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
2020-07-17
Neutral citation
2020 CHRT 20
File number(s)
T1340/7008
Decision-maker(s)
Marchildon, Sophie; Lustig, Edward P.
Decision type
Ruling
Grounds
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2020 CHRT
20
Date:
July 17, 2020
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
Edward P. Lustig
Table of Contents
I. Context 1
II. Position of the Parties 14
A. The Caring Society’s Position 14
B. The Assembly of First Nations’ Position 17
C. The Chiefs of Ontario’s Position 20
D. The Nishnawbe Aski Nation’s Position 21
E. The Congress of Aboriginal Peoples’ Position 22
F. The Canadian Human Rights Commission’s Position 22
G. Amnesty International’s Position 24
H. Canada’s Position 25
I. Post-Hearing Developments 28
III. General Considerations in Jordan’s Principle Eligibility 29
A. Considerations only apply for the purpose of Jordan’s Principle 29
B. Jordan’s Principle’s objective and context for eligibility 30
C. Use of the term “All First Nations children” by the Panel 34
D. Objective of Panel’s Retention of Jurisdiction 38
E. Structure 38
IV. Issue I 39
A. Introduction 39
B. First Nations identity versus First Nations categories of who is eligible under Jordan’s Principle 41
C. First Nations Rights to Self-Determination 41
D. International Law 43
E. An Act respecting First Nations, Inuit and Métis children, youth and families 51
F. Indian Act 55
G. Treaties and Section 35 of the of the Constitution Act, 1982 58
H. Scope of Complaint 67
I. Conclusion 70
J. Order 75
V. Issue II 76
A. Legal framework 76
B. The discriminatory impact of section 6(2) of the Indian Act and its adverse effects on First Nations children 83
C. S-3 and Enfranchisement provisions 88
D. Order 89
VI. Issue III 89
A. Structure 89
B. Analysis 90
VII. Orders 102
VIII. Retention of jurisdiction 103
I. Context
[1] The Complainants, the First Nations Child and Family Caring Society of Canada (the Caring Society) and the Assembly of First Nations (the AFN) filed a human rights complaint alleging that the inequitable funding of child welfare services on First Nations reserves amounts to discrimination on the basis of race and national or ethnic origin, contrary to section 5 of the Canadian Human Rights Act, RCS 1985, c H-6 (the CHRA).
[2] In First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 (the Merit Decision), this Panel found the Complainants had substantiated their complaint that First Nations children and families living on reserve and in the Yukon are denied equal child and family services, and/or differentiated adversely in the provision of child and family services, pursuant to section 5 of the CHRA.
[3] In the Merit Decision, this Panel found Canada’s definition and implementation of Jordan’s Principle to be narrow and inadequate, resulting in service gaps, delays and denials for First Nations children. Delays were inherently built into the process for dealing with potential Jordan’s Principle cases. Furthermore, Canada’s approach to Jordan’s Principle cases was aimed solely at inter-governmental disputes between the federal and provincial government in situations where a child had multiple disabilities, as opposed to all jurisdictional disputes (including between federal government departments) involving all First Nations children (not just those with multiple disabilities). As a result, Aboriginal Affairs and Northern Development Canada (AANDC), now Indigenous Services Canada (ISC), was ordered to immediately implement the full meaning and scope of Jordan’s Principle (see the Merit Decision at paras. 379-382, 458 and 481).
[4] Three months following the Merit Decision, INAC and Health Canada indicated that they began discussions on the process for expanding the definition of Jordan’s Principle, improving its implementation and identifying other partners who should be involved in this process. They anticipated it would take 12 months to engage First Nations, the provinces and territories in these discussions and develop options for changes to Jordan’s Principle.
