Caring Society’s March 24, 2025, submission to the Tribunal on long-term reform
Press Release
March 24, 2025
Judy Dubois
Registry Operations
Canadian Human Rights Tribunal
240 Sparks Street, 6th Floor West
Ottawa, ON K1A 1J4
Dear Ms. Dubois,
RE: First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada- T#1340/7008
The First Nations Child and Family Caring Society (the “Caring Society”) writes further to the Panel’s direction of February 10, 2025, and in response to Canada’s submission of March 17, 2025, regarding the long term reform phase of this human rights complaint. It has been over nine years since the Merits Decision and much has been accomplished. The Tribunal’s retention of jurisdiction remains essential, at this time, to ensuring that Canada’s discriminatory conduct is eradicated from child and family services and Jordan’s Principle and is not repeated for future generations.
First Nations-in-Assembly, the National Children’s Chiefs Commission (the “NCCC”), and the Caring Society are ready, along with the research regarding First Nations child and family services (“FNCFS”) and Jordan’s Principle, to build, through dialogue with Canada, an enduring end to Canada’s discriminatory conduct and ultimately resolve the complaint. Yet without Canada at the table, we cannot move forward. To this end, the Caring Society’s view on the issues raised by the Panel in its February 10, 2025 letter centres on requiring Canada to consult on long-term reform solutions that are grounded in the evidence, which is now ready, with the co-complaints, and with the NCCC. Canada’s suggestion that the Ontario Final Settlement Agreement form the basis for national long term reform of FNCFS is wholly inappropriate, given that many of the terms therein were considered and ultimately rejected by First Nations outside of Ontario.
1) First Nations and the National Children’s Chiefs Commission are Ready
In October 2024, First Nations-in-Assembly passed resolutions directing a reset of work towards long-term reform, including the establishment of the NCCC and the inclusion of the Caring Society in FNCFS and Jordan’s Principle negotiations and long-term reform. Since October 2024, the Caring Society has been working with technical experts across Canada to support the implementation of the direction of First Nations-in-Assembly, including collaboration with the NCCC when requested.
The First Nations-in-Assembly resolutions set out clear direction for FNCFS reform, guided by the NCCC, that is informed by evidence and protects First Nations children from discrimination now and forever. This is reflected in the correspondence from Chief Frost, the NCCC’s Chair, to former Prime Minister Trudeau and Ministers Hajdu and Anandasangaree dated January 24, 2025 and follow-up correspondence to Prime Minister Carney on March 19, 2025. Through collective decision-making and affirmed resolutions, First Nation leaders have called for the development of a national umbrella agreement, with regional agreements that take full account of the distinct circumstances, cultures and the inherent rights of the children and the First Nations they belong to. First Nations-in-Assembly were clear in their expectations of a nation-to-nation relationship with the government of Canada and have repeatedly insisted on the importance of Canada fulfilling its obligations under the United Nations Declaration of Indigenous People, the honour of the Crown and asserting their right to Free, Prior and Informed Consent.
The Caring Society supports the approach set forth by the First Nations-in-Assembly and is confident that if (and when) Canada returns to the table in good faith, consistent with direction of the First Nations-in-Assembly, First Nations children, youth and families will be protected from discrimination now and into the future. Canada’s refusal to continue consultations and meaningfully engage in the dialogic approach to end discrimination for all First Nations children evidences the need for the Tribunal to maintain its jurisdiction in this regard.
2) The Research is Ready
The Tribunal has consistently cautioned the Parties that it will not make orders absent strong and reliable evidence. In 2022 CHRT 41, the Tribunal stated that it will not make final orders in relation to long-term reform absent clear and cogent evidence supporting the options presented by the parties. As the Tribunal stated:
503) The case is quite different with long-term reform where not all issues have been adjudicated by the Tribunal. The Tribunal supports First Nations-led solutions to eliminate discrimination if the evidence advanced proves to eliminate the systemic discrimination found in an effective and sustainable manner that responds to the specific needs of First Nations children, families and also communities. The Tribunal reminds the parties that it is a Tribunal created by statute with a mandate to eliminate discrimination in Canada once findings are made, always based on evidence and not opinion. The Tribunal is still seized of the matter and will need to make findings before ending its jurisdiction to ensure the racial and systemic discrimination is eliminated and does not reoccur.
