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

First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indian and Northern Affairs)
Collection
Canadian Human Rights Tribunal
Date
2016-09-14
Neutral citation
2016 CHRT 16
File number(s)
T1340/7008
Decision-maker(s)
Marchildon, Sophie; Lustig, Edward P.
Decision type
Ruling
Decision status
Interim
Grounds
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2016 CHRT
16
Date:
September 14, 2016
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 Aboriginal Affairs and Northern Development Canada)
Respondent
- and -
Chiefs of Ontario
- and -
Amnesty International
- and -
Nishnawbe Aski Nation
Interested Parties
Ruling
Members: Sophie Marchildon and Edward Lustig
Outline
I. Update to remedial order 1
II. Preliminary remarks 2
III. The FNCFS Program 5
A. Adjustments to funding formula assumptions and flaws 5
B. Funding for legal fees, capital infrastructure, culturally appropriate services, child service purchase amount and the receipt, assessment and investigation of child protection reports 14
C. Adjustments for inflation 17
D. Cost overruns and the reallocation of funds from other INAC programs 18
E. Additional information requests 19
IV. The 1965 Agreement in Ontario 21
A. Updating the 1965 Agreement 21
B. Remoteness Quotient 23
C. Allocation of immediate relief funding 25
D. Expanding the definition of ‘prevention services’ 27
E. Reinstate cost-sharing of capital expenditures 29
F. Eligibility 29
G. Special study 30
H. One-time contingency fund 31
V. Jordan’s Principle 31
VI. Other requested orders 37
A. No reductions in funding 37
B. Adoption of the principle that children and youth living in residential care must live as close as possible to their home communities 37
C. National Advisory Committee 38
D. Canadian Incidence Study of Child Abuse and Neglect 38
E. Updating policies, procedures and agreements 39
F. Training and performance metrics for federal public servants 40
G. Funding for the Aboriginal Peoples Television Network 41
H. Review decisions with respect to funding new agencies 42
I. Funding for research, scholarships and conferences 42
J. Appoint the Commission to engage all parties and create a draft order 43
VII. Order 44
A. Additional Immediate measures to be taken 45
B. Reporting 45
C. Additional information to be provided 47
D. Retention of jurisdiction 48
VIII. In-person case management meeting 48
I. Update to remedial order
[1] This Panel continues to supervise Indigenous and Northern Affairs Canada’s (INAC’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 Canadian Human Rights Act (the CHRA) [see 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 Decision)].
[2] Generally, INAC was ordered to cease its discriminatory practices and reform the First Nations Child and Family Services (FNCFS) Program and the Memorandum of Agreement Respecting Welfare Programs for Indians applicable in Ontario (the 1965 Agreement) to reflect the Panel’s findings in the Decision. INAC was also ordered to cease applying a narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of the principle. The order and findings in the Decision are the main reference points from which the Panel bases any further orders.
[3] Following up on the general order in the Decision, 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 10, the Panel reiterated and emphasized certain findings and adverse impacts from the Decision and ordered INAC to take measures to address those findings and adverse impacts immediately. To assist the Panel in assessing the implementation of the Decision and subsequent order, INAC was directed to provide a comprehensive report indicating how the findings in the Decision were being addressed to provide immediate relief for First Nations children.
[4] In response to INAC’s reporting requirements and following further submissions from the parties thereon, this ruling updates the Panel’s order in addressing the findings of the Decision in the short term. Other short, mid and long-term reforms of the FNCFS Program and the 1965 Agreement, along with other requests for compensation under sections 53(2)(e) and 53(3) of the CHRA, will be dealt with at a later point.
[5] In general, the Complainants, the First Nations Child and Family Caring Society (the Caring Society) and the Assembly of First Nations (the AFN), along with the Commission and the Interested Parties participating at this stage of the proceedings, the Chiefs of Ontario (the COO) and the Nishnawbe Aski Nation (the NAN), are in agreement about the orders requested of the Panel to address the findings of the Decision in the short-term. Their submissions and requested orders are collectively referred to as those of the ‘Complainants, Commission and Interested Parties’ or ‘CCI Parties’ in this ruling. Where the submissions of the Complainants, Commission or Interested Parties may differ, those submissions are specifically outlined.
