Equitable Funding for First Nations Child Welfare Services and the Implications of Jordan’s Principle

First Nations Child Welfare Case – Equitably Funding First Nations Child Welfare Services

A landmark court decision has made it clear that Canada must equitably fund First Nations child welfare services. This includes the costs of prevention, intake and assessment as well as legal fees.

Children should be involved in all decisions that impact them. Adults have an obligation to facilitate exciting and meaningful ways for children to participate.

What is Jordan’s Principle?

Named after Jordan River Anderson, a First Nations child from Norway House Cree Nation in Manitoba, the principle requires governments to help children first and figure out payment disputes later. This principle was set out in a landmark decision by the Canadian Human Rights Tribunal in January 2016.

Government officials must assess each request on its own merits and provide services according to what is best for the child. The principles applies to all levels of governments across Canada.

In response to the decision, the federal government established Jordan’s Principle focal points in each region of Canada to manage requests. People can contact their regional focal point for more information on how to access products, services and supports for their children. The 24/7 Jordan’s Principle toll-free line and regional contacts can also be used to report a jurisdictional dispute. It should be noted, however, that these contact points cannot assist with requests related to a CHRT order of compensation for individuals.

What is the Caring Society’s complaint?

The Caring Society’s complaint was based on Section 5 of the Canadian Human Rights Act, which prohibits discrimination in respect of services customarily available to the general public. It argued that the federal government’s funding formula for child welfare services on reserve is discriminatory because it provides less funding than provincial funding despite the fact that First Nations children are subject to the same provincial laws.

The Tribunal found that the Caring Society’s allegations were substantiated and ordered the federal government to take measures to comply with Jordan’s Principle. It also ordered the government to stop discriminatory practices in its funding for child welfare services on reserve.

The decision means that Canada must stop the discriminatory policies it has had in place for decades, which have led to a massive overrepresentation of First Nations children in the child welfare system and unnecessary removals from families. These are devastating consequences for children and their families. This is an important and historic ruling.

What is the government’s response?

The government has argued that the court should not be allowed to find discrimination. They argue that the tribunal’s decision is contrary to international law and flies in the face of Canada’s obligations to protect children.

The tribunal disagreed and ruled that the Department of Indigenous and Northern Affairs’ (INAC) design and funding of child welfare services on reserve, as well as its discriminatory allocation formulas, cause a number of harms to First Nations children and their families. The tribunal also ruled that these harms are contrary to the requirements of the Canadian Human Rights Act.

The ruling has major implications for the future of child welfare in this country. It creates a path for Indigenous communities to use Jordan’s Principle to claim jurisdiction over their own child welfare laws, and even to negotiate co-ordination agreements with provincial governments. Indigenous groups are already recognizing the importance of this watershed decision. Those who supported the Idle No More movement are especially enthusiastic about it.

What is the court’s decision?

The court ruled that the federal government has the power to make laws that go to the heart of Indigenous peoples’ lives, including child welfare. It also confirmed that Canada can incorporate into its law the laws of Indigenous nations, communities or peoples by reference. The court ruled that this means the provisions of any law written by the federal government that conflict with a law written by an Indigenous nation, community or people will always prevail.

The tribunal found that the federal government’s design, management and funding of child welfare services on reserves – as well as the way it prioritizes those services over others — cause a number of harms to First Nations children that amount to discrimination. It ordered the federal government to compensate those affected.

Cindy Blackstock says the ruling is a huge victory for Indigenous children and their families. But she warns that it is not a “decisive victory” as the court didn’t confirm a right to self-government protected by Section 35 of the Constitution.

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