Paul Allen

Inequitable and insufficient funding for services for Indigenous children and youth

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by

Paul
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“We have a program called I Am a Witness, where we invite everyone to read and watch all of Canada’s documents, read and watch all of ours, and then make up your own mind.” – Cindy Blackstock, Keynote Address to Canadian Alliance to End Homelessness, November 4, 2019.

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Canadian Human Rights Tribunal

The First Nations Child and Family Caring Society of Canada (FNCFCS) has worked tirelessly for many years to secure equitable and sufficient funding from the Canadian government for services for Indigenous children and youth and their families. Along the way, the FNCFCS has maintained a publicly-available repository of documents related to proceedings of the federal courts, the Canadian Human Rights Tribunal, and other bodies. The repository is an invaluable resource for anyone wishing to trace this difficult journey toward justice or to understand the facts and issues at play in detail. Readers who wish to enter the repository at a few key points are referred to:

  • 2016 CHRT 2 (the Decision), where the CHRT found that Canada was denying First Nations equal child and family services and ordered immediate relief
  • 2018 CHRT 4, where the CHRT found that Canada had failed to provide immediate relief to First Nations children and youth
  • 2019 CHRT 39, where the CHRT decided a Compensation Entitlement of First Nations children and youth.

The bulk of the FNCFCS’s repository is published below, separating the Pre-trial tribunal history and the Trial and post-trial tribunal history.

Pre-trial tribunal history

With the exception of self-governing First Nations and Spallumcheen First Nation, provincial/territorial child welfare laws apply both on and off reserves but the provinces and territories expect the federal government to pay for services on reserves. When the federal government does not do so, or does so to a lesser standard, the provinces do not typically top it up resulting in a two tiered child welfare system where First Nations children get inequitable services.

In 2007, the First Nations Child and Family Caring Society and the Assembly of First Nations filed a complaint pursuant to the Canadian Human Rights Commission alleging that the federal government, as represented by the Minister of Indian and Northern Affairs [INAC], racially discriminates against First Nations children by providing less child welfare benefit on reserves.

This complaint was filed as a last resort after a decade of joint work between First Nations and INAC to document the inequality and develop solutions to redress it failed to inspire the federal government to address the inequity.

The following time line sets out important reports and activities since 1990 leading up to the filing of the human rights complaint in 2007 [See the FNCFCS’s complete timeline].

