First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)

First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)
Collection
Canadian Human Rights Tribunal
Date
2018-02-01
Neutral citation
2018 CHRT 4
File number(s)
T1340/7008
Decision-maker(s)
Marchildon, Sophie; Lustig, Edward P.
Decision type
Ruling
Grounds
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2018 CHRT
4
Date:
February 1, 2018
File No.:
T1340/7008
Between:
First Nations Child and Family Caring Society of Canada
- and -
Assembly of First Nations
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Attorney General of Canada
(Representing the Minister of Indigenous and Northern Affairs Canada
Respondent
- and -
Chiefs of Ontario
- and -
Amnesty International
- and -
Nishnawbe Aski Nation
Interested parties
Ruling
Members: Sophie Marchildon and Edward P. Lustig
Outline
I. Motions for immediate relief related to the First Nations Child and Family Services Program and 1965 Agreement 1
II. Summary of Canada’s further actions in relation to the First Nations Child and Family Services Program and 1965 Agreement 1
A. Legal arguments 4
i. Burden of proof and compliance 4
ii. Separation of powers 5
Tribunal’s jurisdiction/authority to make orders on public spending of funds and separation of powers 5
International Law 16
UNDRIP and child welfare 16
B. Context and further orders requested 17
i. The FNCFS Program and Prevention 18
Request for Actual costs – legal fees, building repairs, and intake and investigations 23
Analysis, findings, reasons and orders on actual costs for prevention, intake and investigation, legal fees and building repairs 24
Intake and investigation 42
Legal costs 43
Building repairs 45
The Tribunal’s authority to make further orders 45
Orders 49
C. Further orders requested 51
i. Child service purchase amount 51
Small agencies 53
Data collection, analysis and reporting 55
Analysis 56
Reallocations 58
Analysis 59
ii. 1965 Agreement 61
Mental health services 61
Band representatives 66
Analysis 69
Remoteness Quotient 72
The NAN’s Choose life “order’’ request and working table 74
Ontario special study 76
NAN agency-specific relief 78
iii. General 79
Unfairness of the process argument: 79
NAN’s directed verdict and orders request: 81
Dissemination of information 81
Consultation 82
Future reporting 84
III. Order 86
Conclusion 94
Panel Chair’s final remarks 94
Schedule A 1
Schedule B 1
Schedule C 5
I. Motions for immediate relief related to the First Nations Child and Family Services Program and 1965 Agreement [1] The Complainants and Interested Parties (with the exception of Amnesty International) have each brought motions challenging, among other things, Canada’s implementation of this Panel’s decision and orders in First Nations Child and Family Caring Society of Canada (FNCFCS) et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada (INAC)), 2016 CHRT 2 (“the Decision”). Canada and the Canadian Human Rights Commission (Commission) filed submissions in response to the motions. The motions were heard from March 22 to March 24, 2017 in Ottawa.
[2] This ruling deals specifically with allegations of non-compliance and related requests for further orders with respect to immediate relief.
II. Summary of Canada’s further actions in relation to the First Nations Child and Family Services Program and 1965 Agreement [3] Canada submits, in sum, that since the Decision it has increased funding for the First Nations Child and Family Services (FNCFS) program over the next five years through new investments of $634.8 million in Budget 2016. In 2016/2017, among other items, it will provide $71 million for prevention and front-line support to agencies, with increases to follow in each of the next four fiscal years. According to Canada, the purpose of the increased funding is to address the immediate needs of FNCFS Agencies that had been underfunded under the impugned funding models.
[4] On the Canadian Human Rights Tribunal’s (Tribunal) order to cease the practice of having agencies cover deficits in maintenance funding with funds from their operations and/or prevention funding streams, Canada states that it has directed that cost overruns from maintenance are not to be recovered from operations and/or prevention funding streams.
[5] Canada indicates that it has allocated a further $20 million to FNCFS Agencies to respond to funding pressures identified in 2015/2016 and 2016/2017 in areas such as maintenance pressures, deficits and payments resulting from the impacts of provincial reform. According to Canada, this additional funding to address maintenance pressures provides needed support for the expenditures of children in care and removes the need for agencies to divert spending from prevention or operations funding streams.
[6] With respect to the assumption of 6% of children in care as a basis for funding, Canada indicates that the assumption is now used as a minimum only. Where the number of children in care is above 6%, Canada is basing funding on the actual number of children receiving care.
