing, education, etc;
vii. An Order that this Tribunal will retain jurisdiction for 2 years after the filing of this Decision, in the event that the parties are unable to reach agreement with respect to the implementation of any of the remedies awarded. Extensions of this jurisdiction may be required.
Further, the Panel has outstanding questions on individual compensation and will engage a process for determining its outstanding questions on remedies. And, it reserves a ruling on the Complainants’ requests for costs in relation to motion for disclosure which will be provided in due course. Finally, the Panel retains jurisdiction over how the determination of remedies is made and further retention will be re-evaluated when those determinations are made.
(Note: A full legal opinion on the decision will be forthcoming.)
1. The AFN seek assurances from the Minister of Indigenous Affairs that the department will not appeal the decision of the Tribunal.
2. The Tribunal’s consideration of compensation to children, siblings and parents of those apprehended is a strong statement in and of itself, and highlights the Tribunal’s complete rebuke of Canada’s conduct over the last decade. AFN seek a joint working group with INAC to develop a compensation package for children, siblings and parents in the amount of $40,000 per individual.
3. AFN seek an admission from the federal government that the program has harmed the culture and languages of First Nation peoples.
4. Any working group developed should include political leadership (Canada and First Nations) to ensure federal bureaucrats do not frustrate and elongate the remedy process.
5. AFN request immediate funding to enable the organization to bring forward remedies to address the discrimination over the short and long term.
6. AFN, Caring Society, Chiefs of Ontario and Canada establish a joint team of officials to develop a plan and process, and identify solutions regarding outstanding remedy prior to any reappearance before the Tribunal.
7. AFN request the Tribunal remain seized of the matter until all issues regarding the elimination of discriminatory practices are resolved.