Court File No. T-1621-19 FEDERAL COURT B E T W E E N: ATTORNEY
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Court File No. T-1621-19 FEDERAL COURT B E T W E E N: ATTORNEY GENERAL OF CANADA APPLICANT/MOVING PARTY - and - FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA, ASSEMBLY OF FIRST NATIONS, CANADIAN HUMAN RIGHTS COMMISSION, CHIEFS OF ONTARIO, AMNESTY INTERNATIONAL and NISHNAWBE ASKI NATION RESPONDENTS/RESPONDING PARTIES MOTION RECORD OF THE RESPONDENT/RESPONDING PARTY ASSEMBLY OF FIRST NATIONS Volume 3 of 3 NAHWEGAHBOW, CORBIERE ASSEMBLY OF FIRST NATIONS Genoodmagejig/Barristers & Solicitors Stuart Wuttke David C. Nahwegahbow, IPC, LSM 55 Metcalfe Street, Suite 1600 Thomas Milne Ottawa, ON K1P 6L5 5884 Rama Road, Suite 109 T: (613) 241-6789 Rama, ON L3V 6H6 F: (613) 241-5808 T: (705) 325-0520 E: [email protected] F: (705) 325-7204 E: [email protected] E: [email protected] Co-Counsel for the Respondent/Responding Co-Counsel for the Respondent/Responding Party, Party, Assembly of First Nations Assembly of First Nations TAB 3 Court File No. T-1621-19 FEDERAL COURT B E T W E E N: ATTORNEY GENERAL OF CANADA APPLICANT - and - FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA, ASSEMBLY OF FIRST NATIONS, CANADIAN HUMAN RIGHTS COMMISSION, CHIEFS OF ONTARIO, AMNESTY INTERNATIONAL and NISHNAWBE ASKI NATION RESPONDENTS Affidavit of Jonathan Thompson (Affirmed November 8, 2019) I, JONATHAN THOMPSON, of the City of Ottawa, in the Province of Ontario, AFFIRM: 1. I am the Director of Social Development at the Assembly of First Nations and, in that capacity, I have personal knowledge of the matters to which I hereinafter affirm and wherever so stated I verily believe them to be true. 2. The Assembly of First Nations (hereinafter “AFN”) is a national advocacy organization representing First Nation citizens in Canada, which includes more than 900,000 people living in 634 First Nation communities and in cities and town across the country. The AFN is mandated to represent and protect the rights and interests of First Nations peoples in Canada, as set out in its Charter. The AFN has an office located at 55 Metcalfe Street, Suite 1600 in Ottawa, Ontario. 1 Introduction 3. As the Director of Social Development at the AFN, I have been involved in First Nations child welfare policy for many years prior to the filing of the Complaint in this matter. I also testified in the Tribunal hearing of this matter and have been heavily involved in the remedies stage following the Tribunal’s Decision that was issued in January 2016. 4. Under my direction, AFN’s Social Unit has been heavily involved in conducting research and advocating for changes in the federal government’s First Nations Child Welfare Program. Beginning in 1998 and concluding with the issuance of the National Policy Review in June 2000, the AFN highlighted substantial deficiencies and inequities in Canada’s Frist Nation Child Welfare Program. Of importance, the Report noted that the Department of Indian Affairs and Northern Development (DIAND) funding per capita per child in care was 22% lower than the average in selected provinces. The funding formula also did not provide a realistic amount of maintenance funding, in particular those small agencies serving lease than 801 children. 5. Canada was provided a copy with the findings of the National Policy Review and did not fully accept its recommendations or findings. Canada proposed additional joint work and research to verify the findings of the National Policy Review. Beginning in 2000, the AFN, First Nations Child and Family Caring Society of Canada (Caring Society) and DIAND began collaborative work on reviewing the First Nations Child and Family Services Program. 6. In 2005, a series of reports on the First Nations Child and Family Services program was released, the Wen:de Reports. This multidisciplinary research project brought together experts in First Nations child welfare, economics, management information systems, law, and social work. Findings indicated that First Nations children were over represented at every level of the child welfare decision making continuum including reports to child welfare, case substantiation rates, and admissions to state care. Research results found that First Nations child and family service agencies were inadequately funded in almost every area of operation ranging from capital 2 costs, prevention programs, standards and evaluation, staff salaries and child in care programs. The disproportionate need for services amongst First Nations children and families coupled with the under-funding of the First Nations child and family service agencies that serve them has resulted in an untenable situation. 