Tribunal orders Canada to address Jordan's Principle backlog immediately

The federal government must deal immediately with a backlog of claims under the Jordan's Principle program for First Nations kids, the Canadian Human Rights Tribunal has ruled.

In a letter decision released Thursday, the quasi-judicial panel ordered Canada to consult First Nations groups on solutions to the logjam, noting some of the backlogged requests "may very well be urgent."

Jordan's Principle aims to ensure First Nations children get prompt access to health and social services without discrimination, with questions about which jurisdiction pays for them worked out afterward.

The summary decision addresses a motion from Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, who alleged the government created the backlog through mismanagement, potentially putting childrens' lives in jeopardy.

"This backlog was admitted by Canada and while parties may have different views on the number of backlogged cases, the existence of a backlog is undisputed," the letter says.

Blackstock called it "yet another excellent decision" made on the facts.

"I think it's important that Canada learns a lesson," she said, "that when we raise legitimate concerns from First Nations, agencies, people on the ground — and families are saying, 'You're out of compliance and provide solutions' — that they have to move forward and do that, because children's lives are literally on the line."

The tribunal, a court-like panel that investigates discrimination complaints, ordered Canada to report back with a detailed plan, targets and timelines by Dec. 10.

A spokesperson for Indigenous Services Minister Patty Hajdu didn't comment on the decision directly but said Canada has spent nearly $8.1 billion to meet the needs of First Nations children through Jordan's Principle since 2016.

"We remain focused on ensuring First Nations children can access services they need. We are currently reviewing the CHRT's decision and will have more to say soon," wrote press secretary Jennifer Kozelj in an emailed statement.

The Assembly of First Nations has not responded to a request for comment.

Criteria needed for urgent cases

Currently, the timelines for Canada to respond to urgent requests are 12 hours for individuals and 48 hours for groups. Canada responded to Blackstock's motion by seeking to modify the timelines, but the tribunal refused.

Canada argued requests were being misclassified, with things like modelling headshots, a snowmobile, a lawn mower, glow sticks, televisions and a zip line kit being labelled improperly as urgent.

The Caring Society had motioned for the creation of a complaints mechanism to ensure accountability in the program.

Both Canada and the Caring Society had parts of their motions granted.

"The tribunal ... agrees that the backlogs need to be addressed and objective criteria for urgent cases must be developed as a priority," the letter says. 

"The tribunal agrees it would be best to have broad consultations with First Nations for the creation of a permanent independent Indigenous-led complaints mechanism."

The ruling sends a strong message to the government about how it must behave when these disputes arise, according to Blackstock.

"It reminds Canada of its obligations to consult, and it reminds Canada that they have to come forward with evidence-based solutions, not just something off the back of a napkin," she said.

"They also remind Canada that children's human rights are minimum standards. They're not aspirations."

The tribunal has not ordered any specific reforms, only consultations to try and reach solutions everyone agrees on. The parties include the Caring Society, AFN, Chiefs of Ontario and Nishnawbe Aski Nation.

The legal battle dates back nearly 18 years to early 2007, when the Caring Society and AFN filed a human rights complaint alleging the chronic underfunding of on-reserve child and family services was racially discriminatory.

The tribunal upheld the allegation in a landmark 2016 decision, and since then it has sought to reform the programs. In 2019, the tribunal ordered compensation for the victims, which eventually led to a court-approved $23.3-billion compensation deal.

The tribunal's orders also led to a separate proposed $47.8-billion deal to reform the on-reserve child welfare program over 10 years, but in October chiefs voted this deal down and called for new negotiations.

The tribunal also ordered Canada to properly implement Jordan's Principle and reform that program long term, but so far no agreement has been reached.