[5] In a subsequent ruling (2016 CHRT 10), this Panel specified that its order was to immediately implement the full meaning and scope of Jordan’s Principle, not immediately start discussions to review the definition in the long-term. The Panel noted there was already a workable definition of Jordan’s Principle, which was adopted by the House of Commons, and saw no reason why that definition could not be implemented immediately. INAC was ordered to immediately consider Jordan’s Principle as including all jurisdictional disputes (including disputes between federal government departments) and involving all First Nations children (not only those children with multiple disabilities). The Panel further indicated that the government organization that is first contacted should pay for the service without the need for policy review or case conferencing before funding is provided (see 2016 CHRT 10 at paras. 30-34).
[6] Thereafter, INAC indicated that it took the following steps to implement the Panel’s order:
It corrected its interpretation of Jordan’s Principle by eliminating the requirement that the First Nations child on reserve must have multiple disabilities that require multiple service providers;
It corrected its interpretation of Jordan’s Principle to apply to all jurisdictional disputes and now includes those between federal government departments;
Services for any Jordan’s Principle case will not be delayed due to case conferencing or policy review; and
Working level committees comprised of Health Canada and INAC officials, Director Generals and Assistant Deputy Ministers will provide oversight and will guide the implementation of the new application of Jordan’s Principle and provide for an appeals function.
[7] It also stated it would engage in discussions with First Nations, the provinces and the Yukon on a long-term strategy. Furthermore, INAC indicated it would provide an annual report on Jordan’s Principle, including the number of cases tracked and the amount of funding spent to address specific cases. INAC also updated its website to reflect the changes above, including posting contact information for individuals encountering a Jordan’s Principle case.
[8] While the Panel was pleased with these changes and investments in working towards enacting the full meaning and scope of Jordan’s Principle, it still had some outstanding questions with respect to consultation and full implementation. In the 2016 CHRT 16 ruling, the Panel requested further information from INAC with respect to its consultations on Jordan’s Principle and the process for dealing with Jordan’s Principle cases. Further, INAC was ordered to provide all First Nations and First Nations Child and Family Services Agencies (FNCFS Agencies) with the names and contact information of the Jordan’s Principle focal points in all regions.
[9] Finally, the Panel noted that INAC’s new formulation of Jordan’s Principle once again appeared to be more restrictive than formulated by the House of Commons. That is, INAC was restricting the application of the principle to “First Nations children on reserve” (as opposed to all First Nations children) and to First Nations children with “disabilities and those who present with a discrete, short-term issue for which there is a critical need for health and social supports.” The Panel ordered INAC to immediately apply Jordan’s Principle to all First Nations children, not only to those residing on reserve. In order for the Panel to assess the full impact of INAC’s formulation of Jordan’s Principle, it also ordered INAC to explain why it formulated its definition of the principle as only being applicable to First Nations children with “disabilities and those who present with a discrete, short-term issue for which there is a critical need for health and social supports” (see 2016 CHRT 16 at paras. 107-120).
[10] In May 2017, the Panel made additional findings in light of the new evidence before it and has partially reproduced some of them below for ease of reference:
Accordingly, the Panel finds the evidence presented on this motion establishes that Canada’s definition of Jordan’s Principle does not fully address the findings in the [Merit] Decision and is not sufficiently responsive to the previous orders of this Panel. While Canada has indeed broadened its application of Jordan’s Principle since the [Merit] Decision and removed some of the previous restrictions it had on the use of the principle, it nevertheless continues to narrow the application of the principle to certain First Nations children.
(see 2017 CHRT 14 at para. 67).
Furthermore, the emphasis on the “normative standard of care” or “comparable” services in many of the iterations of Jordan’s Principle above does not answer the findings in the Decision with respect to substantive equality and the need for culturally appropriate services (see [Merit] Decision at para. 465). The normative standard of care should be used to establish the minimal level of service only. To ensure substantive equality and the provision of culturally appropriate services, the needs of each individual child must be considered and evaluated, including taking into account any needs that stem from historical disadvantage and the lack of on-reserve and/or surrounding services (see [Merit] Decision at paras. 399-427),
(see 2017 CHRT 14 at para. 69).
