Canadian Human Rights Tribunal Proceeding Update Nishnawbe Aski - PowerPoint PPT Presentation

Canadian Human Rights Tribunal Proceeding Update Nishnawbe Aski Nation (NAN) Chiefs-in-Assembly Special Winter Assembly, Thunder Bay February 1, 2018

Introduction… Purpose: to provide the NAN Chiefs in Assembly with an update on the Caring Society child welfare case, currently before the Canadian Human Rights Tribunal (“the Tribunal”) ; Materials: Briefing Note titled ‘Summary Tribunal Decision of February 1, 2018 ’ ; and, This PowerPoint presentation 2

Outline of Tribunal Update Brief background on Tribunal Proceedings to Date Summary of Tribunal’s rationale Summary of Tribunal’s Orders Overview of proposed amendments to Tribunal’s February 1, 2018 decision 3

Overview of Tribunal Proceedings January 26, 2016 : the Canadian Human Rights Tribunal (“the Tribunal”) found that Aboriginal Affairs and Northern Development (currently Indigenous and Northern Affairs "INAC") is racially discriminating against 163,000 First Nations children by not providing enough funding for child and family services on reserves. Compliance Hearing March 22-24, 2017 (Ottawa) : Requested by Complainants Parties (AFN, Caring Society, NAN, COO) to obtain specific compliance orders from the Tribunal March 29, 2017: Tribunal issues orders in support of NAN/INAC/Health Canada agreements to create: (1) a Choose Life Working Group; and (2) a Remoteness Quotient Table. May 26, 2017 : Tribunal issues a decision focused entirely on Jordan’s Principle (partially appealed and settled by Canada in June/August 2017) February 1, 2018: Tribunal issues decision 4

Overview of Tribunal Proceedings In the Tribunal’s January 26, 2016, decision (finding of discrimination), the Tribunal proposed to address remedies (solutions) in three phases: 1) Immediate Relief; 2) Medium-term Relief; and, 3) Long-term Relief. The February 1, 2018 Tribunal Decision concludes the immediate relief phase of these proceedings. 5

Embargoed Feb 1, 2018 Decision Embargo: Tribunal releases an advance confidential copy of the February 1, 2018 ruling on December 18, 2017. Tribunal’s Reason for Embargo: Tribunal admits that the issues in decision are complex; Tribunal wanted to give parties an opportunity to seek modifications/amendments prior to public release of the decision. 6

Overview: Tribunal Feb 1 Decision Overview: Decision is 101-pages in length Tribunal was critical of Canada’s continued delayed implementation regarding immediate relief Tribunal was congratulatory to NAN due to its agreements with Canada on (1) Choose Life; (2) Remoteness Quotient [see next slide for excerpted quotes] 7

Tribunal’s Remarks re. NAN The Remoteness Quotient [338] Since joining these proceedings as an interested party in May 2016, NAN has sought to address the design and implementation of the Panel's orders with specific regard to the context of remote and northern communities in Ontario. It has advocated that a new remoteness quotient be developed to ensure funding to remote northern communities reflecting the high cost of living and the extraordinary cost of providing services in those communities. ” [340] INAC and NAN have agreed to terms on the development and implementation of a remoteness quotient for the three FNCFS Agencies that serve NAN communities. INAC will fund the development of this quotient. [342] INAC and NAN were to provide an update to the Tribunal by September of 2017 concerning the progress of data collection and analysis in relation to the Terms of Reference and every six months thereafter as long as the Panel remains seized of this order. [347] The Panel is encouraged by NAN and INAC's progress that will lead to a real positive outcome for children. 8

Tribunal’s Remarks re. NAN Choose Life [1/2 slides] [348] As part of its motion's order requests, the NAN was seeking a “Choose Life” order that Jordan's Principle funding be granted to any Indigenous community that files a proposal (akin to the Wapekeka proposal) identifying children and youth at risk of suicide. [349] On March 22, 2017, Health Canada committed to establishing a Choose Life Working Group with NAN aimed at setting out a concrete, simplified process for communities to apply for Child First Initiative (Jordan's Principle) funding. … [354] … NAN has advised that there is now a streamlined process in place for NAN communities with children and youth at risk of suicide. This process is intended to begin to address the gaps in mental health services for First Nations children and youth, and allow NAN communities to begin to develop their own in-community services to prevent the loss of their youth. [Tribunal’s emphasis] [355] The Panel was very happy to learn this streamlined process was in place and so expeditiously, less than 3 months after the March 29 Consent order. 9

