Canada can't say when 140,000 backlogged cases will be cleared at First Nations children's program

Canada doesn't know when 140,000 backlogged requests will be cleared at the Jordan's Principle program for First Nations kids, calling a legal order requiring swift action on it "challenging" to implement.

The Canadian Human Rights Tribunal ruled on Nov. 21 that Canada must immediately address the bureaucratic logjam, which the federal government has now confirmed includes 25,000 self-determined urgent applications for First Nations kids in need.

The tribunal held Canada in breach of past rulings and ordered it to report back with a plan to address the backlog. But in that Dec. 10 report, Indigenous Services Canada (ISC) pushed back against the deadlines.

"ISC is concerned that the timelines to address the backlog of Jordan's Principle requests could have unintended impacts on delivering critical services to First Nations children and families and is not operationally feasible," wrote Dayna Anderson, general counsel at Justice Canada.

At this time, given the unpredictable number of new daily requests, "ISC is unable to estimate the timeframe in which all backlogged requests will be cleared," Anderson wrote.

Jordan's Principle aims to ensure all First Nations children can access the products, services and supports they need when they need them, with questions about which jurisdiction pays worked out afterward. 

The tribunal's order is among the latest developments in a complex complaint over Canada's chronic underfunding of on-reserve child and family services, which the tribunal ruled was racially discriminatory in 2016. It also ruled Canada wasn't respecting Jordan's Principle.

Adding to the uncertainty, Canada's report landed just a day after the Assembly of First Nations (AFN) said it's in no position to consult on the issue and asked the tribunal to extend all timelines, so they begin March 31, 2025.

The AFN cited recent chiefs' resolutions rejecting Ottawa's offer to settle the child and family services component of the complaint for $47.8 billion, to be spent over 10 years on program reform. 

Chiefs expressed concerns with the deal and voted to create a new Children's Chiefs Commission to lead the renegotiation at a special meeting in October.

"We would stress that this request is not being undertaken lightly," wrote AFN general counsel Stuart Wuttke on Dec. 9.

"However, in light of the scope of the resolutions and their potential impacts on AFN governance, resourcing and staffing, including the potential for the appointment of new legal counsel, it is essential that the AFN be provided with sufficient time to clarify its role and mandate in these proceedings moving forward."

Backlog doubled in a year

Amid all this, Canada is also blocking First Nations leaders in British Columbia from participating in the consultations, citing "practical reasons."

Asked why, ISC cited the "short timeline" imposed by the tribunal. But it's unclear why the B.C. group should be excluded if Canada wants to extend the timelines anyway and believes they aren't feasible.

Cheryl Casimer, chief of ʔaq'am, a Ktunaxa community about 500 kilometres east of Vancouver, and a political executive with the First Nations Summit in B.C., said Canada's reasoning "doesn't make any sense."

"What is the practical reason then?" Casimer said on Monday.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, anticipated Canada's response and staunchly opposes it.

"There's no excuse for any delays, and Canada is the offender in this situation," she said on Monday.

"It is the one that's breaching the orders, and it should not be given any latitude to dictate the terms."

Blackstock and the AFN filed the human rights complaint together in 2007 but they have since broken ranks on a few key issues. The Caring Society is "very concerned" by the AFN's request for a three-and-half-month extension, she said.

The Caring Society provided its formal position via letter to the tribunal on Monday, disagreeing with AFN's request and disputing AFN's characterization of the resolutions.

"AFN I think was directed by the chiefs and assembly last week to get its affairs in order to support the implementation of the resolution," said Blackstock.

The backlog itself doubled in size countrywide over the last year, an increase revealed in Canada's report to the panel. The report said the volume of requests had surged by over 300 per cent in the past five fiscal years.

Casimer said the backlog in B.C. stood at 2,000, which was true a year ago, according to the ISC report. The province's backlog today sits at nearly 11,000 requests.

In Ontario, the backlogged applications grew to 27,600 from around 11,000, while in Saskatchewan the queue grew to nearly 30,600 requests from about 19,700 over the last year — the biggest of all regions — according to the report.