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
2022-03-24
Neutral citation
2022 CHRT 8
File number(s)
T1340/7008
Decision-maker(s)
Marchildon, Sophie; Lustig, Edward P.
Decision type
Ruling
Grounds
National or Ethnic Origin
Race
Summary:
First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2022 CHRT 8
This case is about systemic racial discrimination against First Nations children. In an earlier decision (2016 CHRT 2, the Merit Decision), the Tribunal found that Indigenous Services Canada underfunded child and family services for First Nations children, including prevention services. Prevention services support the principle of “least disruptive measures” to keep children in their homes, families and communities as much as possible. This principle recognizes the importance of keeping the bond between parents and children. It ensures that everything is done to avoid removing a child from home. The underfunding and lack of services led to First Nations children being removed from their homes, families and communities and placed in care as a first resort rather than as a last resort. In contrast, other children usually benefited from prevention services. This is systemic racial discrimination.
The Tribunal ordered a complete reform of child and family services for First Nations children. It also ordered Canada to give full effect to Jordan’s Principle to ensure that all First Nations children receive the services that they need when they need them. The Tribunal is supervising this reform and releases additional rulings as needed. Many rulings have provided additional direction for systemic reforms. Other rulings addressed compensation for First Nation children and caregivers affected by the systemic discrimination. However, the Tribunal encouraged the parties to settle outstanding issues.
In the current decision, 2022 CHRT 8, the Tribunal approved consent order requests to reform the program and significantly increase funding. Reforms to the First Nations Child and Family Services program include providing services up to age 25 for youth aging out of care. The evidence shows that youth aging out of care are at higher risks to experience homelessness, poverty, human trafficking and other risks.
The Tribunal also found that eliminating the mass removal of children is achievable when a real shift is made from reactive services that bring children into care to preventive services. This is even more effective when prevention services are developed and delivered by the First Nations children’s respective First Nations communities who will benefit from greater prevention resources up-front as of April 1, 2022. The evidence demonstrates that some First Nations communities who offered their own prevention programming reported that no children were taken into care.
Canada will also support and fund additional research including research on Jordan’s Principle to support long-term reform. Canada will consult with the Parties and implement mandatory cultural competency training and performance commitments for Indigenous Services Canada employees.
Canada will also consult with the Parties and establish an expert advisory committee to develop and oversee the implementation of an evidence-informed plan to prevent the recurrence of discrimination.
As a result of these changes, the Tribunal agreed to establish March 31, 2022 as the end date for compensation for removed First Nations children and their parents/caregiving grandparents.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2022 CHRT
8
Date:
March 24, 2022
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
Contents
I. Context 1
II. Requested orders on consent 6
III. Grounds for the motion and Tribunal findings 9
A. Grounds for the motion 9
B. Tribunal findings 14
(i) Performance Informed Budgeting 15
(ii) Fund Actual Cost Post-Majority Care 18
(iii) High Needs Jordan’s Principle Recipients past the Age of Majority 25
(iv) Fund Needs Assessment and Long Term Funding Research 29
(v) Timelines for Supporting Research Data Requests 33
(vi) ISC Cultural Competency and Anti-Discrimination Plan 33
(vii) Amendment to 2018 CHRT 4 39
(viii) Amendment to 2021 CHRT 12 39
(ix) Establish the End Date for Compensation 48
IV. Legal Framework 53
V. Final remarks 60
VI. Panel Chair’s remarks 61
VII. Orders 61
VIII. Retention of Jurisdiction 63
I. Context
[1] This ruling concerns a March 4, 2022, consent order request made by the parties to these proceedings to expand Jordan’s Principle services orders to youth from 18 to 25 years of age and for the application of the FNCFS program to youth ages 18 to 25 that age out of care. This consent order also provides for increased funding for prevention services for children, youth and families. This consent order request addresses a specific timeline for the implementation of the above and to set March 31, 2022 as the end date for eligibility for compensation for the victims of the discrimination found by the Tribunal. Finally, the parties made a number of other consent order requests. This will be further detailed below.
