The federal government is urging the Canadian Human Rights Tribunal to dismiss a leading First Nations child advocate’s concerns about a large backlog of unprocessed Jordan’s Principle requests.
In Ottawa this week, a federal lawyer tried to refute allegations that Canada is mismanaging the program that ensures First Nations kids have timely access to essential health products and services.
“This is not a government that is ignoring its obligation under these orders,” said Justice Canada lawyer Dayna Anderson.
“Canada has taken extraordinary steps at extraordinary costs to ensure that it’s meeting its obligations to First Nations children.”
The First Nations Child and Family Caring Society disagrees. The society sparked the hearing through a non-compliance motion alleging Canada’s repeated failure to process these applications in a timely way puts kids at risk.
“We know from Canada’s own estimates that there’s 40,000 requests at a minimum [and] up to 80,000 requests that they haven’t even opened or determined,” said Cindy Blackstock, the society’s executive director, in an interview.
“We are hearing from some of those people who are calling out in desperation to us. We’ve seen children die waiting for those kinds of determinations and experiencing other serious harms.”
The motion is the latest legal skirmish in a 17-year-old human rights complaint about the chronic underfunding of First Nations child and family services, a complaint the tribunal upheld in 2016 ruling.
Blackstock’s latest motion alleges Canada is violating past tribunal orders requiring Ottawa correct the underfunding and properly implement Jordan’s Principle.
The aim of Jordan’s Principle is to reduce delays, helping First Nations kids to access health care, social and educational supports when they need them, with questions about which jurisdiction pays for them to be worked out afterward.
Canada got its chance to refute Blackstock’s claim on Tuesday, with Anderson saying the Caring Society’s “concerns about backlogs are absolutely valid, but they are not public administration experts,” while the society’s preferred approach is untested.
“In our view, it’s time now to allow Canada to manage its own operations, to allow us to engage with First Nations, and to not have the Caring Society’s overly complex approach, frankly in some cases, imposed upon us.”
Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society, speaks with the CBC’s Gloria Macarenko about the Assembly of First Nations’ historic $47.8 billion child and family welfare agreement and the issues she has with it.
Canada filed a counter-motion arguing the backlog problems and delays can be solved by extending, and in some cases removing, mandatory timelines to respond to Jordan’s Principle requests.
Canada ushered in an enormous expansion of the program over eight years, going from spending little cash on very few approvals to billions of dollars and millions of products going out the door quickly, Anderson argued.
Outside the hearing room, Blackstock told CBC Indigenous she rejected this line of argument, saying history shows Canada can’t be trusted to do the right thing on its own. There is also no evidence any First Nations organizations actually support Canada’s position, she added.
“Keeping your fingers crossed when it comes to Canada’s behaviour towards First Nations children is absolutely unacceptable,” said Blackstock.
“We’ve seen from their past behaviour that when that is done and they’re not accountable before the tribunal, that serious harms come to First Nations children.”
AFN urges hands-off approach
Meanwhile, the Assembly of First Nations (AFN), representing more than 600 chiefs countrywide and a co-complainant in this case, is hedging. AFN lawyer Stuart Wuttke told the tribunal on Wednesday that the AFN disagrees with both the Caring Society and Canada.
While the AFN shares Blackstock’s concerns, Wuttke urged the tribunal to take a cautious, hands-off approach given how deep the parties are in negotiations on long-term child welfare reform. While the AFN opposes Canada’s bid to extend the timelines, Wuttke echoed some of Canada’s concerns.
“We are concerned that as Jordan’s Principle increases, and people are accessing Jordan’s Principle for services that they can easily get from another government program, that it will drive up the numbers,” he said.
“At some point it could be unmanageable, and we’re already seeing that with respect to the high volume and Canada’s inability to process applications.”
Assembly of First Nations National Chief Cindy Woodhouse Nepinak tells Power & Politics the $47.8 billion settlement agreement is an opportunity ‘to do some real work over the next decade’ to reform First Nations child and family services.
Since 2007, the human rights complaint has yielded major results, snowballing into a $23.4-billion compensation deal and a proposed $47.8-billion deal to reform the First Nations child and family services program. But Jordan’s Principle is not covered by the reform deal and remains a sticking point, with the AFN and Caring Society split on strategy.
Advocacy organizations Chiefs of Ontario and Nishnawbe Aski Nation, which are also involved in the reform talks and the tribunal hearing, largely echoed the AFN’s position, while the Caring Society has the endorsement of the First Nations Leadership Council, representing 204 chiefs in B.C., a recent intervener.
The hearing concludes Thursday.