II. Preliminary remarks
[6] The Panel thanks the parties and interested parties for their most recent submissions. It has carefully considered them and found them to be very helpful. The Panel recognizes the time, effort and resources dedicated by the parties to complete them. Generally, the Panel is supportive of the majority of the orders requested made by the CCI Parties.
[7] The Panel is pleased to learn that the federal government has accepted to do a number of important things in response to the Decision and has made some progress in implementing the findings and orders from the Decision. Overall, the Panel believes the federal government is working towards reforming its approach to First Nations child and family services and implementing meaningful change for First Nations children and families.
[8] That said, and as addressed in this ruling, more progress still needs to be made in the immediate and long-term to ensure the discrimination identified in the Decision is remedied. In this regard, as emphasized in its last ruling (2016 CHRT 10), the Panel believes the dissemination of relevant and timely information continues to be of the utmost importance in rebuilding trust between the parties and avoiding conflicts and delays going forward.
[9] Generally, the Panel fails to understand why much of the information provided in INAC’s most recent submissions could not have been delivered earlier, especially if this information formed part of the rationale for determining the budget for the FNCFS Program back in March 2016. INAC ought to have known this information was and remains important in responding to the Panel’s information requests and reporting orders. Indeed, the Panel and the CCI Parties have been requesting this type of information for months now. It rests on INAC and the federal government to implement the Panel’s findings and orders, and to clearly communicate how it is doing so, including providing a rationale for their actions and any supporting data and/or documentation, ensures the Panel and the parties that this is indeed the case.
[10] INAC has also recognized the CCI Parties as partners in the reform process and identified a need to consult Indigenous peoples across Canada to obtain their input on reforms. While this is necessary and consistent with the federal government’s duty to consult Indigenous peoples, again, improved communication surrounding such endeavours would greatly assist the Panel in understanding INAC’s strategy to address the Decision and would help build the trust necessary to establish a partnership between the parties. It is also unclear if or who has been consulted among the Indigenous community at this point, including if any social workers or other experts in the field of child welfare have been consulted. On this last point, INAC has previously acknowledged that it does not have expertise in the provision of child and family services to First Nations. Therefore, the need to consult with experts in the field, including the Caring Society, should be a priority.
[11] Likewise, the Panel has made a number of comments since the Decision on the importance of the parties meeting to discuss reform of the FNCFS Program and the 1965 Agreement in the immediate and long term. In this regard, the Panel notes the Caring Society, the AFN and INAC did not even acknowledge until their most recent submissions that they had met several times to discuss reforms and the reestablishment of the National Advisory Committee (the NAC). This is important information because the ability of the parties to work together at this immediate relief stage is a good way to test if the reinstatement of the NAC will yield success in reforming the provision of First Nations child and family services in the long term. INAC needs to improve its communication and information sharing with the other parties and the Panel, while continuing to build the partnership it has acknowledged. In addition, the Panel requests that it be kept informed of any relevant memorandums of understanding and/or agreements reached between the parties and/or important meetings discussing the subject matter of this case.
[12] As always, the Panel continues to encourage the parties to communicate effectively and work together. It also remains willing to assist the parties in reaching that goal. While the Panel is committed to eradicating discrimination and seeing the provision of First Nations child and family services reformed, and will continue to supervise the implementation of its orders in this regard; it also steadfastly believes that collaboration amongst the parties outside the four walls of the Tribunal is the best way to ensure reconciliation and effective reforms now and into the future. All parties are clearly dedicated to reconciliation and should continue to attempt to work together towards that goal.
[13] That said, the Panel will make further orders if need be to ensure discrimination is eliminated. In this vein, the Panel will rule on some immediate relief measures in this ruling and will leave others to be discussed at a future in-person case management meeting. The Panel appreciates that some parties wish this remedial process would proceed more quickly. While the Panel shares this sentiment, remedying the discrimination found in the Decision is a complex matter and depends greatly on the way in which information is provided to the Panel. In fact, some CCI Parties have cautioned the Panel to be careful in how it crafts its orders in terms of adequacy and impacts. Consequently, the Panel wishes to ensure all parties have a full and ample opportunity to present their points of view and that it has all necessary information to make informed orders. Nonetheless, the Panel hopes to see change materialize at the earliest opportunity. It believes some of that change can happen immediately while INAC’s First Nations child welfare system is being reformed through consultations with Indigenous peoples and the parties involved in this case. The Panel makes the following ruling in this regard.