However, the normative standard may also fail to identify gaps in services to First Nations children, regardless of whether a particular service is offered to other Canadian children. As The Way Forward for the Federal Response to Jordan’s Principle – Proposed Definitions document identifies above, under the “Considerations” for “Option One”: “The focus on a dispute [over payment of services between or within governments] does not account for potential gaps in services where no jurisdiction is providing the required services.”
(see 2017 CHRT 14 at para. 71, addition to quotation in original).
This potential gap in services was highlighted in the Pictou Landing [Band Council v. Canada (Attorney General), 2013 FC 342] case and in the [Merit] Decision. Where a provincial policy excluded a severely handicapped First Nations teenager from receiving home care services simply because he lived on reserve, the Federal Court determined that Jordan’s Principle existed precisely to address the situation (see Pictou Landing at paras. 96-97).
Furthermore, First Nations children may need additional services that other Canadians do not, as the Panel explained in the [Merit] Decision at paragraphs 421-422:
[421] In her own recent comprehensive research assessing the health and wellbeing of First Nations people living on reserve, Dr. Bombay found that children of Residential School survivors reported greater adverse childhood experiences and greater traumas in adulthood, all of which appeared to contribute to greater depressive symptoms in Residential School offspring (see Annex, ex. 53 at p. 373; see also Transcript Vol. 40 at pp. 69, 71).
[422] Dr. Bombay’s evidence helps inform the child and family services needs of Aboriginal peoples. Generally, it reinforces the higher level of need for those services on-reserves. By focusing on bringing children into care, the FNCFS Program, corresponding funding formulas and other related provincial/territorial agreements perpetuate the damage done by Residential Schools rather than attempting to address past harms. The history of Residential Schools and the intergenerational trauma it has caused is another reason - on top of some of the other underlying risk factors affecting Aboriginal children and families such as poverty and poor infrastructure - that exemplify the additional need of First Nations people to receive adequate child and family services, including least disruptive measures and, especially, services that are culturally appropriate.
(see 2017 CHRT 14 at para. 72)
[11] Also, in the 2017 CHRT 14 ruling the Panel made additional findings that are relevant to the questions before us as part of this ruling:
Therefore, the fact that it is considered an “exception” to go beyond the normative standard of care is concerning given the findings in the [Merit] Decision, which findings Canada accepted and did not challenge. The discrimination found in the [Merit] Decision is in part caused by the way in which health and social programs, policies and funding formulas are designed and operate, and the lack of coordination amongst them. The aim of these programs, policies and funding should be to address the needs for First Nations children and families. There should be better coordination between federal government departments to ensure that they address those needs and do not result in adverse impacts or service delays and denials for First Nations. Over the past year, the Panel has given Canada much flexibility in terms of remedying the discrimination found in the [Merit] Decision. Reform was ordered. However, based on the evidence presented on this motion regarding Jordan’s Principle, Canada seems to want to continue proffering similar policies and practices to those that were found to be discriminatory. Any new programs, policies, practices or funding implemented by Canada should be informed by previous shortfalls and should not simply be an expansion of previous practices that did not work and resulted in discrimination. They should be meaningful and effective in redressing and preventing discrimination.
(see 2017 CHRT 14 at para. 73, emphasis added).
Canada’s narrow interpretation of Jordan’s Principle, coupled with a lack of coordination amongst its programs to First Nations children and families […] along with an emphasis on existing policies and avoiding the potential high costs of services, is not the approach that is required to remedy discrimination. Rather, decisions must be made in the best interest of the children. While the Ministers of Health and Indigenous Affairs have expressed their support for the best interest of children, the information emanating from Health Canada and INAC, as highlighted in this ruling, does not follow through on what the Ministers have expressed.
(see 2017 CHRT 14 at para. 74).