The First Nations parties’ expertise is key in this important task.
517) […] Canada cannot contract out the Tribunal’s quasi-constitutional responsibility to eliminate the discrimination found and prevent similar discriminatory practices from arising. It has to occur after an evidence-based finding that satisfies the Tribunal that discrimination is eliminated and prevented from reoccurring or on consent of all, not just some, parties in the Tribunal proceedings and based on compelling evidence that the systemic racial discrimination will be eliminated. […] [Emphasis added]
In 2022 CHRT 8, the Tribunal granted the IFSD Jordan’s Principle consent orders on the basis that the evidence and solutions to be identified in the research will support the long-term reform of Jordan’s Principle, entrenching safeguards that will prevent the recurrence of discrimination:
⦁ In her March 4, 2022, affidavit, Dr. Blackstock affirms that: […]
⦁ Research to inform evidence-based long-term reform recommendations for Jordan’s Principle will be critical to ensuring that Jordan’s Principle is equitable, sustainable, accessible and that Canada is held accountable for the full and proper implementation of the Tribunal’s orders. The Caring
Society strongly believes such research must inform a longer-term funding approach for Jordan’s Principle that embeds the Measuring to Thrive framework indicators for children, families, and communities to promote more holistic and seamless funding. We also see value in underpinning
Jordan’s Principle with the Spirit Bear Plan, given the large number of Jordan’s Principle requests that relate to formal equality.
⦁ Further:
⦁ IFSD has agreed to take on this Jordan’s Principle research and, pursuant to this consent motion, Canada has agreed to fund it.
⦁ The Panel agrees with the Caring Society and finds this is in line with the
Panel’s approach, findings and orders to eliminate systemic discrimination and prevent the same or similar discriminatory practices to emerge. Moreover, recently filed evidence in support of this motion substantiates Dr. Blackstock’s assertions. The Panel finds this order is necessary to achieve evidence-based meaningful and sustainable long-term reform informed by the real needs of children, youth and families. This is consistent with the Panel’s orders to provide services according to the First Nations children’s real needs. [Emphasis added]
More recently, in 2025 CHRT 6, the Tribunal has underscored its expectations for evidence-informed long-term reform:
237) The ultimate objective is to achieve sustainable long-term reform informed by the many studies, expert committees, First Nations, the parties, etc. for generations to come. The Tribunal has always hoped for a settlement
on long-term reform by way of consent order requests, if possible, similar to the compensation settlement agreement for both Jordan’s Principle and the FNCFS Program. However, if this is not possible, the Tribunal can make systemic long-term orders informed by the parties to eliminate the systemic discrimination found. This is not optimal without the expert input of the parties including the First Nations Chiefs’ knowledge and decisions expressed in the Chiefs-in-Assembly resolutions.
⦁ The Tribunal consistently found that reform must reflect the specific different needs of First Nations and that they are best positioned to determine what this should look like in the long-term.
⦁ FNCFS Research and Collaboration
The Institute of Fiscal Studies and Democracy (“IFSD”) has now completed its final phase of research in relation to FNCFS. In December 2018, IFSD’s Phase 1 report, Enabling First Nations Children to Thrive, made eight recommendations for funding and structural changes to the FNCFS program, as well as three recommendations for further research. Following the acceptance of IFSD’s report by the National Advisory Committee (the “NAC”), IFSD was asked to undertake further research to identify options and plans for a change in structure and resources in FNCFS to transition agencies to an outcome-based approach based on well-being for thriving First Nations children.
In July 2020, IFSD’s Phase 2 report, Funding First Nations child and family services (FNCFS): A Performance Budget Approach to Well-Being, proposed a new funding mechanism for FNCFS as well as an updated framework on child, family, and community well-being, Measuring to Thrive.