III. The FNCFS Program
[14] INAC’s report in response to the Panel’s ruling in 2016 CHRT 10 provided some information on how it is immediately dealing with the shortcomings of the FNCFS Program identified in the Decision. INAC submits that it is addressing these shortcomings through new financial investments in the FNCFS Program, along with modifications to its existing funding formulas, until a full reform of the FNCFS Program can be completed. Hence, INAC is of the view that many of the immediate relief measures proposed by the CCI Parties need to be addressed as part of mid to long-term reform of the FNCFS Program, after thorough engagement with key partners.
[15] In its most recent report, INAC outlines the new financial investments in the FNCFS Program allocated by the federal government in Budget 2016 over the next five years, along with the budget allocation of each FNCFS agency for this fiscal year and the funding models used to generate those budgets.
[16] Generally, the CCI Parties submit that INAC has not shown whether or how new investments in the FNCFS Program will be sufficient to address the findings in the Decision, especially in the short term.
[17] For the reasons that follow, the Panel is of the view that further orders, including additional information and reporting by INAC, are required to ensure the findings in the Decision with respect to the FNCFS Program have been or will be addressed in the short term.
A. Adjustments to funding formula assumptions and flaws
[18] One of the main findings in the Decision is that INAC’s FNCFS Program, which flows funding through formulas, Directive 20-1 and the Enhanced Prevention Focused Approach (EPFA), provides funding based on flawed assumptions about the number of children in care, the number of families in need of services, and population levels that do not accurately reflect the real service needs of many on-reserve communities. This results in inadequate fixed funding for operation costs (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/territorially mandated child welfare services, let alone culturally appropriate services. Most importantly, inadequate funding for operation and prevention costs provides an incentive to bring children into care because eligible maintenance expenditures to maintain a child in care are reimbursable at cost (see the Decision at paras. 384-389 and 458).
[19] In 2016 CHRT 10, the Panel ordered INAC to immediately take measures to address the assumptions and flaws in its funding formulas, including all the underlined items at paragraphs 20 and 23 of that ruling. INAC was to provide a comprehensive report explaining how those flaws and assumptions are being addressed in the short term to provide immediate relief to First Nations on reserve. The Panel’s order also required INAC to provide detailed information on budget allocations for each FNCFS Agency and timelines for when those allocations will be rolled-out, including detailed calculations of the amounts received by each agency in 2015-2016; the data relied upon to make those calculations; and, the amounts each has or will receive in 2016-2017, along with a detailed calculation of any adjustments made as a result of immediate action taken to address the findings in the Decision (see 2016 CHRT 10 at paras. 20-25).
[20] Since 2016 CHRT 10, INAC submits Canada's immediate relief investments will address and help to remediate the discrimination identified by the Tribunal and will improve outcomes for First Nations children and families. The investments will provide greater prevention services to families and support critically needed FNCFS Program stability, while ensuring that no disruption of services occurs during work to reform the FNCFS Program.
[21] Through increased investment in the FNCFS Program, INAC submits it is eliminating the use of Directive 20-1. Where Directive 20-1 applies, FNCFS Agencies will be provided funding through existing mechanisms this fiscal year, but with increased funding levels determined using the more updated EPFA costing model. In 2016-17, INAC is investing $17.5 million for prevention services and programs as immediate relief for FNCFS Agencies still under the Directive 20-1 regime.
[22] For jurisdictions under the EPFA funding model, INAC indicates that updates include: additional funding to address population increases; allowing upward adjustments to be made for 26 agencies with more than 6% of children in care; adjustments to staff salaries to ensure comparability with provincial rates; updates to reflect changes in provincial standards (e.g. caseload ratios for social workers or other front line workers) and to support intake and investigation services; updates to service delivery standards, such as increasing the percentage used to calculate off-hour emergency services and increased funding for staff travel; increased funding for agency audit, insurance and legal services; and, increased amounts for the service purchase per child (i.e. service providers will receive $175 per 0-18 child served, regardless of jurisdiction).