7. In particular, the Reports took issue with the lack of prevention or least disruptive measures allowable under Canada’s First Nations Child and Family Services. In essence, in order for an on-reserve child welfare agency to get reimbursed for providing a service to a child in need, the child had to be placed into state care. This resulted in a perverse incentive that artificially placed tens of thousands of First nation children into care. 8. Despite the finding of the Wen:de Reports, Canada refused to undertake meaningful reforms to the program. As a result, on February 27, 2007 the AFN and Caring Society filed a complaint with the Human Right Commission alleging discrimination in the provision of a service. Since the filing of the human rights complaint, the Auditor General of Canada and others have issued reports on the Canada’s First Nations Child Welfare Program and recommended reforms. 9. The Canadian Human Rights Tribunal issued its landmark ruling in this matter on January 26, 2016 (2016 CHRT 2). The Tribunal found that the Complaint was substantiated; that First Nations children and families living on reserve and in the Yukon were denied equal child and family services and/or differentiated adversely in the provision of child and family services. The Tribunal has ordered Aboriginal Affairs and Northern Development Canada (AANDC) to cease its discriminatory practices and reform its policies to reflect the findings in this decision. AANDC was also ordered to cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan’s principle 10. The AFN, the Caring Society and the interested Parties have made many recommendations to assist Canada in complying to with the decisions of the Tribunal. 3 11. When Canada was unwilling or unable to fully comply with the Tribunal’s directions, the AFN participated in various non-compliance motions with the Tribunal to compel Canada to end its discriminatory conduct. The Tribunal has issued seven subsequent non-compliance orders against Canada as follows: 2016 CHRT 10; 2016 CHRT 16; 2017 CHRT 7; 2017 CHRT 14; 2018 CHRT 4; 2019 CHRT 7; and 2019 CHRT 39. 12. Sadly, I believe and understand that the discrimination in the FNCFS Program and its shortcomings that were identified in the Tribunal’s decision are continuing due to the Respondent’s failure to address, explore and reform the FNCFS Program with the AFN. AFN Charter and Mandate 13. The AFN was established pursuant to and operates under its Charter, under which the principal objects are: a. To protect our succeeding generations from colonialism; b. To reaffirm our faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of our First Nations large and small; c. To establish conditions under which justice and respect for the obligations arising from our international treaties and from international law can be maintained; and d. To promote social progress and better standards of life among our peoples. AFN Resolutions 14. The AFN derives authority from specific mandates provided through resolutions from the First Nations Chiefs-in-Assembly. The mandates and resolutions are made pursuant to the AFN’s broader Charter objectives. They are passed by the First Nations-in-Assembly, a body comprised of all the 634 Chiefs of the Frist Nations across Canada. 4 15. In December 2006, Resolution No. 53/2006 was passed by the Chiefs Assembly on consensus which approved the AFN to submit a joint complaint with the First Nation Child and Family Caring Society (hereinafter “Caring Society”) to the Canadian Human Rights Commission regarding the inequitable levels of child welfare funding provided to First Nations children and families on reserve. The human rights complaint was later filed in February 2007. A copy of Resolution No. 53/2006 is attached to my affidavit at Exhibit “A”. 16. In July 2016, the Chiefs-in-Assembly discussed Canada’s lack of progress in implementing the remedies as ordered in the Tribunal’s Decision, 2016 CHRT 2, issued on January 26, 2016. A resolution 62/2016 entitled “Full and Proper Implementation of the historic Canadian Human Rights Tribunal decisions in the provision of child welfare services and Jordan’s Principle” was discussed and passed. The resolution calls upon the Government of Canada to take immediate and concrete actions to implement and honour the Canadian Human Rights Tribunal findings in its decision, 2016 CHRT 2, and all subsequent orders, and to implement Jordan’s Principle across all First Nations and all federal government services. It also calls upon the Government of Canada to honour its commitment to fully implement the Truth and Reconciliation Commission’s recommendations. A copy of Resolution No. 62/2016 is attached to my affidavit as Exhibit “B”. 17. Later, in December 2016, the AFN’s Special Chiefs’ Assembly was held, and Resolution No. 83/2016 was passed to express the deep concern by all First Nations across Canada regarding Canada’s failure to immediately and fully comply with the Canadian Human Rights Tribunal’s decisions. Resolution No. 83/2016 affirms the National Advisory Committee (NAC) and associated Regional Tables proposed by the AFN and the Caring Society to be the legitimate process to provide advice to the Chiefs and Federal Government on reforming the FNCFS Program and implementation of Jordan’s Principle.