On March 3, 2025, IFSD shared the pre-production draft and executive summary of the final Phase 3 report.1 Phase 3 focuses on the delivery of well-being for First Nations, families, and children and builds on previous phases of work (Phases 1 and 2), setting out discrete First Nation-based delivery models that transform organizational strategy, people, process, and systems.
In order to safeguard small population First Nations from disadvantage arising from population driven funding levels, the Caring Society, without funding or support from Canada, has contracted Engage First to analyze the funding needs of five small population First Nations contemplating or in the process of exercising jurisdiction over child and family services. Through qualitative and quantitative analysis, the study seeks to illustrate an evidence-based cost structure for small population First Nations to deliver the continuum of child and family services. This study will include data gathering and analysis of current and future operations, including First Nations’ jurisdiction and delivery of child and family services, delivery of prevention, protection, and post majority supports
1 Interim update: First Nations child and family services (FNCFS) – Phase 3 https://ifsd.ca/wp-content/uploads/2025/03/2025-02-28_Pre-Production-Draft-1.pdf
and services, as well as First Nations’ business functions, including governance, service delivery, corporate operations, financial management, and operating costs. A final report with independent and objective analysis is expected by March 31, 2025.
The Caring Society has also been working collaboratively with the NCCC to build a pathway for sustainable and durable long-term reform. As set out in the letter of January 24, 2025, from Chief Frost (attached as Exhibit H to the affidavit of Amber Potts, dated March 3, 2025) progress is being made by the NCCC to prepare for a full engagement on the long-term reform of both FNCFS and Jordan’s Principle. Moreover, on March 19, 2025, the NCCC wrote to the new Prime Minister, the Right Honourable Mark Carney, who was sworn in as Prime Minister on March 14, 2025, setting out a pathway forward on long-term reform, and included specific and targeted solutions to improving the draft final settlement agreement that was presented to the First Nations-in-Assembly in July 2024.2 The Caring Society is strongly of the view that change, progress and lasting long-term reform is possible if Canada returns to the table.
b) Jordan’s Principle Research and Collaboration
The IFSD has been contracted by the Caring Society to undertake additional research on Jordan’s Principle, pursuant to 2022 CHRT 8. The work undertaken by IFSD includes proposing options for the long-term sustainability of Jordan’s Principle through the: (i) development of a policy framework (e.g., approach to measuring/monitoring outcomes for children, evaluating Jordan’s Principle, etc.); (ii) review of existing programs and services; (iii) definition of options and considerations for reforming the operationalization of Jordan’s Principle; and (iv) financial analysis and costing of the baseline and any proposed reforms.
On March 3, 2025, IFSD shared its interim briefing on Jordan’s Principle: Considerations for the sustainability of Jordan’s Principle.3 Their final report is anticipated in April 2025. This research will be critical to formulating a long-term approach to Jordan’s Principle, particularly given IFSD’s findings to date, which include:
⦁ the current national administration of Jordan’s Principle is untethered to the goal of substantive equality or the needs of children (p. 2);
⦁ there is a need to reform data collection as the data gathered by ISC is “insufficient to demonstrate results for children or identify gaps in program areas” (p. 2);
⦁ the largest share of all requests are for amounts below $5,000, and almost half (45%) are for $1,000 or less (p. 10); and
2 March 19, 2025 letter from the NCCC to the Prime Minister, attached as Schedule “A”.
2 Interim update: interim briefing: Considerations for the sustainability of Jordan’s Principle, attached as Schedule “B”.
⦁ poor implementation of Jordan’s Principle is linked to administrative and operational considerations, requiring “clearer guidelines and tools” (p. 28).
IFSD has identified three clear considerations for improving the administration of Jordan’s Principle: (i) reform ISC’s intake process in a manner consistent with the goals of consistency and decency; (ii) invest in new technology; and (iii) focus on the First Nations child when gathering data. This research well-positions the Parties to begin their work on long-term reform for Jordan’s Principle.
