Ottawa slammed for seeking judicial review on Canadian Human Rights Tribunal decision

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The federal government faced criticism on Tuesday from a First Nations advocate and the NDP for seeking a judicial review of a decision from the Canadian Human Rights Tribunal on expanding services to non-status First Nations children living off reserve.

Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society of Canada, said it is “beyond disappointing” that the federal government filed for the review just days before Christmas.

The government’s decision to seek the review was announced late Tuesday through a news release. It said a fall decision from the tribunal “was made without broad participation of First Nations communities and is a clear overreach of the tribunal’s jurisdiction.”

The tribunal has a statutory mandate to apply the Canadian Human Rights Act based on evidence presented and on case law. It was created by Parliament in 1977 and legally decides whether a person or organization has engaged in a discriminatory practice under the Act. The purpose of the CHRA is to protect individuals from discrimination and states all Canadians have the right to equality, equal opportunity, fair treatment and an environment free of discrimination.

In a November decision, the tribunal released findings to broaden criteria for what’s known as Jordan’s Principle. It said the criteria now include a child who is registered or eligible to be registered under the Indian Act, a child who has a parent or guardian registered under the Indian Act, a child recognized by their community for the purposes of Jordan’s Principle and a child who is ordinarily a resident on reserve.

Jordan’s Principle is named after Jordan River Anderson, a five-year-old boy who died in hospital in 2005 after a lengthy battle between the federal and Manitoba governments over home-care costs.

The federal government says the principle is designed to ensure First Nations children can access services and supports they need when they need them. Jordan’s Principle requires that children get access to services without delays caused by jurisdictional issues.

The government said Tuesday that legal issues around the scope of the tribunal’s authority to issue these decisions are important and it is seeking further guidance from the Federal Court.

Indigenous Services Minister Marc Miller also announced that “Canada will expand eligibility under Jordan’s Principle to children who are recognized as members by their nation regardless of where they live in Canada on an ongoing basis.”

“The tireless work of First Nations advocates, and the honoured memory of Jordan River Anderson, tells us that we must do better,” Mr. Miller said. “That is why we are taking these steps to make meaningful changes to Jordan’s Principle to help more First Nations children access the supports they need.”

The expanded eligibility for Jordan’s Principle for children recognized by their nations will remain in effect regardless of the outcome of the judicial review, the government added.

Ms. Blackstock said the federal government is appealing the very order from the tribunal that expanded the criteria for Jordan’s Principle. She also called Canada’s reasoning for the appeal “particularly offensive.”

“Canada says it filed the appeal because there was insufficient consultation with First Nations,” she said.

“This statement ignores the fact that AFN, the Chiefs of Ontario and Nishnawbe Aski Nation have been involved in this case for many years and that the Tribunal took pains to affirm the right of all First Nations to recognize their children versus relying on Canada’s racist Indian Act. Moreover, if Canada felt more consultation was required, it could have done it. It didn’t.”

Rachel Blaney, the NDP’s deputy critic for Indigenous Services and Crown Indigenous Relations, said she is also disappointed by the federal government’s decision.

She said the tribunal decision was about Indigenous children who are receiving substantively fewer resources than those living off reserve and other Canadian children.

“I think this is a disappointing method to take when the core issue is just about those resources.”

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