Overall, the Panel finds that Canada is not in full compliance with the previous Jordan’s Principle orders in this matter. It tailored its documentation, communications and resources to follow its broadened, but still overly narrow, definition and application of Jordan’s Principle. Presenting a criterion-based definition, without mentioning that it is solely a focus, does not capture all First Nations children under Jordan’s Principle. Furthermore, emphasizing the normative standard of care does not ensure substantive equality for First Nations children and families. This is especially problematic given the fact that Canada has admittedly encountered challenges in identifying children who meet the requirements of Jordan’s Principle and in getting parents to come forward to identify children who have unmet needs (see Transcript of Cross-Examination of Ms. Buckland at p. 43, lines 1-8).
(see 2017 CHRT 14 at para. 75).
[12] Further in the ruling, the Panel wrote:
Despite Jordan’s Principle being an effective means by which to immediately address some of the shortcomings in the provision of child and family services to First Nations identified in the [Merit] Decision while a comprehensive reform is undertaken, Canada’s approach to the principle risks perpetuating the discrimination and service gaps identified in the [Merit] Decision, especially with respect to allocating dedicated funds and resources to address some of these issues (see [Merit] Decision at para. 356)
(see 2017 CHRT 14, at para. 78).
Despite this, nearly one year since the April 2016 ruling and over a year since the [Merit] Decision, Canada continues to restrict the full meaning and intent of Jordan’s Principle. The Panel finds Canada is not in full compliance with the previous Jordan’s Principle orders in this matter. There is a need for further orders from this Panel, pursuant to section 53(2)(a) and (b) of the Act, to ensure the full meaning and scope of Jordan’s Principle is implemented by Canada.
(see 2017 CHRT 14 at para. 80).
The orders made in this ruling are to be read in conjunction with the findings above, along with the findings and orders in the [Merit] 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.
(see 2017 CHRT 14 at para. 133).
[13] Akin to what was said in 2019 CHRT 7 at para. 16, the above will also inform some of the reasons in this ruling.
[14] The Tribunal’s May 26, 2017 order (2017 CHRT 14) required Canada to base its definition and application of Jordan’s Principle on key principles, one of which was that Jordan’s Principle is a child-first principle that applies equally to all First Nations children, whether resident on or off reserve.
[15] Canada challenged some aspects of the 2017 CHRT 14 ruling by way of a judicial review which was subsequently discontinued following a consent order from this Tribunal essentially amending, on the consent of the parties, some aspects of the orders pertaining to timelines and clinical case conferencing. No part of this judicial review questioned or challenged the Tribunal’s order that Canada’s definition and application of Jordan’s Principle must apply equally to all First Nations children, whether resident on or off reserve.
[16] In 2017 CHRT 35, the Tribunal amended its orders to reflect some wording changes suggested by the parties. The Jordan’s Principle definition ordered by the Panel and accepted by the parties is reproduced in bold below:
B. As of the date of this ruling, Canada’s definition and application of Jordan’s Principle shall be based on the following key principles:
i. Jordan’s Principle is a child-first principle that applies equally to all First Nations children, whether resident on or off reserve. It is not limited to First Nations children with disabilities, or those with discrete short-term issues creating critical needs for health and social supports or affecting their activities of daily living.
ii. Jordan’s Principle addresses the needs of First Nations children by ensuring there are no gaps in government services to them. It can address, for example, but is not limited to, gaps in such services as mental health, special education, dental, physical therapy, speech therapy, medical equipment and physiotherapy.