[23] INAC submits that Budget 2016 amounts to address the flaws in Directive 20-1 and the EPFA are higher than what was identified by INAC in its 2012 Way Forward Presentation (see the Decision at paras. 295-298). Over five years, the Way Forward Presentation estimated $108 million to, among other things, expand the EPFA to the jurisdictions still under Directive 20-1, while topping-up existing EPFA jurisdictions. While the CCI Parties focus on Budget 2016’s year 1 investment in stating that new funding falls short of the estimated five-year totals in the Way Forward Presentation, INAC submits the proper comparison is Budget 2016’s year 5 investments. That is, Budget 2016 proposes $176.8 million in year 5 to, among other things, expand prevention based services in Directive 20-1 jurisdictions and top-up jurisdictions operating under the EPFA.
[24] With regard to small FNCFS Agencies, INAC indicates that agencies with less than 800 children in care will still be subject to scaling with respect to their core funding (expenses for Board of Directors, employee salaries, benefits, training and travel, funding for agency evaluations, audits, insurance, legal fees and administrative overhead). However, this does not decrease the funding provided to an agency for protection or prevention services. According to INAC, future approaches to funding small agencies will be part of longer term engagement with First Nations and provincial partners.
[25] The CCI Parties submit that the true measure of the impact of INAC’s immediate relief measures is the extent to which the incentive to remove First Nations children from their homes has been reduced. They contend that INAC’s compliance report is bereft of assurances that the incentives to bring children into care identified in the Decision will be reduced by its immediate relief investments and changes to its funding formulas; they also submit that INAC has not shown that additional program investments will allow FNCFS Agencies to provide services on par with those provided by the provinces.
[26] While upwards adjustments are being made for agencies serving more than 6% of children in care, the CCI Parties are unclear about the extent to which the actual percentage of children in care is being funded. Furthermore, there appears to be no upwards adjustments for agencies serving more than 20% of families in need. For small agencies, the CCI Parties submit that INAC was not given the option of deferring the problems caused by scaling core funding based on population levels.
[27] The CCI Parties request an order that INAC immediately make adjustments to its funding formulas to ensure operations budgets for FNCFS Agencies approximate actual costs. They suggest various modifications to INAC’s funding formulas, including:
· increases to the base amounts in the formula, including for the child purchase amount;
· that FNCFS Agencies, serving a population where the percentage of children in care and percentage of families receiving services exceeds 6% and 20% respectively, be provided with an upward adjustment for their operations and prevention budgets in proportion to the excess percentages;
· that no downwards adjustments be applied to FNCFS Agencies with fewer than 6% of children in care and/or serving fewer than 20% of families;
· that adjustments to the fixed amount in the funding formula for population levels be increased; and
· that the fixed amount in the funding formula for all FNCFS Agencies serving fewer than 251 Registered Indian children be the same amount provided to agencies serving at least 251 Registered Indian children.
[28] The Panel recognizes the efforts made so far by INAC and its desire to improve the lives of First Nations children through negotiations with key partners. The Panel also finds INAC`s explanation outlined in paragraph 23 above to be reasonable in terms of the amount of funding being higher than the amount in the 2012 Way Forward Presentation. Aside from the overall amount of additional funding being invested in the FNCFS Program, the Panel was pleased to learn that new funding (approximately $28.4 million) was actually provided to FNCFS Agencies on July 1st, 2016, with other additional funds coming before the end of this fiscal year, in part to address some of the flawed assumptions in INAC’s funding formulas.
[29] However, as stated in the Decision at paragraph 482, “[m]ore than just funding, there is a need to refocus the policy of the program to respect human rights principles and sound social work practice.” The Panel is concerned to read in INAC`s submissions much of the same type of statements and reasoning that it has seen from the organization in the past. For example, that it is up to each FNCFS Agency to determine how they allocate their funding for such things as prevention and cultural programing (see Decision at paras. 187-189, 311, 313 and 314). This prompts the same question as at the time of the hearing: what if funding is not sufficient to allow for that flexibility? How has INAC determined that each agency has sufficient funding to comply with provincial child welfare standards and is still able to deliver necessary prevention and cultural services? The fact that key items, such as determining funding for remote and small agencies, were deferred to later is reflective of INAC’s old mindset that spurred this complaint. This may imply that INAC is still informed by information and policies that fall within this old mindset and that led to discrimination. Indeed, the Panel identified the challenges faced by small and/or remote agencies and communities across Canada, numerous times in the Decision (see for example paras. 153, 277, 284, 287, 291, 313 and 314). INAC has studied and been aware of these issues for quite some time and, yet, has still not shown it has developed a strategy to address them.