[7] With respect to the other assumption that 20% of families require service, Canada only uses the assumption as a minimum standard. While data is not available on the actual number of families in need of services, where there is a greater number than 6% of children in care, Canada is also adjusting the 20% upward. According to Canada, to the extent that this can be achieved in the interim without data on the actual number of families that use, or would use, prevention services if they were available, Canada has complied.
[8] For small agencies and the Tribunal’s order that Canada cease the practice of reducing funding to agencies that serve less than 251 eligible children, Canada confirms it has set the minimum threshold for core operational funding for agencies at the level previously provided to agencies with a minimum child population served of 300 children (0 to 18 years). This is an interim approach while further engagement is undertaken with agencies and other partners.
[9] With regard to the 1965 Agreement, Canada provided immediate relief funding of $5.8 million for 2016/2017. The $5.8 million was distributed according to a formula agreed on by INAC, the province of Ontario and the Chiefs of Ontario (COO).
[10] Additionally, Canada confirmed that approximately $64 million was allocated to First Nations mental health programming in Ontario for the 2016/17 fiscal year, along with a $69 million investment over a three-year period to address the mental health needs of First Nations and Inuit communities across the country.
[11] Canada submits that it is working with the province of Ontario and First Nations leadership as well as other partners to look specifically at the government's support for child and family services through the application of the 1965 Agreement. Discussions began with a focus on immediate relief investments for 2016/17 and draft Terms of Reference for the working group are currently being finalized. A work plan is being developed with the following items being discussed: consideration of funding formula options for 2017/2018; review of the 1965 Agreement; Band representatives; mental health; the Ontario study and remoteness; and development of longer-term policy and funding approaches. According to Canada, the work of this group will help to ensure a solution to these issues that has the input of Ontario's First Nations communities and the province of Ontario.
[12] Overall, Canada believes it has responded to the Tribunal's rulings and has implemented substantive changes to remediate the discriminatory impacts of the impugned funding regime while medium and long-term program reform is underway. There is no basis for a finding of non-compliance and the motions should be dismissed.
[13] The Panel believes that Canada has complied with many of its orders and/or findings and is encouraged by this progress. Canada has implemented a number of changes and has taken a number of initiatives. In sum, Canada provided additional funds for prevention services and for agencies’ funding pressures; it provided additional funding to Ontario including amounts to address some mental health needs, the 6% and 20% assumptions of children in care are now used as minimal amounts only; Canada sent a letter to agencies to enquire about their specific needs and offered funding associated to the preparation of the agencies’ reports; Canada offered funding for the agencies to develop culturally appropriate standards; Canada confirmed agencies are no longer expected to recover deficits in maintenance from their operation and prevention funds; Canada ceased the practice of reducing funding for small agencies that serve less than 251 children; it made adjustments in funding to address salaries on an average basis; it made small increases to legal costs funding; it increased the child purchase service amount; it provided some funding for intake and investigation and it made small adjustments to staff travel funding. Canada established a working group to improve Non-Insured Health Benefits (NIHB) supports, it started addressing remoteness by arranging some transportation for children to access various therapy and other services not covered by NIHB. It re-enacted the National Advisory Committee (NAC) in partnership with the Assembly of First Nations (AFN) and the Caring Society including the funding to participate at the NAC and, provided the funding of the Aboriginal component of the Canadian Incidence Study of Reported Child Abuse and Neglect, among other things).
[14] Between the motions’ hearing and this ruling, Canada entered into agreements with the Nishnawbe Aski Nation (NAN) and the COO that will be discussed in separate sections below. It is important to note at the onset of this ruling, this positive progress improving the lives of Indigenous children. The Panel wishes to acknowledge the COO, the NAN and Canada for these agreements.
[15] Insofar as Canada’s actions, it is incorrect to assert it did nothing. It is also incorrect for Canada to say it did everything that it could do and everything that what was asked of it in the immediate term, which has now become mid-term. The Panel finds it important to raise this perspective, which is informed by the evidence before it both at the hearing on the merits and at the motions’ hearing.
[16] It is useful to provide an overview of the context of this case and to review the legal principles applicable before analyzing the different requests and submissions.