iii. When a government service, including a service assessment, is available to all other children, the government department of first contact will pay for the service to a First Nations child, without engaging in administrative case conferencing, policy review, service navigation or any other similar administrative procedure before the recommended service is approved and funding is provided. Canada may only engage in clinical case conferencing with professionals with relevant competence and training before the recommended service is approved and funding is provided to the extent that such consultations are reasonably necessary to determine the requestor’s clinical needs. Where professionals with relevant competence and training are already involved in a First Nations child’s case, Canada will consult those professionals and will only involve other professionals to the extent that those professionals already involved cannot provide the necessary clinical information. Canada may also consult with the family, First Nation community or service providers to fund services within the timeframes specified in paragraphs 135(2)(A)(ii) and 135(2)(A)(ii.1) where the service is available, and will make every reasonable effort to ensure funding is provided as close to those timeframes where the service is not available. After the recommended service is approved and funding is provided, the government department of first contact can seek reimbursement from another department/government;
iv. When a government service, including a service assessment, is not necessarily available to all other children or is beyond the normative standard of care, the government department of first contact will still evaluate the individual needs of the child to determine if the requested service should be provided to ensure substantive equality in the provision of services to the child, to ensure culturally appropriate services to the child and/or to safeguard the best interests of the child. Where such services are to be provided, the government department of first contact will pay for the provision of the services to the First Nations child, without engaging in administrative case conferencing, policy review, service navigation or any other similar administrative procedure before the recommended service is approved and funding is provided. Clinical case conferencing may be undertaken only for the purpose described in paragraph 135(1)(B)(iii). Canada may also consult with the family, First Nation community or service providers to fund services within the timeframes specified in paragraphs 135(2)(A)(ii) and 135(2)(A)(ii.1) where the service is available, and will make every reasonable effort to ensure funding is provided as close to those timeframes where the service is not available. After the recommended service is provided, the government department of first contact can seek reimbursement from another department/government.
v. While Jordan’s Principle can apply to jurisdictional disputes between governments (i.e., between federal, provincial or territorial governments) and to jurisdictional disputes between departments within the same government, a dispute amongst government departments or between governments is not a necessary requirement for the application of Jordan’s Principle.
C. Canada shall not use or distribute a definition of Jordan’s Principle that in any way restricts or narrows the principles enunciated in order 1(b).
[17] The Panel found that while it is accurate to say the Tribunal did not provide a definition of a “First Nation child” in its orders, it is also true to say that none of the parties including Canada sought clarification on this point until this motion. To be fair, on this issue, the Panel believes that it should focus on ensuring its remedies are efficient and effective in light of the evidence before it and in the best interests of children more than on Canada’s compliance (see 2019 CHRT 7 at para. 20).
[18] The parties have been discussing the issue outside the Tribunal process but have not yet reached a consensus on this issue. Therefore, the Caring Society requested adjudication of whether Canada’s definition of “First Nations child” for the purposes of implementing Jordan’s Principle complies with this Tribunal’s orders.
[19] In an interim ruling, the Panel determined the issue of a “First Nations child” definition was best addressed by way of a full hearing. The Panel Chair requested the parties to make arguments on international law including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); the recent UN Human Rights Committee’s McIvor [McIvor UNHRC] decision findings that sex discrimination continued in the Indian Act, RSC 1985, c I-5; Aboriginal law; human rights and substantive equality; constitutional law and other aspects, in order to allow the Panel to make an informed decision on the issue of the “First Nation child” definition following the upcoming hearing. Doing this analysis through a multi-faceted lens is paramount given the probable incompatibilities between the UNDRIP and the Indian Act (see 2019 CHRT 7 at para. 22).
[20] The Panel further wrote that:
[…] if the current version of the Indian Act discriminates and excludes segments of women and children, it is possible that but for the sex discrimination, the children excluded would be considered eligible to be registered under the Indian Act.
(2019 CHRT 7 at para. 22).
[21] It further wrote that:
In those circumstances the child would be considered by Canada under Canada’s Jordan’s Principle eligibility for registration criteria for First Nations children who are not ordinarily resident on-reserve and, who do not have Indian Act status. While this should not be read as a final determination on Canada’s current policy under Jordan’s Principle, the Panel also wants to ensure to craft effective remedies that eliminate discrimination and prevent it from reoccurring. Needless to say, it cannot condone a different form of discrimination while it makes its orders for remedies. Hence, the need for a full and complete hearing on this issue where the above would be addressed by all parties.
(2019 CHRT 7 at para. 22).