[30] The emphasis on discussions with key partners at tripartite tables is also something this Panel has seen in the evidence and heard from INAC many times throughout these proceedings (see Decision at paras. 138, 139, 191-197, 201 and 213-215). One main example of this in the evidence is the situations in Quebec and British Columbia. Despite many consultations, discussions and joint studies in the past, and even with ready and willing partners prepared to transition those provinces from Directive 20-1 to the EPFA, that transition has yet to occur or was significantly delayed (see Decision at paras. 73-77 and 314).
[31] While the Panel understands meaningful long-term reform and change will be accomplished in consultation with key partners, such as Indigenous peoples across Canada and the provinces, the purpose of immediate relief has been and still is to eliminate as many adverse impacts as possible at this time with the information that we have, the findings in the Decision and with the assistance of experts, FNCFS Agencies and the parties. Immediate relief is a temporary measure to remove as many adverse impacts as possible with the understanding that consultation, studies and data collection will translate into a more comprehensive and effective change of the FNCFS Program.
[32] Comprehensive reform will take some time. The Panel understands this and believes a complete reform will happen. However, immediate relief should be treated as such and not transformed into a long term remedy. While additional funding may address the most discriminatory aspects of INAC’s funding formulas in the short term, the Panel is not currently in a position to determine if this is the case. The Panel acknowledges and appreciates much of the additional information INAC provided in response to its ruling in 2016 CHRT 10; however, even with this additional information, the rationale and/or methodology for allocating the additional funding is not fully explained and the supporting data and/or documentation, including the cost driver study and trend analysis on which INAC claims Budget 2016 investments in the FNCFS Program were developed is incomplete.
[33] That is, the Panel analyzing is not concerned with the specific amount of funding per se, but rather the way in which it is determined. It is the way in which the FNCFS Program is delivered and funding is determined that results in discriminatory effects for First Nations children and families. The Panel’s focus is on whether funding is being determined based on an evaluation of the distinct needs and circumstances of First Nations children and families and their communities. While other key factors come into play in determining whether the amount of funding provided to FNCFS Agencies is adequate to address the needs of the communities they serve, such as remoteness and the extent of travel to meet children and families (which will be addressed later in this ruling), the assumptions about the number of children in care, the number of families in need of services and population levels are the starting point for addressing the discriminatory impacts of INAC’s funding formulas.
[34] Therefore, leaving some of the assumptions and flaws in the funding formulas for long term reform to ensure everyone is consulted may be problematic. As said in the Decision, a piecemeal approach to reform is not an effective way to proceed (see Decision at paras. 185 and 331). While the Panel understands that INAC is determined to reform the entire FNCFS Program and believes it intends do so, it is concerned that deferring immediate action in favour of consultation and reform at a later date will perpetuate the discrimination the FNCFS Program has fostered for the past 15 years. Over that time, despite well documented problems with the program and consultations with its partners and at tripartite tables, INAC’s system has failed to adapt to the needs of First Nations children and families (for example, see Decision at paras.134,138-141, 203, 311, 314-315, 383-394 and 456-467). The Panel understands this is no easy task and that the FNCFS Program cannot be reformed in an instant. However, this does not mean that effective measures cannot be implemented in the meantime. The Panel also agrees with the parties that a one-size-fits-all type of approach is not to be used; this was also addressed in the Decision (see para. 315).
[35] Throughout the Decision, the Panel highlighted the dichotomy between the objectives of the FNCFS Program and INAC’s flawed methods for achieving those objectives (see for example para. 312). Many of those flaws can be corrected at this time, without the need for additional large scale consultation and study. Again, the purpose is to eliminate as many adverse impacts as possible while the system is being reviewed and reformed. Indeed, as indicated by the CCI Parties, INAC was not given the option to defer addressing the assumptions and flaws in its funding formulas to address them solely in the long term. As the service provider, funder and FNCFS Program manager, INAC was given some flexibility in the manner in which to address the findings in the Decision. However, in 2016 CHRT 10, the Panel was clear that the immediate measures underlined and identified in that ruling had to be undertaken now while further long-term reform was being contemplated.