[2] In 2016, the Tribunal released its 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 [Merit Decision] and found that this case is about children and how the past and current child welfare practices in First Nations communities on reserves, across Canada, have impacted and continue to impact First Nations children, their families and their communities. The Tribunal found that Canada racially discriminated against First Nations children on reserve and in the Yukon in a systemic way not only by underfunding the FNCFS Program but also in the manner that it designed, managed and controlled it. One of the worst harms found by the Tribunal was the FNCFS Program creating incentives to remove First Nations from their homes, families and communities. Another major harm to First Nations children was that zero cases were approved under Jordan’s Principle given the narrow interpretation and restrictive eligibility criteria developed by Canada. The Tribunal found that more than just funding, there is a need to refocus the policy of the program to respect human rights principles and sound social work practice in the best interest of children. The Tribunal ordered Canada to cease the discriminatory practice, take measures to redress and prevent it from reoccurring, and reform the FNCFS Program and the 1965 Agreement in Ontario to reflect the findings in the Merit Decision. The Tribunal determined it would proceed in phases for immediate, mid-term and long-term relief so as to allow immediate change followed by adjustments and finally, sustainable long-term relief informed by data collection, new studies and best practices as identified by First Nations experts, the specific needs of First Nations communities and of First Nations Agencies, the National Advisory Committee on child and family services reform and the parties.
[3] The Tribunal also ordered Canada to cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan's principle. Jordan’s Principle orders and the substantive equality goal were further detailed in subsequent rulings. In 2020 CHRT 20 the Tribunal stated that:
[89] Jordan’s Principle is a human rights principle grounded in substantive equality. The criterion included in the Tribunal’s definition in 2017 CHRT 14 of providing services “above normative standard” furthers substantive equality for First Nations children in focusing on their specific needs which includes accounting for intergenerational trauma and other important considerations resulting from the discrimination found in the Merit Decision and other disadvantages such as historical disadvantage they may face. The definition and orders account for First Nations’ specific needs and unique circumstances. Jordan’s Principle is meant to meet Canada’s positive domestic and international obligations towards First Nations children under the CHRA, the Charter, the Convention on the Rights of the Child and the UNDRIP to name a few. Moreover, the Panel relying on the evidentiary record found that it is the most expeditious mechanism currently in place to start eliminating discrimination found in this case and experienced by First Nations children while the National Program is being reformed. Moreover, this especially given its substantive equality objective which also accounts for intersectionality aspects of the discrimination in all government services affecting First Nations children and families. Substantive equality is both a right and a remedy in this case: a right that is owed to First Nations children as a constant and a sustainable remedy to address the discrimination and prevent its reoccurrence. This falls well within the scope of this claim.
[4] Consequently, the Tribunal determined all the above need to be adequately funded. This means in a meaningful and sustainable manner so as to eliminate the systemic discrimination and prevent it from reoccurring.
[5] Furthermore, recently, the Quebec Court of Appeal in Renvoi à la Cour d'appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185, recognized the Tribunal’s concern that funding only formed part of the Preamble and did not create an obligation for sustainable funding under An Act Respecting First Nations, Inuit and Metis children, youth and families, SC 2019, c 24 (see paras. 271-272, 274). The Court at para. 562 states: “Ainsi, une nouvelle approche s’impose, ayant pour piliers la collaboration fédérale‑provinciale et la prise en compte des peuples autochtones en tant qu’acteurs politiques et producteurs de droit. Cette approche doit prévaloir tant pour ce qui est des initiatives législatives que de leur mise en œuvre, y compris leur financement” (emphasis ours).