A. Legal arguments i.Burden of proof and compliance [17] While the parties debated who had the burden of proof in these motions, as analyzed in 2017 CHRT 14, absent a gap in the evidentiary record, the burden of proof is not a material issue in determining the present motions. That is, where the evidentiary record allows the Panel to draw conclusions of fact which are supported by the evidence, the question of who had the onus of proving a given fact is immaterial.
[18] Similarly, and despite some of the Complainants and Interested Parties’ requests for orders or declarations of non-compliance by Canada, the Panel reiterates its purpose in retaining jurisdiction in this matter and crafting orders for immediate relief is: to ensure that as many of the adverse impacts and denials of services identified in the Decision are temporarily addressed while INAC’s First Nations child welfare programing is being reformed. Orders or declarations of non-compliance do not fulfill this purpose. That is not to say that Canada’s approach to compliance or its lack thereof, is not relevant to the determination of the present motions. The Tribunal’s remedial discretion must be exercised reasonably, in consideration of the particular context in which these motions are brought and the evidence presented through these motions. That evidence includes Canada’s approach to compliance with respect to the Panel’s orders to date and this evidence can be used by the Panel to make findings and to determine the motions of the parties (see 2017 CHRT 14 at paras.23-34 ).
[19] In the Decision, the Panel wrote that: The Panel is generally supportive of the requests for immediate relief and the methodologies for reforming the provision of child and family services to First Nations living on reserve, but also recognizes the need for balance espoused by Aboriginal Affairs and Northern Development Canada (AANDC). (…) While a discriminatory practice has occurred and is ongoing, the Panel is left with outstanding questions about how best to remedy that discrimination. The Panel requires further clarification from the parties on the actual relief sought, including how the requested immediate and long-term reforms can best be implemented on a practical, meaningful and effective basis (see the Decision at paras. 483 and 484).
[20] Some of the Panel’s questions were still outstanding at the time of the motions’ hearing in March 2017 and, ruling on immediate relief requests still pending. Therefore, the Panel considers this ruling to be essentially the continuation of immediate relief while dealing with some compliance to previous orders made by this Panel. Aside from compliance reports, the Panel hopes to close the immediate relief orders phase with this ruling.
ii.Separation of powers Tribunal’s jurisdiction/authority to make orders on public spending of funds and separation of powers [21] The Panel wants to address a number of legal questions that arose as part of these ongoing proceedings and that are contentious amongst the parties. This section will touch briefly on the separation of powers between different branches of government and the Tribunal’s framework and, the purpose of the Canadian Human Rights Act (CHRA) and its relation to the Tribunal’s remedial powers under the Act.
[22] The Commission and the Attorney General of Canada (AGC) rely on Ball v. Ontario (Community and Social Services), 2010 HRTO 360 to support the position that the Tribunal should leave the precise method of remedying the discrimination to the government so as not to upset the separation of powers between the different branches of government. The Human Rights Tribunal of Ontario (HRTO) in its analysis relies on (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62) which analyzed remedies under section 24 of the Charter.
[23] The Panel finds that the case at hand and its factual matrix is far more complex and far more reaching than the Ball case and therefore it can distinguish the Ball case from this case.
[24] The McKinnon v. Ontario (Ministry of Correctional Services), [1998], OHRBID, No 10, 32 CHHR D/1 and [2002] OHRBID, No 22, decisions from the HRTO followed a different approach informed by the specific facts in the case and was affirmed on appeal (see Ontario v. McKinnon, 2004 CanLII, 47147, (ONCA). The Panel believes the McKinnon case is more similar to this case than the Ball case.
[25] The Panel also continues to rely on its Decision that addressed at length Canada’s legal arguments and in subsequent rulings that were accepted by Canada.
[26] The Tribunal’s jurisdiction is statutory in nature and is established by the CHRA. Parliament’s intent is clearly expressed in the CHRA’s purpose under section 2 of the Act.
[27] Section 2 of the Act provides that:
The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. (emphasis ours). This legislation applies to the federal government.
[28] The Tribunal’s mandate derives from the CHRA which is an Act adopted by Parliament and, characterized by the Supreme Court of Canada on numerous occasions, to be quasi-constitutional legislation (see for example Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84 at pp. 89-90 [Robichaud]; Canada (House of Commons) v. Vaid, 2005 SCC 30 at para. 81; and Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 62 [Mowat]).