During the January 9, 2019 motion hearing, Panel Chair Marchildon expressed the Panel’s desire to respect Indigenous Peoples’ inherent rights of self-determination and self-governance including their right to determine citizenship in crafting all its remedies. Another important point is that the Panel not only recognizes these rights as inherent to Indigenous Peoples, they are also human rights of paramount importance. The Panel in its [Merit] Decision and subsequent rulings, has recognized the racist, oppressive and colonial practices exerted by Canada over Indigenous Peoples and entrenched in Canada’s programs and systems (see for example 2016 CHRT 2 at para. 402). Therefore, it is mindful that any remedy ordered by the Panel must take this into account. In fact, in 2018 CHRT 4, the Panel crafted a creative and innovative order to ensure it provided effective immediate relief remedies to First Nations children while respecting the principles in the UNDRIP, the Nation-to-Nation relationship, the Indigenous rights of self-governance and the rights of Indigenous rights holders. It requested comments from the parties and no suggestions or comments were made by the parties on those specific orders. The Panel has always stressed the need to ensure the best interests of children are respected in its remedies and the need to eliminate discrimination and prevent it from reoccurring.
(see 2019 CHRT 7 at para. 23).
This Panel continues to supervise Indigenous and Northern Affairs Canada, now Indigenous Services Canada’s, implementation and actions in response to findings that First Nations children and families living on reserve and in the Yukon are denied equal child and family services, and/or are differentiated adversely in the provision of child and family services, pursuant to section 5 of the CHRA (see the [Merit] Decision).
(see 2019 CHRT 7 at para. 24)
At the October 30-31, 2019 hearing (October hearing), Canada’ witness, Dr. Valerie Gideon, Senior Assistant Deputy Minister of the First Nations and Inuit Health Branch at the Department of Indigenous Services Canada, admitted in her testimony that the Tribunal’s May 2017 CHRT 14 ruling and orders on Jordan’s Principle definition and publicity measures caused a large jump in cases for First Nations children. In fact, from July 2016 to March 2017 there were approximately 5,000 Jordan’s Principle approved services. After the Panel’s ruling, this number jumped to just under 77,000 Jordan’s Principle approved services in 2017/2018. This number continues to increase. At the time of the October hearing, over 165 000 Jordan’s Principle approved services have now been approved under Jordan’s Principle as ordered by this Tribunal. This is confirmed by Dr. Gideon’s testimony and it is not disputed by the Caring Society. Furthermore, it is also part of the new documentary evidence presented during the October hearing and now forms part of the Tribunal’s evidentiary record. Those services were gaps in services that First Nations children would not have received but for the Jordan’s Principle broad definition as ordered by the Panel. In response to Panel Chair Sophie Marchildon’s questions, Dr. Gideon also testified that Jordan’s Principle is not a program, it is considered a legal rule by Canada. This is also confirmed in a document attached as an exhibit to Dr. Gideon’s affidavit. Dr. Gideon testified that she wrote this document (see Affidavit of Dr. Valerie Gideon, dated, May 24, 2018 at exhibit 4, at page 2). This document named, Jordan’s Principle Implementation-Ontario Region, under the title, Our Commitment states as follows:
No sun-setting of Jordan’s Principle
Jordan’s Principle is a legal requirement not a program and thus there will be no sun-setting of Jordan’s Principle […] There cannot be any break in Canada’s response to the full implementation of Jordan’s Principle. [Emphasis added]
(see 2019 CHRT 7 at para. 25)
The Panel is delighted to hear that thousands of services have been approved since it issued its orders. It is now proven that this substantive equality remedy has generated significant change for First Nations children and is efficient and measurable. While there is still room for improvement, it also fosters hope. We would like to honor Jordan River Anderson and his family for their legacy. We also acknowledge the Caring Society, the AFN and the Canadian Human Rights Commission for bringing this issue before the Tribunal and the Caring Society, the AFN, the COO, the NAN, and the Canadian Human Rights Commission for their tireless efforts. We also honor the Truth and Reconciliation Commission for its findings and recommendations. Finally, the Panel recognizes that while there is more work to do to eliminate discrimination in the long term, Canada has made substantial efforts to provide services to First Nations children under Jordan’s Principle especially since November 2017. Those efforts are made by people such as Dr. Gideon and the Jordan’s Principle team and the Panel believes it is noteworthy. This is also recognized by the Caring Society in an April 17, 2018 letter filed in the evidence (see Dr. Valerie Gideon’s affidavit, dated December 21st, 2018, at Exhibit A). This is not to convey the message that a colonial system which generated racial discrimination across the country is to be praised for starting to correct it. Rather, it is recognizing the decision-makers and the public servants’ efforts to implement the Tribunal’s rulings hence, truly impacting the lives of children.