[6] The Panel is pleased with this helpful finding that will guide governments in the future. Moreover, as part of this motion, in her affidavit dated March 4, 2022, Dr. Cindy Blackstock asserts that:
25. [she] is concerned that First Nations affirming their jurisdiction under An Act Respecting First Nations, Métis and Inuit children, youth and families may not benefit from the Tribunal orders, including this consent order. Canada has taken the position, and has repeatedly advised her, that it does not have obligations under the Tribunal’s orders to First Nations affirming their jurisdiction under An Act Respecting First Nations, Métis and Inuit children, youth and families. Dr. Blackstock affirms the Agreement in Principle reached on December 31, 2021(AIP), also excludes such First Nations. However, the AIP does state that these First Nations will not receive less funding than they would have received under the Reformed CFS Funding Approach for the services in question.
[7] Dr. Blackstock adds that:
25. … Respecting the right of First Nations to be self-determining, I believe that First Nations ought to have the right to make a free, prior and informed choice about which funding approaches, policies and practices, including those arising from the Tribunal proceedings, ought to apply.
[8] The Tribunal agrees and is satisfied the AIP ensures First Nations affirming their jurisdiction under An Act Respecting First Nations, Métis and Inuit children, youth and families will not receive less funding than they would have received under the reformed First Nations Child and Family Services [FNCFS] Funding Approach for the services in question.
[9] This is significant to ensure that First Nations do not have to face the unacceptable choice between adequate and sustainable funding under the reformed FNCFS Program or the exercise of their inherent right to self-government to develop and offer their own child and family services with the uncertainty of adequate sustainable funding especially upon the date of renewal of the agreements between the First Nation and Canada.
[10] The Panel agrees with Ms. Stephanie Wellman from the Assembly of First Nations (AFN) that the focus of this case is not on the Act Respecting First Nations, Métis and Inuit children, youth and families and that “[i]t is not for Canada, the AFN, this Tribunal or any other party to these proceedings to speak to the manner in which self-determining peoples opt to exercise their jurisdiction.” (March 7, 2022 Affidavit, para. 80).
[11] This Tribunal’s case is also about children and families who are also rights holders and deserve to have their human rights respected. The Tribunal’s role is to eliminate the discrimination found and prevent the same or similar practices to reoccur.
[12] The Tribunal cannot force First Nations that are not part of these proceedings to do anything. However, the Tribunal has jurisdiction over Canada as per the Canadian Human Rights Act, RSC 1985 c H-6 [CHRA] to ensure that discriminatory practices adversely impacting First Nations children and families are eliminated and do not resurface in a new form in the long-term.
[13] The Tribunal made findings in the Merit Decision where Canada had concluded a funding agreement with the Attawapiskat First Nation:
[122] This finding is similar to the one made by the Federal Court in Attawapiskat First Nation v. Canada, 2012 FC 948. In discussing the nature of funding agreements similar to the ones at issue in the present Complaint, the Federal Court stated at paragraph 59:
the [Attawapiskat First Nation] relies on funding from the government through the [Comprehensive Funding Agreement] to provide essential services to its members and as a result, the [Comprehensive Funding Agreement] is essentially an adhesion contract imposed on the [Attawapiskat First Nation] as a condition of receiving funding despite the fact that the [Attawapiskat First Nation] consents to the [Comprehensive Funding Agreement]. There is no evidence of real negotiation. The power imbalance between government and this band dependent for its sustenance on the [Comprehensive Funding Agreement] confirms the public nature and adhesion quality of the [Comprehensive Funding Agreement].
(emphasis added).
[14] When the Tribunal expressed its concerns about sustainable and adequate funding not being guaranteed under the Act Respecting First Nations, Métis and Inuit children, youth and families, it did so with the above in mind and not in any way to hinder First Nations’ inherent rights that this Panel has recognized on multiple occasions.
[15] The Tribunal’s focus is on Canada not repeating its past discriminatory practices or creating new ones that would harm First Nations children, families and Nations.