[29] The principle that the CHRA is paramount was first enunciated in the Insurance Corporation of British Columbia v. Heerspink [1982] 2 S.C.R. 145, 158, and further articulated by the Supreme Court of Canada in Winnipeg School Division No. 1 v. Craton [1985] 2 S.C.R. 150, at p. 156 where the court stated:
Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such a nature that it may not be altered, amended or appealed, nor may exceptions be created to its provisions save by clear legislative pronouncement. (at p. 577)
[30] It is through the lens of the CHRA and Parliament’s intent that remedies must be considered, rather than through the lens of the Treasury board authorities and/or the Financial Administration Act, R.S.C., 1985, c. F-11. The separation of powers argument is usually brought up in the context of remedies ordered under section 24 of the Charter (see for example Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62), which distracts from the proper interpretation of the CHRA. Moreover, the AGC did not demonstrate that the separation of powers is part of the CHRA interpretation analysis. None of the case law put forward by Canada and considered by the Panel changes the Panel’s views on remedies under the CHRA.
[31] The Panel provided an overview of the Tribunal’s broad and flexible remedial authorities in 2016 CHRT 10 (paras. 10-19) which was not judicially reviewed.
[32] In making its orders the Tribunal does not seek to usurp the powers of other branches of government. It is operating under its Statute that permits it to address past discriminatory practices, and prevent future ones from occurring. This is provided for in the Act under section 53 (2) (a): that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including (...). (emphasis added).
[33] Consequently, any order made by the Tribunal, especially in systemic cases, has some level of impact on policy or spending of funds. To deny this power to the Tribunal by way of decisions from the executive would actually prevent the Tribunal from doing its duty under the Act which is quasi-constitutional in nature. Throughout its existence, the Tribunal has made orders on numerous occasions that affect spending of funds. Sometimes orders amounting to millions of dollars are made (see for example Public Service Alliance of Canada v. Canada Post Corporation, 2005 CHRT 39 at para.1023 affirmed by the Supreme Court of Canada, see Public Service Alliance of Canada v. Canada Post Corp., [2011] 3 SCR 572, 2011 SCC 57). In addition, specific remedies impacting policy are often made to remedy discrimination. This was addressed by the Tribunal and the Supreme Court of Canada.
[34] Section 53(2)(a) of the CHRA gives this Tribunal the jurisdiction to make a cease and desist order. In addition, if the Tribunal considers it appropriate to prevent the same or a similar practice from occurring in the future, it may order certain measures including the adoption of a special program, plan or arrangement referred to in subsection 16(1) of the CHRA (see National Capital Alliance on Race Relations (NCARR) v. Canada (Department of Health & Welfare) T.D.3/97, pp. 30-31). The scope of this jurisdiction was considered by the Supreme Court of Canada in CN v. Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114, [Action Travail des Femmes]). In adopting the dissenting opinion of MacGuigan, J. in the Federal Court of Appeal, the Court stated that:
...s. 41(2)(a), [now 53(2)(a)], was designed to allow human rights tribunals to prevent future discrimination against identifiable protected groups, but he held that "prevention" is a broad term and that it is often necessary to refer to historical patterns of discrimination, in order to design appropriate strategies for the future..... (at page 1141)
[35] The Supreme Court also said in reference to the Order made by the Tribunal in that case:
...When confronted with such a case of "systemic discrimination", [as was the case with Canadian National Railway], it may be that the type of order issued by the Tribunal is the only means by which the purpose of the Canadian Human Rights Act can be met.
In any program of employment equity, there simply cannot be a radical dissociation of "remedy" and "prevention". Indeed, there is no prevention without some form of remedy... (at pages 1141 to 1142)
[36] The Court pointed out that:
Unlike the remedies in s. 41(2)(b)-(d), [now Section 53], the remedy under s. 41(2)(a), is directed towards a group and is therefore not merely compensatory but is itself prospective. The benefit is always designed to improve the situation for the group in the future, so that a successful employment equity program will render itself otiose. (at page 1142)
[37] As in the NCARR case referred to above, the Panel is not dealing with employment equity issues however, there is nothing in the CHRA that restricts remedies under section 53 (2) (a) to employment equity issues. Similar to the analysis in NCARR, the Panel believes this is applicable to the case at hand.
[38] In fact as an example, the words in section 16 (1) of the CHRA are not earmarked for employment situations only:
Special programs
16 (1) It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group. (emphasis added).
