Jordan’s Principle: Raising-Up First Nations Children & Youth Olthuis Kleer Townshend LLP Sinead Dearman Presentation for COO Health Forum October 2018 1
Overview of Presentation • Jordan’s Principle overview – history and road to the Canadian Human Rights Tribunal (“ CHRT ” or “Tribunal”) • What did the 2016 Tribunal Decision say about Jordan’s Principle? • What did Canada do? • What did the CHRT do?
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Jordan’s Principle goes to the Tribunal February 23, 2007: • a national human rights complaint is filed at the Canadian Human Rights Tribunal • COO intervenes as interested party • Complaint: – Underfunding incentivizes apprehensions – Canada’s narrow interpretation of Jordan’s Principle contributes to discrimination 4
Tribunal Ruling – The Children WON!!!!!! January 2016 ORDERS “ AANDC is ordered to cease its discriminatory practices and reform the FNCFS Program and 1965 Agreement to reflect the findings of this decision” “ AANDC is […] ordered to cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan's principle .” [ 2016 CHRT 2, para 481] 5
Important Wins from the Tribunal 1. Full meaning and scope of Jordan’s principle must be implemented and respected – Services to First Nations children MUST meet their cultural, historical, & geographic needs and circumstances 2. Funding at actuals for Band Representative Services going- forward and retroactive to January 2016 for Ontario First Nations 3. Funding at actuals for Child and Youth Mental Health costs retroactive to January 2016 for Ontario First Nations & caregivers 6
Jordan’s Principle - Objective Ensure First Nations children can access all public services in a way: 1. that is reflective of their unique personal needs (including cultural and geographic needs); 2. that takes full account of social, economic, and historical disadvantage; and 3. without experiencing any service denials, delays or disruptions related to their First Nations status. “ When substantive equality in outcomes does not exist, inequality remains .” 7
Who is Eligible for Jordan’s Principle? 1. First Nations children living on-or-off reserve who are registered under the Indian Act or are eligible to be registered. 2. First Nations children living on-reserve who are not registered under the Indian Act & not eligible to be registered. 3. On a temporary basis First Nations children living off- reserve who are not eligible to be registered under the Indian Act but are recognized as members of their Nation and who have urgent and/or life-threatening needs (2019 CHRT 7). 8
Who is Eligible for Jordan’s Principle? • ALL First Nations children with an unmet need are eligible for Jordan’s Principle, including, but not limited to, children with special needs. • There does not need to be a jurisdictional dispute for Jordan’s Principle to apply, only an unmet need. 9
What did Canada do? • Canada continued to apply a narrow version Jordan’s Principle Only children living on reserve Only children with disabilities and children who present with a discrete, short-term issue for which there is a critical need for health and social supports • Lack of clarity around Jordan’s principle processes and continued delays 10
What did the Tribunal do? Compliance Order # 1 April 2016 (2016 CHRT 10) • ISC/INAC must immediately consider Jordan’s Principle as including all jurisdictional disputes and involving all First Nations children • The government organization that is first contacted should pay for the service without the need for policy review or case conferencing before funding is provided. 11
What did the Tribunal do? Compliance Order # 2 September 2016 (2016 CHRT 16) ISC/INAC must: • not decrease or further restrict funding for children’s services covered by Jordan’s Principle • immediately apply Jordan’s Principle to all First Nations children (not only to those resident on reserve) • provide clarification on process to manage Jordan’s Principle cases, how they will ensure compliance with Tribunal’s orders • provide detailed compliance report to Parties and Tribunal explaining how it has complied with orders, including on Jordan’s Principle 12
Compliance Order #3 – Jordan’s Principle May 2017 (2017 CHRT 14) • Canada’s definition of Jordan’s Principle is still too narrow [67] • Canada is wrong to focus only on matching provincial service standards. Sometimes First Nations children have higher or different needs because of disadvantages they face (“substantive equality”), or need specific culturally appropriate services [69-71] 13