[16] Finally on this point, the Tribunal is pleased to hear that the AFN sought, and achieved, recognition within the AIP that such First Nations exercising their jurisdiction would receive no less than the funding provided under the eventual reformed FNCFS Program. In her March 4, 2022, affidavit Dr. Valerie Gideon, Associate Deputy Minister of ISC, asserts that:
15. [t]he Agreement-in-Principle notes that First Nations that have chosen to avail themselves of the framework offered by An Act respecting First Nations, Inuit and Métis children, youth and families … to facilitate the exercise of their jurisdiction will “not receive less funding than they would have received under the reformed FNCFS Funding Approach for the services for which they have assumed jurisdiction.” ISC [Indigenous Service Canada] will ensure that enhancements to the FNCFS Program, including those sought through this motion, are made available to those First Nations retroactive to April 1, 2022.
[17] Dr. Valerie Gideon further affirms that:
16. … ISC and the Assembly of First Nations will discuss how to adjust the [Act respecting First Nations, Inuit and Métis children, youth and families’] interim funding framework to reflect these enhancements. By April 1, ISC will also have reached out to the two Indigenous Governing Bodies who have signed or are on the cusp of signing coordination and fiscal relationship agreements. It will propose to discuss the enhancements available to those two entities. Regardless of the time required to have those discussions, ISC will make retroactive to April 1, 2022, any adjustments to the Indigenous Governing Bodies’ agreements.
[18] This is extremely positive news and with the understanding that this commitment is reflective of what will also be included in the Final Settlement agreement for long-term reform addresses the Tribunal’s concerns on this point.
II. Requested orders on consent
[19] In particular, this consent motion is for the following orders, as agreed to by the parties on December 31, 2021:
1. Reform to the First Nations Child and Family Services Program (“FNCFS Program”) shall reflect a performance-informed budgeting approach, with consideration of the well-being indicators defined in the Institute for Fiscal Studies and Democracy (“IFSD”) Measuring to Thrive framework.
2. Canada shall fund at actual cost post-majority care to youth ageing out of care and young adults who were formerly in care up to and including the age of 25 across all provinces and territories (“post-majority care”). This funding shall be accessible through the actuals process for maintenance and protection reimbursed at the actual cost to the First Nations authorized post-majority service provider and shall be available until March 31, 2023. After this time, funding for post-majority care will be made available through the reformed FNCFS Program’s funding formulas, policies, procedures and agreements in an evidence- informed way agreed to by the Parties.
3. Given Canada’s commitment to non-discrimination and substantive equality, Canada shall assess the resources required to provide assistance to families and/or young adults in identifying supports for needed services of high needs Jordan’s Principle recipients past the age of majority (as defined in the applicable First Nations or provincial/territorial statute). Canada shall consult with the Parties within sixty (60) days of the order to discuss the scope and scale of these transition supports and how such funding capacity can be incorporated into the Jordan’s Principle long-term reform.
4. Canada shall fund the following research through the Institute for Fiscal Studies and Democracy (“IFSD”):
a. the IFSD Phase 3 Proposal (including stage 5): Implementing a well-being focused approach to First Nations child and family services through performance budgeting, dated July 22, 2021;
b. the IFSD needs assessment regarding the real needs of First Nations not served by an agency to identify their needs as they relate to prevention, operations and to further identify remedies to gaps that need to be closed as part of long-term reform (the “Non-Agency First Nations Needs Assessment”);
c. the IFSD assessment regarding available data on the use of Jordan’s Principle to inform a future cost assessment of Canada’s implementation of Jordan’s Principle and program reform (the “Jordan’s Principle Data Needs Assessment”); and
d. upon completion of the Jordan’s Principle Data Assessment, the IFSD needs assessment regarding a long-term funding approach for Jordan’s Principle, including but not limited to identifying and addressing formal equality gaps, in keeping with the Tribunal’s rulings, including but not limited to 2016 CHRT 2, 2017 CHRT 35, 2020 CHRT 20 and 2020 CHRT 36 (the “Jordan’s Principle Long Term Funding Approach Research”).
5. Canada shall fulfil all IFSD data requests within ten (10) business days or propose reasonable alternative timelines required to protect privacy.
