Tansi Nîtôtemtik,
On January 26, 2016, a monumental case was decided by the Canadian Human Rights Tribunal regarding the current state of First Nations children in care[1]. Dr. Cindy Blackstock, Executive Director of the First Nations and Family Caring Society (FNFCS) spearheaded the lawsuit beginning in February 2007. FNFCS along with the Assembly of First Nations (AFN) alleged that Aboriginal Affairs and Northern Development Canada (AANDC; now known as Indian and Northern Affairs Canada, INAC) “discriminates in providing child and family services to First Nations on reserve and in the Yukon, on the basis of race and/or national or ethnic origin, by providing inequitable and insufficient funding for those services.”[2]
The Tribunal in its recent decision found that the federal government has a fiduciary duty to First Nations to ensure the safety and well-being of children on reserves and to provide child and family services that are comparable to Canadian children who are off-reserves[3]. The Tribunal declared that AANDC has failed to meet these goals by failing to provide appropriate funding to FNFCS and other programs, which has ultimately adversely affected First Nation communities[4].
This decision came after a thorough consideration of Jordan’s Principle and an analysis of the current state of the child welfare system where AANDC has an obligation to First Nations children. Jordan’s Principle, as we discussed yesterday, is a “child-first principle” which directs that the government power or department that receives a request for children’s services funding will pay out the funds first and then address jurisdictional issues later[5]. The goal is to meet the best interests of the child without removing them from their homes, without delay, and ensuring essential public services are made available. In this case, AANDC and Health Canada claimed that Jordan’s principle is not a child welfare concept, but applies only to First Nations children with multiple disabilities, and therefore is not applicable to the FNFCS program[6]. The Tribunal disagreed with this narrow interpretation, declaring that Jordan’s Principle applies to all First Nations children[7]. AANDC’s unwillingness to provide adequate funding has gone against the goals of Jordan’s principle, resulting in the removal of children from their homes, once again giving Canada the false impression that the best interests of Indigenous children requires removing them from their homes.
Only time will tell if this decision will truly impact the state of child welfare for First Nations children. Truthfully, this is only the tip of the iceberg. Funding needs to be made available to these programs. Inquiries and requests for services need to be taken seriously by the government. The Labrador Innu, for example, have continued to have their children displaced and Justin Trudeau’s Federal Government has yet to agree to partake in a national inquiry[8]. Both Canadian federal and provincial governments have a responsibility to step up and address the gaps created solely by a government system that has spent hundreds of years focusing on removing Indigenous children from their homes.
Until next time,
Team ReconciliAction YEG
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[1] 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
[2] Ibid at para 6.
[3] Ibid at para 383.
[4] Ibid at para 383.
[5] Ibid at para 351.
[6] Ibid at para 358.
[7] Ibid at para 382.
[8] Maggie Wente, “Labrador Innu Child Welfare Inquiry” (Indigenous Bar Assocation Conference, Ankukamkewey: Joining Together in Peace and Friendship) delivered in Halifax, Nova Scotia, 21 October 2017) [unpublished].
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