[36] The Panel reiterates its immediate relief orders that all items identified in paragraph 20 of 2016 CHRT 10, and not limited to the items that were underlined, must be remedied immediately, including the adverse effects related to:
· The assumptions about children in care, families in need of services and population levels;
· Remote and/or small agencies;
· Inflation/cost of living and for changing service standards; and
· Salaries and benefits, training, legal costs, insurance premiums, travel, multiple offices, capital infrastructure, culturally appropriate programs and services, and least disruptive measures.
[37] With specific regard to remote agencies, the Panel expects INAC to develop a strategy that takes into account such things as the additional costs associated with travel distances between service centers in terms of similarity to provincial statutory response times and managing impacts on service providers and the children and families they serve; the availability of surrounding services or lack thereof; and, the higher costs and cost of living in northern and/or isolated areas. Remoteness can affect each item in a FNCFS Agency’s budget. The Panel will return to the issue of remoteness below.
[38] Again, the objectives of the FNCFS Program can only be met if INAC’s funding methodology is focused on service levels and the real needs of First Nations children and families, which may vary from one child, family or Nation to another. A focus on the overall amount of funding, through the continued application of flawed funding formulas, does little, if anything, to correct the discrimination found in the Decision. Therefore, the Panel orders INAC to immediately establish the funding assumptions of 6% of children in care and 20% of families in need of services as minimum standards only. INAC has indicated that, even where the number of children in care is below 6%, it will not reduce the amount of funding to such agencies. INAC is ordered to apply the same standard for the assumption of 20% of families in need of services. That is, it will not reduce the amount of funding for FNCFS Agencies that serve less than 20% of families in need of services.
[39] For agencies that have more than 6% of children in care and/or that serve more than 20% of families, INAC is ordered to determine funding for those agencies based on an assessment of the actual levels of children in care and families in need of services. While INAC has indicated that it is allowing upward adjustments to be made for 26 FNCFS Agencies with more than 6% of children in care, there is insufficient information that those upward adjustments are based on an assessment of the actual levels of children in care. Furthermore, INAC has not indicated how it is addressing agencies serving more than 20% of families. As indicated below in its order at the end of this ruling, INAC will be required to report back to the Tribunal confirming that it has implemented this order and clearly demonstrate how it has done so. Again, this order is only meant to provide short-term relief given that a full reform of the FNCFS Program will occur in the long term following further consultation with Indigenous peoples, partners and experts from across Canada.
[40] For the assumptions in the funding formulas based on population levels, INAC is ordered to immediately stop formulaically reducing funding based on arbitrary population thresholds. Again, funding must be provided based on an assessment of the actual service level needs of FNCFS Agencies. As above, INAC will be required to report back to the Tribunal confirming that it has implemented this order and clearly demonstrate how it has done so.
[41] Relatedly, and as addressed in more detail below, the Panel needs more information on how INAC determined its five-year plan for investing in the FNCFS Program and in determining budgets for each FNCFS Agency. The Panel notes that there are already some costing model template documents filed in evidence with the Tribunal and in INAC’s most recent submissions which provide some of this additional information. However, this information still needs to be further detailed to clearly explain how the children’s and families’ needs are being addressed in response to the Panel’s findings and orders.
[42] Furthermore, given INAC’s emphasis on consultation in response to many of the items in this ruling, it would be helpful to the Panel and the other parties if INAC could provide a list of the First Nations, FNCFS Agencies, provincial and territorial authorities, partners, experts or any other persons it has consulted with so far in response to the findings in the Decision, along with its consultation plan moving forward. The list of any past consultations from January to September 2016 should include the agenda and summary of the discussions.
B. Funding for legal fees, capital infrastructure, culturally appropriate services, child service purchase amount and the receipt, assessment and investigation of child protection reports
[43] According to INAC, the issue of funding legal fees, capital infrastructure and culturally appropriate programs and services will be addressed as part of future reform discussions. Addressing some of these issues may require engagement and discussion with First Nations, FNCFS Agencies and provincial/territorial governments. According to INAC, unilateral action in addressing these important issues would be contrary to the federal government's commitment to renew the relationship between Canada and Indigenous peoples. INAC adds that immediate relief investments could be utilized by FNCFS Agencies to respond to individual community needs for culturally based programming and activities.