6. a. Canada shall consult with the Parties and implement the mandatory cultural competency training and performance commitments for employees within Indigenous Services Canada. b. Canada shall also work with the Parties to establish an expert advisory committee within sixty (60) days of this order to develop and oversee the implementation of an evidence- informed work plan to prevent the recurrence of discrimination. Canada shall take reasonable measures to begin implementing the work plan.
7. Pursuant to paragraph 413(3) of 2018 CHRT 4, adding the following paragraph to the Tribunal’s order in 2018 CHRT 4:
[421.1]: In amendment to paragraphs 410, 411, 420 and 421 Canada shall, as of April 1, 2022, fund prevention/least disruptive measures at $2500 per person resident on reserve and in the Yukon in total prevention funding in advance of the complete reform of the FNCFS Program funding formulas, policies, procedures and agreements. Canada shall fund the $2500 on an ongoing basis adjusted annually based on inflation and population until the reformed FNCFS Program is fully implemented. This amount will provide a baseline for the prevention element in the reformed FNCFS Program pursuant to paragraph 1 of the Consent Order. Flexibility will be provided on the implementation for First Nations governments and FNCFS agencies not ready on the start date, which will require more time due to exceptional circumstances that will be further defined with the parties. Funds will be directed to the First Nations and/or First Nations child and family service providers(s) responsible for the delivery of prevention services. These funds shall be eligible to be carried forward by the First Nation and/or First Nations child and family service providers(s).
8. Pursuant to 2021 CHRT 12 at paragraph 42(5), adding the following paragraph to the Tribunal’s order in 2021 CHRT 12:
[42.1] In amendment to paragraph 42(1), Canada shall, as of April 1, 2022, fund prevention/least disruptive measures for non-Agency First Nations (as defined in 2021 CHRT 12) at $2500 per person resident on reserve and in the Yukon, on the same terms as outlined in 2018 CHRT 4 at paragraph 421.1 with respect to FNCFS Agencies.
9. Pursuant to 2019 CHRT 39 at paragraphs 245, 248, 249 and 254, establish March 31, 2022, as the end date for compensation for removed First Nations children and their parents/caregiving grandparents.
[20] The wording for the seventh proposed order was modified in response to questions raised by the Panel. The Panel believed that given the procedural history in this case, the requested order should be clarified, to avoid future disagreements between the parties on the interpretation of the order. In particular, on March 11, 2022, the Tribunal wrote to the parties seeking clarification. The Panel’s main question related to the $2,500 funding per person resident on reserve and in the Yukon for prevention services in advance of the complete reform of the FNCFS Program funding formulas, policies, procedures and agreements.
[21] The Panel requested clarity in the case where reform is delayed and the prevention funds that are carried over have all been used. The Panel believed this eventuality should be reflected in the terms of the requested order to ensure that First Nations communities and First Nations agencies would have sufficient prevention funds while reform is completed.
[22] In response to the Panel’s questions, the Parties agreed to add the following wording to the requested order:
Canada shall fund the $2500 on an ongoing basis adjusted annually based on inflation and population until the reformed FNCFS Program is fully implemented. This amount will provide a baseline for the prevention element in the reformed FNCFS Program pursuant to paragraph 1 of the Consent Order. Flexibility will be provided on the implementation for First Nations governments and FNCFS agencies not ready on the start date, which will require more time due to exceptional circumstances that will be further defined with the parties.
[23] The Panel considered this amended wording proposed by the Parties in its analysis.
III. Grounds for the motion and Tribunal findings
A. Grounds for the motion
[24] The Caring Society, the AFN and Canada made joint submissions on the grounds for this motion and filed separate affidavits along with untested evidence in support of this motion. The Chiefs of Ontario (COO), the Nishnawbe Aski Nation (NAN), the Commission and Amnesty International filed separate letters with the Tribunal indicating their consent to the motion. The Tribunal has considered all the materials and submissions filed by the parties. In the interest of conciseness, only some will be reproduced below:
11. As part of the Actuals Decision [2018 CHRT 4], the Tribunal ordered Canada, in consultation with the Parties, to undertake a cost analysis of the real needs of FNCFS Agencies, including small agencies, and to guide a data collection process (paragraphs 408, 418 and 421). The Caring Society and the AFN requested that the Institute of Fiscal Studies and Democracy (the “IFSD”) take on the research outlined by the Tribunal, with the AFN acting as the project contract holder. The National Advisory Committee on First Nations Child and Family Services (the “NAC”) provided directional and strategic support.