1990INAC receives Cabinet and Treasury Board authority to implement its First Nations child and family services policy including Directive 20-1. The Directive requires that services delivered on reserve must be culturally appropriate and reasonably comparable to those delivered off reserve in similar circumstances.
1991INAC implements its national First Nations child and family services policy including Directive 20-1. Directive 20-1 provides funds for First Nations child and family service agencies in two streams: 1) maintenance and 2) operations. The formula also has an adjustment for inflation, child population and remoteness. Maintenance is intended to cover the costs of children placed in child welfare care. Operations was originally intended to cover a limited number of items related to the costs of running an agency and providing very limited prevention services. First Nations express concern that the structure and amount of funding in Directive 20-1 were problematic but INAC implements it anyway. See pp. 83-84 of the NPR (see below) for a complete list of items originally included in the operations formula.
1990sFirst Nations continue to raise concerns with INAC that the level of funding and structure of funding in Directive 20-1 fettered culturally appropriate and equitable child and family services on reserves.
1995INAC unilaterally stops providing the inflation adjustment contained in Directive 20-1 for First Nations child and family services agencies.
1999INAC and the Assembly of First Nations convene, and co-chair, the First Nations Child and Family Services Joint National Advisory Committee to oversee a review of Directive 20-1.
2000INAC and the Assembly of First Nations release the First Nations Child and Family Services Joint National Policy Review: Final Report, June 2000 [NPR] (McDonald & Ladd, 2000). The NPR found that First Nations children received 22 percent less funding for child welfare than other children. It also identified significant problems with the structure of the formula including the lack of emphasis on least disruptive measures services and the lack of funding, or insufficient funding, of expenses that are required to achieve good, equitable and culturally appropriate social work practice. Additional recommendations called for the restoration of the inflation adjustment, the resolution of jurisdictional disputes between and within federal/provincial governments impeding services to First Nations children and a call for a special review of the 1965 Indian Welfare Agreement. Read the NPR report.
2000INAC and the Assembly of First Nations convene, and co-chair, the National Advisory Committee on First Nations Child and Family Services [NAC] to oversee the implementation of the NPR recommendations. A work plan was developed identifying short, medium and long term implementation goals. INAC makes little progress in implementing the NPR recommendations over the next four years.
2004INAC internal document obtained under access to information confirms that “ the lack of in-home family support for children at risk and inequitable access to services have been identified by First Nations Child and Family Services Agencies, and INAC, as important contributing factors to the over-representation of First Nations children in care.” Read the entire document.
2004NAC commissions the First Nations Child and Family Caring Society of Canada to complete two reports one on least disruptive measures (Shangreaux, 2004) and the other on crisis response in First Nations communities (Irvine, 2004). Read the reports: Staying at home: examining the implications of least disruptive measures in First Nations child and family service agencies (2004) Crisis response in First Nations child and family services (2004).
2004NAC commissions the First Nations Child and Family Caring Society of Canada to complete a detailed review of INAC’s First Nations child and family services policy and to provide recommendations for improvement. The research project was overseen by NAC and completed in three stages documented in three reports. The first report was completed in 2004 by Dr. Fred Wien. It confirmed that First Nations child and family service agencies continued to express significant concerns about the impact of Directive 20-1 on child welfare practice.Read the report: Bridging Econometrics with First Nations child and family service agency funding: phase 1 report (2004).
2005NAC oversees the First Nations Child and Family Caring Society of Canada in the completion of two more phases of the research project initiated in 2004. The First Nations Child and Family Caring Society of Canada retained a team of over 20 researchers to conduct a holistic and detailed review of INAC’s First Nations child and family services policy and to develop recommendations for improvement. The researchers had expertise in economics, child welfare, community development, sociology, management, management information systems, and law. Principle investigators for the research project [known as the Wen:de reports] were Dr. Fred Wien, Dalhousie University; Dr. John Loxley, University of Manitoba and Dr. Nico Trocme, University of Toronto and McGill University.
2005The NAC approves two reports prepared by the First Nations Child and Family Caring Society documenting the research findings and recommendations. The first report entitled “Wen:de: we are coming to the light of day” presents the research conducted in order to inform the development of a new funding formula and policy improvements which are set out in the second report “Wen:de: the journey continues.” The reports confirm earlier findings of the NPR identifying key flaws and inequities in INAC’s First Nations child and family services policy and recommends an additional minimum investment of 109 million per annum (excluding Ontario and the Territories) structures in specific ways to address the inequity and support culturally appropriate services. Among the policy recommendations is Jordan’s Principle which is a child first principle to resolving jurisdictional disputes impeding First Nations children from accessing government services. Learn more about Jordan’s Principle here. Read the Wen:de Reports:Wen:de: We are coming to the light of day (2005) Wen:de: The journey continues (2005).