(see 2019 CHRT 7 at para. 26).
[22] On February 21, 2019, the Tribunal issued an interim ruling on Jordan’s Principle (see 2019 CHRT 7) and found:
[85] Furthermore, the Panel believes it would be in the best interests of non-status off-reserve children to make a temporary order with parameters that would apply until the “First Nation child” definition has been resolved, so as to avoid situations like the one that occurred in S.J.’s case. Especially that it may take a few months before the issue is resolved.
[86] Finally, the Panel notes that Canada’s Registration requirements as per the Indian Act have a direct correlation with whom receives services under Jordan’s Principle and therefore support the importance of a full hearing on this issue:
The recognition of Indigenous identity is a complex question. In August 2015, Bill S-3 amended the Indian Act by creating seven new registration categories, in response to the decision in Descheneaux c. Canada rendered by the Superior Court of Quebec in August 2015. These provisions came into force in December 2017 and appropriately, Canada re-reviewed the requests submitted under Jordan’s Principle for children who may have been impacted by the decision. (see affidavit of Dr. Valerie Gideon, dated December 21st, 2018, at para.15).
Additional amendments to the definition under the Indian Act will be developed subsequent to a period of consultation with First Nations. When part B of Bill S-3 becomes law, Jordan’s Principle requests will be processed in compliance with whatever definition affecting eligibility emerges from that process (see affidavit of Dr. Valerie Gideon, dated December 21st, 2018, at para. 16).
[87] The Panel, in light of its findings and reasons, its approach to remedies and its previous orders in this case, above mentioned and, pursuant section 53 (2) a and b of the CHRA, orders that, pending the adjudication of the compliance with this Tribunal’s orders and of Canada’s definition of “First Nations child” for the purposes of implementing Jordan’s Principle, and in order to ensure that the Tribunal’s orders are effective, Canada shall provide First Nations children living off-reserve who have urgent and/or life-threatening needs, but do not have (and are not eligible for) Indian Act status, with the services required to meet those urgent and/or life-threatening service needs, pursuant to Jordan’s Principle.
[88] This order will be informed by the following principles:
[89] This interim relief order applies to: 1. First Nations children without Indian Act status who live off-reserve but are recognized as members by their Nation, and 2. who have urgent and/or life-threatening needs. In evaluating urgent and/or life-threatening needs due consideration must be given to the seriousness of the child’s condition and the evaluation of the child made by a physician, a health professional or other professionals involved in the child’s assessment. Canada should ensure that the need to address gaps in services, the need to eliminate all forms of discrimination, the principle of substantive equality and human rights including Indigenous rights, the best interests of the child, the UNDRIP and the Convention on the Rights of the Child guide all decisions concerning First Nations children.
[90] The Panel is not deciding the issue of Jordan’s Principle eligibility based on status versus non-status. This issue will be further explored at a full hearing on the merits of this issue.
[91] The Panel stresses the importance of the First Nations’ self-determination and citizenship issues, and this interim relief order or any other orders is not intended to override or prejudice First Nations’ rights.