12. In April 2018, the IFSD began its work on the following: (a) developing reliable data collection, analysis, and reporting methodology for analyzing the needs of FNCFS Agencies, in alignment with the Tribunal’s rulings; (b) providing technical expertise to analyze agency needs, providing strategic advice on how best to monitor and respond to actual agency needs from fiscal and governance perspectives; and (c) analyzing the needs assessment completed by FNCFS Agencies and communities.
13. On December 15, 2018, the IFSD released its first report, Enabling First Nations Children to Thrive (the “IFSD Phase One Report”). The IFSD Phase One Report defined and outlined the existing funding gaps in the FNCFS Program and the ongoing hardships facing First Nations children, youth, and their families: gaps in funding for prevention, poverty, information technology, and capital were identified as key components to the ongoing disparity.
14. Following the release of the IFSD Phase One Report, the Caring Society and the AFN asked the IFSD to define a funding approach and performance measurement framework for First Nations child and family services, with funding support from Indigenous Services Canada. The purpose of this second phase was to present a funding structure; a means of developing evidence to understand the well-being of children, families, and communities; and a range of scenarios to cost the proposed approach. Canada agreed to fund this second phase on May 13, 2019.
15. On July 31, 2020, IFSD released its second report, Funding First Nations child and family services (FNCFS): A performance budget approach to well-being (the “IFSD Phase Two Report”). Based on 2019/2020 fiscal data, the IFSD Phase Two Report proposes a performance framework called “Measuring to Thrive” and a needs-based block funding approach based on indicators of well-being, bottom-up budgeting complemented by need and performance components, as well as control exercised by First Nations in the development and delivery of child well-being services.
16. The IFSD Phase Two Report outlines a funding approach designed as a block transferred budget with components addressing gaps in need, including prevention, poverty, geography, information technology and capital, with other supplements for the shift to a result-focused approach that addresses the real needs of First Nations children, youth, families, and First Nations. Among the various components costed by the IFSD, the funding approach recommends that prevention be funded (at the upper end) at $2500 per capita, based on community population, automatically adjusted based on inflation and population.
17. On July 22, 2021, the IFSD submitted its response to the AFN’s request for proposal for Research for the Modeling of a Wellbeing Focused Approach for First Nations Child and Family Services Through Performance Budgeting (“IFSD Phase Three”). IFSD Phase Three is focused on modeling the funding approach outlined in the IFSD Phase Two Report in order to build capacity and an enhanced bottom-up planning framework for FNCFS Agencies and First Nations, while building confidence among stakeholders. Canada agreed to fund the entire proposal on December 31, 2021.
18. On April 2, 2019, the AFN proffered evidence regarding the many challenges youth in care face once they age out of care. On November 22, 2019, Youth in Care Canada released Justice, Equity and Culture: the First-Ever YICC Gathering of First Nations Youth Advisors (the “2019 Youth in Care Report”), which was tendered in evidence and referenced in 2020 CHRT 7 paras. 30-32. In December 2021, Youth in Care Canada released Children Back, Land Back: A Follow-Up Report for First Nations Youth in Care Advisors (the “2021 Youth in Care Report”). The evidence, including evidence put forward during the hearing on the merits, underscores the need for young people to be involved in matters affecting them on an ongoing basis as well as services and supports to assist youth in care and former youth in care as they transition to adulthood.
ISC’s inclusion of post-majority care in the FNCFS Program
19. Prior to March 2020, First Nations children were no longer eligible for services pursuant to the FNCFS Program when they reached the age of majority in their province or territory of residence.