Tribunal’s Remarks re. NAN Choose Life [2/2 slides] [358] Since the June 8 Report, twenty-one (21) NAN communities have received funding through the Choose Life process, approving Choose Life Applications totaling $10, 962,915.58 in funding and affecting 4,686 children. More Choose Life Applications are being developed and/or reviewed by Health Canada for approval. [359] The NAN also advises the Choose Life program has been extended to secondary service providers, in order to support the student safety of NAN youth, while attending school and away from their home communities. [360] Again, the Panel is very pleased to learn about this significant agreement that will have positive and real impact on the lives of indigenous children. [361] It is also a sign that meaningful agreements can be made in a relatively short time frame in the best interest of children. The Panel is impressed by the proactive, timely and effective work leading to this historical agreement. 10

Tribunal’s Rationale Regarding Canada’s conduct [para. 15]: “Insofar as Canada's actions, it is incorrect to assert it did nothing. It is also incorrect for Canada to say it did everything that it could do and everything that what was asked of it in the immediate term, which has now become mid-term. The Panel finds it important to raise this perspective, which is informed by the evidence before it both at the hearing on the merits and at the motions' hearing. ” [Tribunal’s emphasis] 11

Tribunal’s Rationale Regarding the Tribunal’s jurisdiction to intervene [paras. 54-56] “It is important to distinguish policy choices made by Canada that satisfactorily address the discrimination, in which the Panel refrains from intervening, from policy choices made by Canada that do not prevent the practice from reoccurring. To explain this, if the Panel finds that Canada is repeating history and choosing similar or identical ways to provide child welfare services that amounted to discrimination, the Panel has justification to intervene. Finally on this point, while Canada advances that it needs to consult with all First nations' communities, which in our view remains paramount for long term reform, the Panel does not think consultation prevents Canada from implementing immediate relief. In so far as Canada's position is that it cannot unilaterally make decisions, the Panel finds Canada has done so: namely to maintain the status quo in some areas even when the needs of specific communities or groups have been clearly identified and expressed in numerous reports filed in evidence in this case and referred to in the Decision's findings. The Panel finds troubling that important issues addressed at length in the unchallenged Decision are advanced again by Canada. …” [Tribunal’s emphasis] 12

Tribunal’s Rationale Regarding Canada shifting responsibility to the Provinces [paras.59-60] “Canada simply cannot hide behind the provinces' responsibilities to shield itself from its own responsibilities. This legal argument was advanced for years before the Tribunal. It was answered and put to rest in February 2016 when the Decision was not challenged. INAC cannot act as judge and party in relation to the Decision and grant itself a stay and a post facto successful judicial review. This is not how our justice system is designed. ” 13

Tribunal’s Rationale Regarding the Tribunal’s powers to make orders [paras. 165, 217] “As stated above, the CHRA's objectives under sections 2 and 53 are not only to eradicate discrimination but also to prevent the practice from re-occurring. If the Panel finds that some of the same behaviours and patterns that led to systemic discrimination are still occurring, it has to intervene. This is the case here . All of the parties agree that the Tribunal's remedial powers are to be interpreted broadly to give effect to the objectives of the CHRA in eliminating discrimination when there has been a determination by the Tribunal that discrimination has occurred and an order to cease has been made, in order to ensure that the discrimination does not continue. ” [Tribunal’s emphasis] 14

Summary: Tribunal’s Orders Overview of Tribunal’s Orders Tribunal ordered Canada to fund actual costs of numerous services (detailed later) Tribunal ordered Canada to assess/analyze Agency needs (including deficits) and report back to Tribunal Tribunal ordered Canada to enter protocol with parties to discuss implementation of the Tribunal’s Orders 15