[92] This interim relief order only applies until a full hearing on the issue of the definition of a “First Nation child” under Jordan’s Principle and a final order is issued.
[23] The present ruling deals with the issue on its merits.
II. Position of the Parties
A. The Caring Society’s Position
[24] The Caring Society argues that Canada is impermissibly narrowing the scope of “all First Nations children” in the context of Jordan’s Principle, as set out in the Panel’s Order in paragraph 135(1)(B)(i) of 2017 CHRT 14. In particular, the Caring Society contends that Canada’s interpretation does not comply with the Order in paragraph 135(1)(c) of the same ruling that “Canada shall not use […] a definition of Jordan’s Principle that in any way restricts or narrows the principles enunciated in order 1(B).”
[25] The Caring Society identifies three categories of First Nations children it indicates Canada has agreed are within the scope of the order:
A child, whether resident on or off reserve, with Indian Act status;
A child, whether resident on or off reserve, who is eligible for Indian Act status; and
A child, residing on or off reserve, covered under a First Nations self-government agreement or arrangement.
[26] The Caring Society presents three additional categories of First Nations children that it argues Canada is improperly excluding, and who are the focus of its submissions:
Children, residing on or off reserve whom a First Nations group, community or people recognizes as belonging to that group, community or people, in accordance with the customs or traditions of that First Nations group, community or people;
First Nations children, residing on or off reserve, who have lost their connection to their First Nations communities due to the operation of the Indian Residential Schools System, the Sixties Scoop, or discrimination within the FNCFS Program; and
First Nations children, residing on or off reserve, who do not have Indian Act status and who are not eligible for Indian Act status, but have a parent/guardian with, or who is eligible for, Indian Act status.
[27] The Caring Society does not seek to expand Jordan’s Principle beyond the categories it identifies. In particular, it does not seek relief for individuals who self-identify as First Nations but lack one of the three objective markers, nor does it seek relief for Inuit and Métis children through this complaint.
[28] The Caring Society submits that the Tribunal’s Orders have consistently referred to “all First Nations children” without any limitation based on Indian Act status or on-reserve residency. The Caring Society asserts that Indian Act status or residence on a reserve do not correspond with the discrimination in this case that is “on the basis of race and/or national or ethnic origin” (2016 CHRT 2 at paras 6, 23, 395-396, 459, and 473). The Caring Society contends that applying Jordan’s Principle to all First Nations children is consistent with human rights principles that focus on the needs of the children. Failing to consider requests from First Nations children living off-reserve without Indian Act status introduces discrimination on the basis of reserve residency. The Caring Society suggests the focus should be on the best interests and individual needs of each First Nations child and that Indian Act status and on-reserve residency will not identify all First Nations children in need. The Caring Society notes that Jordan’s Principle does not mean every child will be granted services. Rather, Jordan’s Principle requires the individual needs of all First Nations children to be considered on the merits.
[29] The Caring Society asserts that Canada’s definition of First Nations children does not acknowledge First Nations children recognized by a First Nation as belonging to the First Nation. The Caring Society highlighted the Panel Chair’s remarks earlier in the case that children are at the heart of First Nations communities. The Caring Society claims that Canada’s definition fails to recognize that “[c]ultural and ethnic labels do not lend themselves to neat boundaries” (Daniels v. Canada (Indian and Northern Affairs Development), 2016 SCC 12, at para 17 [Daniels]). In a Nation-to-Nation relationship, it is appropriate to recognize First Nations communities’ views of First Nations identity. This is consistent with the position of the Chiefs-in-Assembly and self-determination principles underlying s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. The Caring Society also invokes Canada’s fiduciary duty to First Nations children as a reason Canada must provide Jordan’s Principle services to First Nations children who are recognized by their community.
[30] The Caring Society suggests that Canada’s criteria for Jordan’s Principle eligibility exclude First Nations children who have lost their connection to their community due to the Indian Residential Schools System, the Sixties Scoop, or discrimination within the Firs