20. On March 27, 2020, following discussions at the Consultation Committee on Child Welfare (“CCCW”), Canada announced that, as an exceptional measure in response to the COVID-19 pandemic, it would temporarily keep supports in place for First Nations young adults ageing out of care after reaching the age of majority to avoid discharging them from care during the pandemic.
21. In Budget 2021, Canada announced that it would continue to fund post-majority supports under the FNCFS Program for First Nations young adults for up to two years beyond the point the individual is no longer eligible for child and family services, either because they have reached the age of majority, or are no longer eligible for extended care services as per the provincial or Yukon legislation. The Tribunal has found that many of these young people were removed as children unnecessarily due to Canada’s discrimination as found by the Tribunal.
22. The evidence filed in support of this motion (some of which is already before the Tribunal) indicates that First Nations youth ageing out of care who do not have access to post-majority supports may have higher needs owing to the multi-generational trauma of residential schools and hardships arising from Canada’s discrimination found by the Tribunal. Youth in care and former youth in care are a marginalized group with unique needs that require specific supports.
Canada’s Commitments to Immediate Measures that Redress the Ongoing Discrimination
23. Canada acknowledges that it has the onus to redress the discrimination identified by the Tribunal and prevent its recurrence. This consent order is the first step on the path to the long-term measures ordered by the Tribunal.
24. Starting in November 2021, the Parties engaged in settlement discussions regarding the long-term reform of the FNCFS Program and Jordan’s Principle. The Parties were assisted by the Honourable Murray Sinclair.
25. On December 31, 2021, the Parties announced that they had reached an Agreement-in-Principle on long-term reform. As part of that Agreement-in-Principle, the Parties committed to reforming the FNCFS Program by March 31, 2023, as well as improving compliance with and reforming Jordan’s Principle. Also, in the Agreement-in-Principle, the parties have agreed that the Reformed CFS Funding Approach will accommodate First Nations and FNCFS service providers experiencing exceptional circumstances, to be defined in the Final Settlement Agreement, which may require a longer transition to the Reformed CFS.
26. In addition, the terms of the consent order sought in this consent motion (see paras 1-9 under “orders sought”) were annexed to the Agreement-in-Principle. Following the execution of the Agreement-in-Principle, the Caring Society, the AFN, and Canada agreed to seek this order as soon as possible.
27. While the research and community consultation are not at a sufficient stage for complete reform of the FNCFS Program to be implemented, the funding of prevention at $2,500 per capita will provide families with supports they need and deserve to begin addressing the structural risk factors that contribute to the over-representation of First Nations children in care. Prevention funding at $2,500 per capita will also provide First Nations and FNCFS Agencies with greater resources “up front” (as opposed to through the application-based actuals process) and will provide greater funding to First Nations without FNCFS Agencies (currently receiving $947 per capita, subject to inflation adjustments, pursuant to 2021 CHRT 12).
28. With respect to Jordan’s Principle, the evidence demonstrates that for some high needs First Nations youth and young adults who reach the age of majority, the loss of access to Jordan’s Principle is detrimental to them and their families. Canada has agreed to assess the resources required to aid families and/or young adults in identifying supports for needed services for these recipients. Canada shall consult with the Parties within sixty (60) days of the order to discuss the scope and scale of these transition supports and how such funding capacity can be incorporated into the Jordan’s Principle long-term reform.
29. Canada acknowledges that Indigenous Services Canada (“ISC”) requires transformation in order to address the “old mindset” repeatedly identified by the Tribunal, which contributed to the discrimination under the FNCFS Program and Jordan’s Principle. In response to 2016 CHRT 16 at para 29, 2018 CHRT 4 at para 154, 2019 CHRT 7 at para 63, 2020 CHRT 15 at para 84, and 2021 CHRT 41 at para 341, Canada has agreed to consult with the Parties and continue the implementation of mandatory cultural competency training and performance commitments for employees within ISC, to complete work begun through the CCCW. In addition, Canada has agreed to work with the Parties to establish an expert advisory committee within sixty (60) days of the order to develop and oversee the implementation of an evidence-informed work plan to prevent the recurrence of discrimination. Canada has further agreed to take reasonable measures to begin implementing the work plan.