[44] With respect to the child service purchase amount, INAC indicates that it has increased it from $100 to $175 per child. On the receipt, assessment and investigation of child protection reports, INAC submits that Budget 2016 investments will provide approximately $45 million over the next five years in additional funding to support intake and investigation services, which include activities such as the receipt, assessment and investigation of child reports.
[45] For their part, the CCI Parties do not understand why the issue of funding legal fees, capital infrastructure and culturally appropriate programs and services cannot be addressed at this stage. There are actions that can be taken now to alleviate discrimination that fall entirely within federal jurisdiction and do not depend on corresponding provincial action, including simply adopting and adequately funding applicable provincial/territorial standards regarding these issues. Specifically, the CCI Parties request:
· Each FNCFS Agency be provided $75,000 in fiscal year 2016/2017 to develop and/or update a culturally based vision for safe and healthy children and families, and to begin to develop and/or update culturally based child and family service standards, programs and evaluation mechanisms;
· Legal fees related to children in care, and child welfare investigations and inquiries, be fully reimbursable according to the tariff employed by the federal government for the remuneration of outside counsel; and
· The costs of building repairs, where a FNCFS Agency has received a notice to the effect that repairs must be done to comply with applicable fire, safety and building codes and regulations, or where there is other evidence of non-compliance with applicable fire, safety and building codes and regulations, be fully reimbursable.
[46] For the child service purchase amount, the CCI Parties request that it be increased to $200 per child. For costs related to the receipt, assessment and investigation of child protection reports, the CCI Parties submit that they should be fully reimbursable.
[47] As stated above in the previous section of this ruling, the Panel is not concerned with the specific amount of funding per se, but with the way in which it is determined: that it is based on an evaluation of the distinct needs and circumstances of each individual FNCFS Agency. Pursuant to this reasoning, the Panel has insufficient information at this time to make an order with respect to the request for a specific amount of funding for the development and/or update of culturally based child and family service standards, programs and evaluation mechanisms. The Panel recognizes that leaving it to FNCFS Agencies to use immediate relief investments to address this item does not ensure this need is met, especially in the case of a small agency and/or remote community. However, the Panel will address this request at the upcoming in-person case management meeting.
[48] For legal fees, as indicated in 2016 CHRT 10 and reiterated at paragraph 36 above, the Panel expects INAC to address this issue as part of immediate relief measures while a longer-term solution is being developed. While the Panel understands the benefit of having discussions on funding for legal fees in the long term, this issue should also be addressed immediately. The Panel orders INAC to provide detailed information in its compliance report to clearly demonstrate how it is addressing this issue. This will form part of the upcoming in-person case management meeting.
[49] On the issue of building repairs, the Panel fails to understand why INAC cannot address it now, especially where a FNCFS Agency has received a notice to the effect that repairs must be done to comply with applicable fire, safety and building codes and regulations, or where there is other evidence of non-compliance with applicable fire, safety and building codes and regulations. Again, while the Panel understands the benefit of having discussions on capital infrastructure in the long term, this urgent issue should also be addressed immediately. The Panel orders INAC to provide detailed information in its compliance report to clearly demonstrate how it is addressing this issue. This will form part of the upcoming in-person case management meeting.
[50] Finally, with regard to the issues of the child service purchase amount and the costs related to the receipt, assessment and investigation of child protection reports, again, the Panel requires further information on how INAC’s funding allotment for this item meets the needs of individual FNCFS Agencies. The Panel orders INAC to provide detailed information in its compliance report to clearly demonstrate how it determined funding for such costs. This will form part of the upcoming in-person case management meeting.
C. Adjustments for inflation
[51] Another significant finding in the Decision was INAC’s 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.
[52] INAC indicates that the investments in Budget 2016 include an annual adjustment to address future cost drivers and growth. The cost drivers that account for average yearly growth include: maintenance growth, agency operating costs (e.g. rent, transportation, supplies and equipment), salaries and increases in ratios of children in care. According to INAC, the annual amount for growth and cost drivers was calculated at approximately 3% of program investments and it is providing $159 million in additional funding over the next five years to address these issues.
[53] The CCI Parties submit that INAC has failed to detail how much it is allocating for each “growth and future cost driver” and