2006INAC provides some funds to redress the inflation losses incurred by First Nations child and family service agencies between 1995-2005. The amount provided is estimated to be less than a third of what was needed. Progress on the implementation on the other recommendations of the Wen:de reports are negligible despite Canada running a 22 billion dollar surplus budget.
2006Concerned with the lack of progress by INAC in implementing the Wen:de recommendations, at their December meeting the Chiefs in Assembly at the Assembly of First Nations unanimously pass resolution 53/2006 authorizing the Assembly of First Nations and the First Nations Child and Family Caring Society of Canada to file a human rights complaint against the Government of Canada for failing to provide equitable and culturally appropriate child and family services on reserves.
2007In February of 2007, National Chief Phil Fontaine, Assembly of First Nations publically announces the filing of \the Canadian Human Rights Complaint against the Government of Canada (including \INAC) alleging racial discrimination against First Nations children resulting from the Government of Canada’s First Nations child and family services program.
2007Auditor General of Canada begins review of INAC’s First Nations child and family services program and partners with the Auditor General of British Columbia to better understand how relationships between INAC and the provinces influence First Nations child and family service delivery on reserve.
2007INAC discontinues funding to the Assembly of First Nations for the National Advisory Committee.
2007INAC develops the “enhanced funding approach” which is a modified form of Directive 20-1 including a new funding stream for First Nations child and family services. There is no publically known evidence base to support the enhanced funding approach. INAC tells First Nations agencies in Alberta to take the “enhanced funding approach” or retain your current funding arrangements. INAC unilaterally took the implementation of Wen:de or other evidence based approaches off the table. The enhanced funding approach is implemented in Alberta and INAC begins providing it as the exclusive alternative to Directive 20-1 to selected provinces across the country despite First Nations expressing concern with the structure of funding and amount of funding provided under enhanced.
2007Member of Parliament, Jean Crowder (NDP) tables Private Members Motion 296 in support of Jordan’s Principle. On December 12, 2007, Jordan’s Principle passes unanimously in the House of Commons.
2007INAC posts this webpage fact sheet on First Nations child and family services confirming that their funding policy is linked to growing numbers of First Nations children in child welfare care and First Nations child and family service agencies being unable to meet their mandated responsibilities. Read the INAC fact sheet.
2008Auditor General of Canada releases her report on First Nations Child and Family Services in May of 2008. The report finds that INAC’s First Nations child and family services program (including the Directive, the 1965 Indian Welfare Agreement and INAC’s enhanced funding arrangement are inequitable). INAC agrees with the Auditor General’s Report. Read the report.
2008Federal officials begin trying to narrow Jordan’s Principle from applying to all federal government services to only apply to children with complex medical needs and multiple service providers even though there is no language authorizing a narrowing of Jordan’s Principle in Motion 296.
2008Premier Gordon Campbell of the Province of British Columbia endorses Jordan’s Principle across all government services.
2008Manitoba adopts a very narrow interpretation of Jordan’s Principle that in the view of the First Nations Child and Family Caring Society of Canada fails to address the impacts of jurisdictional disputes on First Nations children in Manitoba across all government services. Read more here.
2008Canadian Human Rights Commission refers the human rights complaint to the Canadian Human Rights Tribunal for a full hearing.
2009House of Commons Standing Committee on Public Accounts conducts hearings with INAC and the Auditor General of Canada on INAC’s implementation of the recommendations made by the Auditor General of Canada in her May 2008 report. In its concluding statement the Committee notes “continuing to use a flawed funding formula means that First Nations child and family service agencies are often under – funded and First Nations children and families do not get the services they need.” Read the report.
2009Ontario adopts Jordan’s Principle in health and social services.
2009Saskatchewan adopts a very narrow interpretation of Jordan’s Principle that in the view of the First Nations Child and Family Caring Society of Canada fails to address the impacts of jurisdictional disputes on First Nations children in Saskatchewan across all government services.
2010INAC continues to promote the enhanced funding formula as the exclusive alternative to Directive 20-1 despite the concerns raised by the Auditor General of Canada in 2008 and the Standing Committee on Public Accounts in 2009 and INAC’s own draft evaluation conducted in Alberta confirms there are significant concerns with the approach. The enhanced funding approach is now applied in Alberta, Saskatchewan, Quebec, Nova Scotia and PEI (even though there are no First Nations child and family service agencies in PEI). Directive 20-1 continues to be applied in B.C., New Brunswick and Manitoba. The 1965 Indian Welfare Agreement continues to be applied in Ontario and the NPR recommendation made in 2000 to conduct a special review of the 1965 Indian Welfare Agreement has never been implemented.

Trial and post-trial tribunal history

The timeline below chronicles the Canadian Human Rights Tribunal (CHRT) case on inequitable funding for First Nations child welfare. View the pre-trial tribunal timeline above for the history leading up the case.