30. Finally, the Parties acknowledge that some questions remain unanswered regarding the best path forward for long-term reform. This is particularly the case with respect to modeling the IFSD Phase Two Report, assessing the real needs of First Nations without FNCFS Agencies, formulating a better long-term approach to Jordan’s Principle and reforming ISC to prevent the discrimination from recurring. Canada has agreed to provide funding and data to enable IFSD to conduct the following research to assist the Parties in developing long-term solutions to address the findings of the Tribunal:
a. IFSD Phase Three;
b. the Non-Agency First Nations Needs Assessment;
c. the Jordan’s Principle Data Assessment; and
d. the Jordan’s Principle Needs Assessment.
31. To ensure that the work undertaken by the IFSD can be completed in a timely manner, Canada is agreeing to fulfill all IFSD data requests within ten (10) business days or propose reasonable alternative timelines required to protect privacy.
Based on Canada’s Commitments, the End Date for Compensation Under the FNCFS Program is Justified
32. Based on Canada’s consent to the orders outlined herein, the Parties are of the view that the factual basis on which the Compensation Entitlement Decision was made will significantly change as of April 1, 2022, due to increased amounts of prevention funding being made available to communities.
33. In addition, the provision of post-majority supports to young people ageing out of care or young adults who were in care duly considers the multi-generational trauma flowing from Canada’s discrimination and enables a more holistic child welfare approach. Young people in care and young adults from care have long advocated for post-majority supports and this action responds to their advocacy.
34. As a result, the Parties request that the Tribunal set March 31, 2022, as the end date for eligibility for compensation under the Compensation Entitlement Decision for the particular victims impacted by the discrimination in the FNCFS Program identified by the Tribunal in 2016 CHRT 2 and subsequent decisions.
35. This amendment to the Compensation Entitlement Decision will resolve one of the issues before the Federal Court of Appeal in Canada’s appeal from the Federal Court’s decision upholding the Compensation Entitlement Decision.
36. Should the Parties to the Federal Court class proceedings in Federal Court File Nos. T-402-19 and T-1751-21 reach a settlement agreement, Canada and the Assembly of First Nations will make submissions to the Tribunal regarding the impact of that settlement agreement with respect to the Tribunal’s Compensation Entitlement Decision and Compensation Payment Decision and any relief requested from the Tribunal in that regard.
37. The Parties further rely on:
(a) subsection 91(24) of the Constitution Act, 1867;
(b) Section 53(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6;
(c) Rules 1(6), 3(1), and Rule 3(2) of this Tribunal’s Rules of Procedure (Proceedings prior to July 11, 2021;
(d) the Tribunal’s implied jurisdiction to control its own processes; and
(e) such further and other grounds as counsel may advise.
B. Tribunal findings
[25] Some of the evidence such as the affidavits and some attachments were untested, nevertheless the Tribunal may accept such evidence given section 50(3)(c) of the CHRA:
subject to subsections (4) and (5), authorizes the Tribunal to receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law.
[26] However, while the evidence can be accepted under this section, the probative value will be appreciated by the Panel in weighing the evidence.
[27] Furthermore, some of the evidence was already tested at the hearing on the merits or in subsequent proceedings.
[28] The Panel has weighed the evidence considering the above.
[29] Upon consideration, the Panel agrees with the parties’ order requests and will address them now in turn.
(i) Performance Informed Budgeting
Order request #1. Reform to the First Nations Child and Family Services Program (“FNCFS Program”) shall reflect a performance-informed budgeting approach, with consideration of the well-being indicators defined in the Institute for Fiscal Studies and Democracy (“IFSD”) Measuring to Thrive framework.
[30] The AFN insisted that discussions on compensation also include a separate track on long-term reform. The Panel believes this was instrumental and necessary. Moreover, it is in line with the Panel’s approach