Compliance Order #3 – Jordan’s Principle Process for funding Jordan’s principle cases still creates delays [92-93] Poor tracking of Jordan’s principle cases, so Canada doesn’t know if it is implementing Tribunal’s orders [104] Canada has failed to properly publicize broader definition of Jordan’s Principle to First Nations and to its own staff [112] 14
Compliance Order #3 – Jordan’s Principle 1. Definition of Jordan’s Principle • Applies on and off reserve (see also 2019 CHRT 7) • Not limited to children with disabilities or discrete short term needs • Includes wide range of services - mental health, special education, dental, physical therapy, speech therapy, medical equipment and physiotherapy • No dispute among government departments is required for JP to apply • Substantive equality, not just the provincial standard 15
Compliance Order #3 – Jordan’s Principle 2. Processing and Tracking of Jordan’s Principle Cases • Government of first contact must the needs of the child requesting services under JP • It has to decide within 48 hours (12 hours if the case is urgent) whether the case is JP eligible. – Narrow exceptions to 48 hr window to address information gaps – 1 week for group proposals • If the request is granted, then the department of first contact has to pay for the service without delay. • If it is denied, then they need to make clear to the family that they can appeal, and explain how. 16
NEW…Jordan’s Principle for Non -Status Children Living Off-Reserve with Urgent Needs On February 21, 2019 the Tribunal ruled that, on an interim basis, First Nations children who are not eligible to be registered under the Indian Act & who live off- reserve & have urgent needs are eligible for Jordan’s Principle. Child must: 1. Be recognized as a member of their Nation; and, 2. Have urgent and/or life-threatening needs. This order only stands until a full hearing on the matter (sometime in 2019). 17
Where We are Now – Types of Claims Individual Retroactive (to Group 2009) 18
Band Representatives and Mental Health • COO brought a motion to ask the Tribunal to order that Band Representatives and Mental Health Services should be ordered in the immediate term for Ontario First Nations • Ruling is 2018 CHRT 4 19
What is a Band Representative? • Band Representatives work to keep children unified with their families and communities to reduce the number of children in care • Their role is defined by each First Nation • They are the voice of the Nation in child welfare cases • They repatriate children • They provide family supports 20
Compliance Order # 4: Band Representatives Orders: • Canada must fund band representative services for Ontario First Nations, Tribal Councils or First Nations Child and Family Services Agencies at actual cost of providing those services • Funding is retroactive to January 26, 2016 • Retroactive funding must be provided by February 15, 2018 or within 15 business days after receipt of documentation 21
Reimbursement for Band Representative Services: what is eligible? Salary and benefits (including the hiring of Assistant/Clerk to assist with intake, file organization, etc.); Per diem and honorarium payments; Travel costs for Band Representatives and family members (e.g. accommodations, meals, flights, taxis); Dues, Subscriptions, Licenses, Memberships costs; Remoteness costs; Client transportation(non-medical); Repatriation; Recruitment; Training; Professional Development; Professional assessments (such as parental capacity assessments); Mentorship costs; Office supplies and computer/IT (e.g. stationary, office supplies, supplies purchased to perform job i.e. paint for a painting job, some computer and software costs i.e. invoicing software); Office rent; Insurance; Administrative support; Legal and associated costs; Communication; Advertising and Promotions; Mobile phone; Long-distance telephone; Business land line; Post/Courier; Home Office (e.g. utilities, mortgage interest if owned, rent if not owned, repairs and maintenance, property taxes, insurance); Family support services costs; Court fees, disbursements and court-ordered costs. The list is examples only but the actual costs should be covered. If in doubt, ask for expense to be reimbursed. 22
Compliance Order # 4: Mental Health Services in Ontario The Tribunal agreed that : – Canada’s failure to fund mental health services for First Nations children from Ontario is discriminatory – Funding for mental health services for First Nations children and young people from Ontario should be provided as part of immediate relief. 23
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