CHRT finds the Canadian government is racially discriminating against 163,000 First Nations children

In a landmark ruling released on January 26, 2016, the Canadian Human Rights Tribunal found that the Canadian government is racially discriminating against 163,000 First Nations children and their families by providing flawed and inequitable child welfare services (“FNCFS Program”) and failing to implement Jordan’s Principle to ensure equitable access to government services available to other children.

In 2007, the Assembly of First Nations and the Caring Society filed a human rights complaint against the Federal government, alleging that Canada’s failure to provide equitable and culturally based child welfare services to First Nations children on-reserve amounts to discrimination on the basis of race and ethnic origin. After several unsuccessful efforts by the Federal government to have the case dismissed on legal technicalities, a hearing on the complaint began on February 25, 2013 at the Canadian Human Rights Tribunal and was completed on October 24, 2014.

Findings of Discrimination

On January 26, 2016, the Canadian Human Rights Tribunal (Tribunal) issued its decision regarding a complaint filed in February 2007 by the First Nations Child and Family Caring Society (Caring Society) and the Assembly of First Nations (AFN), alleging that the Department of Indian and Northern Affairs’ (INAC) provision of First Nations Child and Family Services (FNCFS) and implementation of Jordan’s Principle is flawed, inequitable and thus discriminatory under the Canadian Human Rights Act.

The Tribunal found that the FNCFS Program denied services to many First Nations children and families living on-reserve and resulted in adverse impacts for them because it was based on flawed assumptions about First Nations communities that did not reflect the actual needs of those communities. The Tribunal also found that the FNCFS Program’s two main funding mechanisms incentivized removing First Nations’ children from their families.

The Tribunal also found that INAC’s narrow interpretation and implementation of Jordan’s Principle results in service gaps, delays or denials, and overall adverse impacts on First Nations children and families on-reserve. Jordan’s principle is a child-first principle that provides that, in the matter of public services available to all other children, where jurisdictional disputes arise between Canada and a province/territory, or between government departments in the same government, the government or department of first contact pays for the service, and can seek reimbursement from another government or department after the fact.

INAC’s Failure to Reform to FNCFS Program

The Tribunal found that INAC was aware of the adverse impacts caused by its FNCFS Program for many years, and that, despite that knowledge and numerous reports and recommendations to address those adverse impacts, failed to significantly modify the FNCFS Program. The Tribunal found that the reforms INAC introduced failed to address the service gaps, denials, and adverse impacts caused by the FNCFS Program. The Tribunal qualified Canada’s statements and commitments regarding reform of the FNCFS Program, expressed on the international scene and at the national level, as “empty rhetoric”.

The Tribunal found that, by focusing on funding levels, INAC’s attempts to reform the FNCFS Program to this point have failed to address the root causes of the adverse impacts experienced by First Nations children and families living on- reserve. The Tribunal held that a true reform of the FNCFS Program requires an approach that focuses on providing substantive equality by focusing on the distinct needs and circumstances of First Nations children and families living on- reserve, including their cultural, historical, and geographical needs and circumstances.

Remedies Ordered

The Tribunal made four immediate orders regarding the discrimination perpetuated by the FNCFS Program. First, INAC was ordered to:

1. Cease its discriminatory practices regarding the FNCFS Program;

2. Reform the FNCFS Program;

3. Cease applying the narrow definition of Jordan’s Principle; and

4. Take measures to immediately implement the full meaning and scope of Jordan’s Principle.

The Tribunal also retained jurisdiction over the complaint to seek further information regarding the immediate and long-term remedies sought by the Caring Society and the AFN, and to seek further information regarding the compensation sought for First Nations children impacted by child welfare practices on-reserve between 2006 and January 26, 2016.