First Nations leaders split on strategy amid Jordan's Principle hearing

As First Nations leaders and the federal government bear down to try to seal a multibillion-dollar deal on child and family services reform, more than money is on the line.

Advocate Cindy Blackstock says children's lives remain at risk due to Ottawa's mismanagement of the Jordan's Principle program — and that's why her organization broke a landmark agreement-in-principle, worth nearly $20 billion, to restart litigation at the Canadian Human Rights Tribunal.

"We came here as a last resort," Blackstock told CBC Indigenous on Thursday, after watching cross examination of top federal officials over two days in a downtown Ottawa hearing room.

"We tried all the rest of the stuff. The problem with negotiating is that negotiation is appropriate when you have a motivated other party to do the change."

But with the $20-billion final settlement under negotiation, some feel now is not the time for litigation — leading some of Blackstock's allies, including the Assembly of First Nations (AFN), to break ranks with her First Nations Child and Family Caring Society over some issues.

National Chief Cindy Woodhouse Nepinak said the AFN supports the Caring Society's motion "in part" and will oppose other proposals.

The longstanding complaint dates to 2007, when Blackstock's group joined with the AFN to file it with the tribunal, alleging Ottawa had underfunded child and family services on reserves for years and chronically failed to meet mandatory timelines when answering requests under Jordan's Principle — a program that ensures First Nations youth can access medically necessary products and services without delays linked to jurisdictional disputes.

The tribunal upheld that complaint in 2016, and eventually the Trudeau government proposed a $40-billion umbrella settlement in 2022.

The settlement comprises two signed agreements-in-principle on compensation and reform. While the former was approved at $23.4 billion last year, the $19.8-billion reform deal remains under negotiation.

But the agreement-in-principle bars motions like Blackstock's renewed litigation, meaning the society has breached it. Blackstock concedes this, and has "stepped out" of the talks.

The move puts other parties, which include the federal government, the AFN and two other groups that joined the case later — the Chiefs of Ontario and Nishnawbe Aski Nation (NAN) — in a tactical bind. Some feel now is not the time for litigation.

"We're committed to staying at the negotiating table with the federal government on this matter, all due respect to Cindy Blackstock," said Bobby Narcisse, deputy grand chief of NAN, representing 49 First Nations in northern Ontario.

"These applications need to be sorted in a timely manner, but the motion shouldn't railroad the negotiations," he said.

The Caring Society "shouldn't be boycotting the negotiation process we all agreed to."

Narcisse calls the offer a historic, once-in-a-lifetime opportunity to change the system, but also cites practical political considerations. A federal election is slated for 2025, and approving any final deal would take time.

"We could have a change in government in a year or so, so these deals maybe could be off the table," he said.

The AFN is hedging its remarks. 

Woodhouse Nepinak says the group shares concerns about the backlog of unprocessed requests, but feels the Caring Society's motion has invited Canada and the tribunal to modify existing timelines.

"So the Assembly of First Nations will oppose some of the relief the Caring Society is proposing," she said. 

Indeed, lawyers for Indigenous Services Canada (ISC) hit back against the society with a cross-motion that seeks to extend — and in some cases eliminate — Jordan's Principle timelines.

For urgent individual requests, the federal department wants the existing timeline extended from 12 hours to 48 hours. Routine requests would be extended from 48 hours to "without unreasonable delay."

In an affidavit, Valerie Gideon, deputy minister of Crown-Indigenous relations and a former senior ISC official, said a "significant number" of requests are likely misclassified as "urgent."

She says over the years the trend has shifted toward socioeconomic requests for things like groceries, rent and mortgage payments, new homes, renovations and items like personal vehicles or sports camp fees.

Gideon, who was cross examined on Tuesday, provided a list of allegedly mis-classified requests for things like modelling headshots, a snowmobile, a lawn mower, glow sticks, televisions and a zip line kit.

Federal lawyers contend in a filing that extending the timelines "will benefit First Nations children by ensuring that urgent and non-urgent requests can reasonably be distinguished," allowing for determination in reasonable time.

Blackstock rejects the argument as absurd. Ethically, she says, the Caring Society couldn't stay in talks aimed at ending racial discrimination "while shielding Canada from accountability for discriminating against kids in real time."

In her view, if Canada is found in non-compliance with Jordan's Principle, then it too is breaking the agreement-in-principle. She doesn't see the Caring Society as boycotting talks, but pressing for better.

"We can get this thing done before the next election. I am totally confident in that," she said. "But what we can't do is bargain away the rights of our First Nations kids, below what they're legally entitled to, because we're scared."

In an emailed statement, ISC said the department is eyeing new technologies and automation to speed up approvals and streamline the process. 

The motion is scheduled to be argued in June.