Tribunal urges First Nations, feds to 'leave their conflicts aside' on Jordan's Principle issues

Come together for the children's sake. 

That was the blunt message the Canadian Human Rights Tribunal gave the federal government and First Nations organizations as the latest hearing in a complex, 17-year-old human rights complaint concluded Thursday in Ottawa.

"I believe that the collective work of everyone has moved Canada in the right direction," said Sophie Marchildon, chair of the panel hearing the complaint, in a short, imploring speech.

"This work ought to continue. I urge the parties to leave their conflicts aside."

The tribunal was asked to decide whether Canada continues to fail First Nations kids by mishandling the Jordan's Principle program, which aims to ensure First Nations kids get timely access to health care services and educational supports, with questions about which jurisdiction pays for them worked out afterward.

Indigenous Services Canada currently has a large backlog of unprocessed requests and complainant First Nations Child and Family Caring Society argued that is putting kids at risk of harm and even death. Canada argued the evidence for that charge is slim.

Meanwhile, the landmark case's other complainant, the Assembly of First Nations (AFN), has broken ranks with the society. The AFN echoed some of both the society's and Canada's concerns but urged the tribunal to grant neither's requests.

Marchildon urged the parties to set the acrimony aside.

"I believe that you have the ability to show the children and everyone in Canada how reconciliation is done," Marchildon continued.

"In the words of Nelson Mandela, reconciliation means working together to correct the legacy of past injustice."

Relationship between parties 'challenging,' says lawyer

The case dates back to 2007, when the AFN and the Caring Society led by executive director Cindy Blackstock jointly filed a complaint alleging Canada's chronic underfunding of on-reserve child and family services and refusal to abide by Jordan's Principle amounted to systemic racial discrimination.

The panel upheld the complaint in 2016 and awarded the victims compensation in 2019. Those orders evolved into a $23.4-billion compensation deal and a proposed $47.8-billion deal to reform the First Nations child and family services program.

But reform of Jordan's Principle isn't covered by these deals, and cracks have begun to show in what has often been a united front adopted by the society, the AFN and other parties over the years.

Canada's legal counsel suggested the panel should take that into consideration when and if they decide to make any orders.

"The relationship between these parties is challenging," said Justice Canada lawyer Dayna Anderson earlier Thursday.

"You've likely surmised over the last few days that the relationship between the parties here is as complicated and as multifaceted as the reconciliation efforts that are being made."

The AFN likewise urged caution while the AFN and other parties to the complaint try to negotiate a resolution. AFN's lawyer Stuart Wuttke asked that any orders be temporary, citing the ongoing talks and "a great lack of evidence" backing the Caring Society's position.

Blackstock argued Canada is legally required to end its discriminatory practices as a baseline standard and can't offload that obligation to uncertain, future negotiations.

"We have got children right now who are being discriminated against by Canada because their requests are not being dealt with properly," she said in an interview Wednesday.

"That's resulting in serious harms. It's not enough to say, 'Leave us alone and we can negotiate later.' It has to meet that standard."

Lawyer challenges Caring Society

Anderson took aim at the Caring Society again on Thursday, saying it is "not an expert in public administration" and "do not represent First Nations," allegations Blackstock bristled at.

She stressed her organization's expertise and pointed to letters in evidence from First Nations organizations supporting the non-compliance motion.

"There's none supporting Canada's position and there's none supporting AFN's position," she countered.

Even so, panel member Edward Lustig suggested the most the tribunal may be able to do is order the parties to negotiate a solution given the panel's lack of expertise in the design of government programs.

"I don't know that we can discuss anything more," he said in comments directed at Canada's lawyer. 

"You know where that right point is to make the system work better and to avoid the calamity of someone who's dying not getting the service. We're not going to be able to tell you where that point is. We're only going to be able to tell you: Go off and try to find it yourselves."

The tribunal reserved its decision as the hearing adjourned.