[39] Moreover, the Federal Court of Canada in regards to remedies stated in Grover v. Canada (National Research Council) (1994), 24 CHRR D/390 (FC) at para. 40 [Grover], “[s]uch a task demands innovation and flexibility on the part of the Tribunal in fashioning effective remedies and the Act is structured so as to encourage this flexibility.” (emphasis added).
[40] The Tribunal made extensive findings in 2016 CHRT 2 and provided very detailed reasons as to how it arrived at its findings. The Panel specifically mentioned that reform must address the findings in the Decision. This case is about underfunding, policy, authorities and, the National Program that were found to be discriminatory. The AGC is advancing that no remedies can be awarded by the Tribunal in terms of policy or public spending. The appropriate way to challenge this was by way of judicial review which was not done here. It appears that the AGC’s previous arguments that the Tribunal has no jurisdiction in this complaint is now being disguised as the separation of powers argument in which it claims the Tribunal can make no orders in relation to public spending and in terms of policy.
[41] Canada must accept that liability was found and that remedies flow from this finding. The Decision was not a recommendation; it is legally binding.
[42] To the same extent that funds must be provided to comply with Court decisions, funds must also flow from the Tribunal’s Decision. Treasury Board decisions cannot be above the CHRA when it comes to expenses for liability.
[43] The Panel to date has not made orders prescribing specific amounts of funding. It has chosen to make orders flowing from its findings which were accepted by Canada.
[44] The Panel is concerned that if Canada continues to take the position that the Tribunal does not have the power to make remedies on policy and public funds, especially in a case where underfunding and policy are the center of the complaint that was substantiated and not judicially reviewed, Canada would then be preventing the Tribunal from fulfilling its quasi-constitutional mandate to protect fundamental human rights. To put it in the words of the Supreme Court, human rights legislation is “the final refuge of the disadvantaged and the disenfranchised” (see Zurich Insurance v. O.H.R.C [1992] 2 S.C.R. 321).
[45] If all that Canada has to do is to argue the separation of powers argument to stop the Tribunal from making any orders on policy or public funds, in our view this infringes the proper administration of justice and reduces the Tribunal’s role to making findings and general orders that can only be implemented at Canada’s discretion, akin to a Commission of inquiry. This is not the intent of Parliament expressed in section 2 of the CHRA. Nor is it consistent with the wording of s. 53 of the CHRA. Given that human rights legislation aims to eliminate and prevent discrimination (see for example Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84 at para. 13 [Robichaud], CN v. Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114 at p. 1134 [Action Travail des Femmes]). The Panel believes that agreeing with Canada’s position would strip the Tribunal and the CHRA of any significance.
[46] It is also important to reiterate that this case is about Indigenous children, families and communities who have been recognized by this Panel and the Courts, including the Supreme Court, as a historically disadvantaged group. The best interest of children is not advanced by legalistic positions such as Canada’s. It is also sending a message that the Tribunal has no power and human rights can be violated and are remedied only if Canada finds money in their budget. This is in our view, a misapplication of the CHRA and of the Executive powers especially given that the Bona Fide Occupational Requirement (BFOR) cost defense provided for in the CHRA was not advanced in this case.
[47] More importantly, this case is vital because it deals with mass removal of children. There is urgency to act and prioritize the elimination of the removal of children from their families and communities.
[48] While the Tribunal wants to craft responsive remedies to address the discrimination, it is not interested in drafting policies, choosing between policies, supervising policy-drafting or unnecessarily embarking in the specifics of the reform. It is interested in ensuring previous discriminatory policies are reformed and no longer used, especially two years after the Decision, and that concrete measures to remedy discrimination are taken.
[49] The Panel’s orders to date flow from the Decision and its findings, and are based on the best information before it to address the main adverse impacts of the discrimination. Moreover, it found for the complainants who are Indigenous peoples representing numerous Indigenous voices and who are asking for the remedies addressed in this ruling.
[50] In retaining jurisdiction, the Panel is monitoring if Canada is remedying discrimination in a responsive and efficient way without repeating the patterns of the past.
[51] Indeed, the Supreme Court in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30 (CanLII) has also directed human rights tribunals to ensure that their remedies are effective, creative when necessary, and respond to the fundamental nature of the rights in question:
[52] Despite occasional disagreements over the appropriate means of redress, the case law of this Court, (…), stresses the need for flexibility and imagination in the crafting of remedies for infringements of fundamental human rights (…) Thus, in the context of seeking appropriate recourse before an administrative body or a court of competent jurisdiction, the enforcement of this law can lead to the imposition of affirmative or negative obligations designed to correct or bring an end to situations that are incompatible with the Quebec Charter. (see at para. 26 ),(emphasis ours).