The Parties have been intensively meeting in relation to the Jordan’s Principle mediation, in keeping with the direction of the Tribunal in 2025 CHRT 6. While the Caring Society is hopeful that an update will be provided to the Panel shortly, the Caring Society remains concerned that ISC has made little to no progress to remedy the service approval backlog to bring relief to children families who are waiting and has been unable to report on its reimbursement backlog, which is causing financial hardship to First Nations families and organizations that support them.
Although ISC unilaterally paused the meetings of the Jordan’s Principle Operations Committee (“JPOC”) after the Caring Society filed its non-compliance motion in December 2023, the committee has met four times in 2024 and 2025 (April 2024, May 2024, July 2024 and February 2025). Responding to a call from the Caring Society and other Parties, ISC has also planned for meetings throughout 2025. This development is welcomed by the Caring Society, with a view to ensuring that JPOC has the capacity to implement meaningful solutions as envisioned by the First Nations-in-Assembly’s resolutions.
The Caring Society (on February 13, 2025 and March 7, 2025) and the Assembly of First Nations (“AFN”) (on March 7, 2025) have also engaged directly with ISC regarding concerns about the information it shared in its Jordan’s Principle Operational Bulletin on February 10, 2025 and changes made to the ISC Jordan’s Principle website.4 During active mediation, ISC unilaterally issued the bulletin and further measures on its website without consulting the Caring Society or the Parties. Both the Operational Bulletin and the website are vague and confusing, purporting to introduce new restrictions on Jordan’s Principle that are not in keeping with the Tribunal’s orders while at the same time suggesting Canada will consider, without any details, substantive equality. Such changes include requiring requestors to provide, for all requests, detailed cost breakdowns, proof of gaps in services or substantive equality considerations, as well as personally intrusive information such as assessments, official diagnoses, and treatment plans. This approach places the burden of proving Canada’s discrimination back on the shoulders of its victims and is inconsistent with the Tribunal’s recent affirmation in 2025 CHRT 6 of the presumption of substantive equality. ISC has also removed Elders and traditional healing as examples of eligible supports and services available to First Nations children and has
4 Versions of the ISC Jordan’s Principle website as at January 16, 2025 and February 10, 2025 are attached as Schedule “C1” and “C-2”.
limited land-based activities and specialized programs based on cultural beliefs and practices to requests on-reserve only. The Operational Bulletin also appears to retroactively apply to requests that have not been processed, including those currently in the backlog. The Caring Society has raised concerns that this amounts to shifting goalposts, is procedurally unfair and risks further delaying or denying services to children. Both the Caring Society and the AFN have communicated their opposition to ISC’s bulletin and website changes.
c) The Expert Advisory Committee
Pursuant to 2022 CHRT 8, the Expert Advisory Committee (the “EAC”) is comprised of highly respected and leading experts in various fields, including Indigenous knowledge and culture, as well as legal, public finance, historical and academic experts.
In their interim report,5 the EAC shared their frustration with the slow progress to date and highlighted the limitations of attempting to advance an independent forum for the EAC to complete their work. As a result of the differing positions on the role of the EAC, the EAC’s terms of reference have not been approved by the AFN and Canada, and the EAC has not met with the Parties since April 2024.
Despite these challenges, the EAC remains deeply committed to supporting First Nations children and ensuring that discrimination does not recur:
We are a group of people deeply concerned about the well-being of First Nations children and families, and we want to help. We want our relationship with Canada and the other parties to be fruitful. We do not want to give up on the promise of this expert advisory committee, nor do we want the parties to give up on us (EAC interim report, pg. 12).
The Caring Society highly values the EAC’s expertise and is confident that once the process of consultation is underway, the EAC will be an invaluable tool to ensure that Canada’s discriminatory conduct within the government structure will not be repeated for First Nations children.
3) The Caring Society is Ready
The Caring Society remains deeply committed to giving effect to the Panel’s orders and the First Nations-in-Assembly resolutions (i.e.: 40/2022, 60/2024, 61/2024, 88/2024, 89/2024, 90/2024) by working with the AFN Executive, the NCCC, First Nations technical experts and others. The Caring Society has repeatedly demonstrated its commitment to providing evidence-informed solutions in an accountable and transparent manner. The
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