Jordans Principle: Raising-Up First Nations Children & Youth - - PowerPoint PPT Presentation

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Jordan’s Principle: Raising-Up First Nations Children & Youth

Olthuis Kleer Townshend LLP

Sinead Dearman Presentation for COO Health Forum October 2018

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

• f Jordan’s Principle

contributes to discrimination

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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]

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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

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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
• r disruptions related to their First Nations

status. “When substantive equality in outcomes does not exist, inequality remains.”

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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).

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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.

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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

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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.

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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

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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]

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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]

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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

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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.

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Compliance Order #3 – Jordan’s Principle

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).

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NEW…Jordan’s Principle for Non-Status Children Living Off-Reserve with Urgent Needs

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Where We are Now – Types of Claims

Individual Group Retroactive (to 2009)

Band Representatives and Mental Health

• COO brought a motion to ask the Tribunal

to order that Band Representatives and Mental Health Services should be

• rdered in the immediate term for

Ontario First Nations

• Ruling is 2018 CHRT 4

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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

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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

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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.

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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.

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Compliance Order # 4: Mental Health Services in Ontario

Order:

• Canada must fund the actual costs of mental health

services to First Nations children and youth from Ontario

• Funding must be provided whether those services

were provided by First Nations, Tribal Councils, First Nations Child and Family Services Agencies, parents/guardians or other representative entities

• Funding will be provided retroactive to January 26,

2018

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Which mental health services are eligible for funding?

The order is broad:

• All mental health expenses for First Nations

children aged 0-18 from Ontario

• Any out of pocket costs related to these

expenses, from travel to fees

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What do I need to do to get Reimbursed for Band Representative or Mental Health Costs? You need to: Provide some documentation of these costs. Canada will accept: Receipts or invoices Financial statements A signed statement explaining what was spent

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What will happen with Band Representatives going forward?

Canada has to fund band representative programs until such time as studies have been completed or there has been a further order of the panel

• Submit your proposals for band representative

services to INAC. You will not be limited by what you provided in the past. Your proposal should focus on the needs of your community and your children.

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Key Take-Away Points

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• Caring Society is a ground-

breaking precedent on “closing the gap” in a meaningful way.

What it says about discrimination in First Nations services – and its opposite, substantive equality – can be applied to many other areas. Education … Health … Infrastructure … Services …

Key Take-Away Points

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The door is open to change federal funding in First Nations child welfare. It is critical for First Nations to engage effectively – with strength, smarts, coordination and preparation – to make the most of this opportunity. Now is the time to formulate/advocate/negotiate to get the best changes possible – especially on funding.

Key Take-Away Points

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Don’t forget about provincial initiatives. Provincial law and policy still have a central role in child and family services. Under the 1965 Agreement, Ontario funding also affects you. Ontario’s changes remain very important.

Key Take-Away Points

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• And of course, never lose sight of your own initiatives.
• Regaining the exercise of your own laws &

jurisdiction (funding is available from Canada for this)

• Running your own programs the way you

want them

• Building & improving your agencies and
• ther institutions
• Serving your own children, youth and

families the way your people decide is best

Sinead Dearman 416-981-9356 sdearman@oktlaw.com www.oktlaw.com

THANK YOU!