[53] If the past discriminatory practices are not addressed in a meaningful fashion, the Panel may deem it necessary to make further orders. It would be unfair for the Complainants, the Commission and the interested parties who were successful in this complaint, after many years and different levels of Courts, to have to file another complaint for the implementation of the Tribunal’s orders and reform of the First Nations’ Child welfare system.
[54] It is important to distinguish policy choices made by Canada that satisfactorily address the discrimination, in which the Panel refrains from intervening, from policy choices made by Canada that do not prevent the practice from reoccurring. To explain this, if the Panel finds that Canada is repeating history and choosing similar or identical ways to provide child welfare services that amounted to discrimination, the Panel has justification to intervene.
[55] Finally on this point, while Canada advances that it needs to consult with all First Nations’ communities, which in our view remains paramount for long term reform, the Panel does not think consultation prevents Canada from implementing immediate relief. In so far as Canada’s position is that it cannot unilaterally make decisions, the Panel finds Canada has done so: namely to maintain the status quo in some areas even when the needs of specific communities or groups have been clearly identified and expressed in numerous reports filed in evidence in this case and, referred to, in the Decision’s findings.
[56] The Panel finds troubling that important issues addressed at length in the unchallenged Decision are advanced again by Canada. Here are some areas of concern for the Panel:
[57] The focus remains on the provinces’ role rather than on Canada’s own role despite our findings concerning INAC’s control and our findings on section 91(24) of the Constitution. There is over-emphasis on tripartite meetings and discussions before action, and incremental approach to funding despite our findings that the Enhanced Prevention Focused Approach (EPFA) roll-out had flaws. These arguments were made at the hearing and were addressed in the Decision and subsequent rulings.
[58] While there is no doubt for this Panel that Canada has to work with provinces, territories and all Indigenous governments, and that all have a part to play, this argument alone is not a valid one to redirect responsibility to the provinces. Canada has argued at the hearing on the merits that health and social services is the provinces’ responsibility under the Constitution and that section 88 of the Indian Act enables provincial legislation to apply on reserves. It also supported its assertions by pointing out that it is the provinces who delegate authorities to First Nations agencies. The Panel reminded Canada of section 91(24) and Canada’s constitutional obligations towards “Indians”. (see the Decision at paras.78-110). Moreover, the Panel explained in detail in the Decision how INAC and its National program exert control over the services offered and being held out to the children. (see also the Decision at paras 74, 85 and 113).
[59] Canada simply cannot hide behind the provinces’ responsibilities to shield itself from its own responsibilities.
[60] This legal argument was advanced for years before the Tribunal. It was answered and put to rest in February 2016 when the Decision was not challenged. INAC cannot act as judge and party in relation to the Decision and grant itself a stay and a post facto successful judicial review. This is not how our justice system is designed.
[61] Canada has also accepted all 94 of the Truth and Reconciliation Commission’s (TRC) recommendations. It undertook to implement them and to rebuild the Nation-to-Nation relationship with Indigenous peoples. To our knowledge, while the provinces and Indigenous peoples need to be full partners, Canada has accepted its part and responsibility. The Panel can turn its mind to any barriers Canada has to overcome in order to address the discrimination and recognizes that there may be some, but the Panel would need more than just assertions unsupported by evidence from Canada in order to inform its findings and orders.
[62] Another argument advanced by Canada to support leaving some of the immediate relief for later is that not all groups are represented before the Tribunal, and that it is best left for discussions with all partners in the long term. On that point, the Panel would like to stress how important it is to address the issue of mass removal of children today. While Indigenous communities may have different views on child welfare, there is no evidence that they oppose actions to stop removing the children from their Nations. Indeed, it would be somewhat surprising if they did as it would amount to a colonial mindset. In any event, assertions from Canada on this point do not constitute evidence and do not assist us in our findings. Moreover, Indigenous communities have obligations to their children such as keeping them safe in their homes whenever possible. While there may be different views from one Nation to another, surely the need to keep the children in their communities as much as possible is the same.
[63] In 2017 CHRT 14, the Panel wrote at para. 133: The orders made in this ruling are to be read in conjunction with the findings above, along with the findings and orders in the Decision and previous rulings (2016 CHRT 2, 2016 CHRT 10 and 2016 CHRT 16). Separating the orders from the reasoning leading to them will not assist in implementing the orders in an effective and meaningful way that ensures the essential needs of First Nations children are met and discrimination is eliminated.
[64] The Decision is where all remedies flow from and it is unnecessary to repeat in great detail all the findings and reasons identified in the Decision. This is why the Panel wrote at para.481: AANDC is ordered to cease its discriminatory practices and reform the FNCFS Program and 1965 Agreement to reflect the findings in this decision.
[65] It is expected that immediate relief is supported by the findings and inform remedies.
[66] This being said, the Panel fully supports Parliament’s intent to establish a Nation-to-Nation relationship and that reconciliation is Parliament’s goal (see Daniels v. Canada (Indian Affairs and Northern Development, [2016] 1 SCR 99), and commends it for adopting this approach. The Panel ordered that the specific needs of communities be addressed and this involves consulting the communities. However, the Panel did not intend this order to delay addressing urgent needs. It foresaw that while agencies would have more resources to stop the mass removal of children, best practices and needs would be identified to improve the services while the program is reformed, and ultimately child welfare would reflect what communities need and want, and the best interest of children principle would be upheld. It is not one or the other; it is one plus the other.
[67] Insofar as Canada asserts it is gathering specific information to address specific needs as ordered by the Panel, it is difficult to reconcile this approach with the disregard of specific demands from specific Nations and Indigenous organizations to improve the child welfare delivery while long term reform is underway (see for example COO’s request for Band representatives, Mushkegowuk Council and NAN’s requests filed in evidence). If a Nation identifies its specific needs, why impose on them the need to complete consultations with all Nations to respond to those specific needs? Nations are distinct and have distinct needs. A one-size fits all approach is not helpful and was found to be discriminatory in the Decision. This is why the Panel has previously ordered to respond to specific needs while reforming and consulting with partners, Indigenous communities, Indigenous governments, First Nations’ agencies, provinces and parties in this case. As a matter of fact, Canada already made agreements with specific communities to respond to specific needs and improve the well-being of many.
[68] To be clear, we acknowledge there has been some progress and encouraging agreements. We simply do not accept some of the arguments advanced by Canada in response to these motions especially in regards to Band representatives, mental health, prevention funds and actual costs for least disruptive measures and other important items.
International Law [69] The CHRA is a result of the implementation of international human rights principles in domestic law (see the Decision at paras 437-439).
[70] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para. 239 [Baker] an appeal against deportation based on the position of Baker’s Canadian born children, the Supreme Court held procedural fairness required the decision-maker to consider international law and conventions, including the United Nations’ Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (the UNCRC). The Court held the Minister’s decision should follow the values found in international human rights law.
[71] As described by the Caring Society, the rights of the child are human rights that recognize childhood as an important period of development with special circumstances.
UNDRIP and child welfare [72] Of particular significance especially in this case is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), GA Res. 61/295, UN GAOR, 61st Sess., Supp. No 49 Vol III, UN Doc A/61/49 (2007) (the UNDRIP). It outlines the individual and collective rights of Indigenous peoples. In May 2016, Canada endorsed the UNDRIP stating that “Canada is now a full supporter of the Declaration, without qualification.
[73] UNDRIP Articles 3, 4, 5, 14, 15, 18, 21 support the rights of equal and just services and programs for Indigenous, with consultation on their social, economic and political institutions.
[74] UNDRIP Articles 7, 21 (2), 22 (1) (2), state that Indigenous peoples have the right to live in freedom and shall not be subject to violence including the forceful removal of their children; that Indigenous people have the right to the improvement of their economic and social conditions; and states will take measures to improve and pay special attention to the rights and special needs of children.
[75] UNDRIP Articles (Article 2, 7, 22) relate directly to the protection of Indigenous children and their right to be free from any kind of discrimination.
[76] Article 8 of UNDRIP reminds governments of their responsibility to ensure that forced assimilation does not occur and that effective mechanisms are put into place to prevent depriving Indigenous peoples of their cultural identities and distinctive traits, disposing them of their lands, territories or resources, population transfer which violates or undermines Indigenous rights, forced assimilation or integration, and discriminatory propaganda.
[77] I