Assembly of First Nations May 17, 2024 Factum
Press Release
. OVERVIEW
1. The Assembly of First Nations (“AFN”), a co-complainant in these proceedings, files these written submissions further to the motion filed by the First Nations Child and Family Caring Society (the “Caring Society”) on December 13, 2023, alleging non- compliance with the Tribunal’s existing orders relating to the meaning and implementation of Jordan’s Principle (the “Non-Compliance Motion.”)1
2. Further to the direction of the Tribunal2, the within submissions speak only to the Caring Society’s Non-Compliance Motion, accounting for materials filed by the Caring Society in support of the motion, the Attorney General of Canada’s (“Canada”) responding materials, as well as the written submissions of the Canadian Human Rights Commission.
3. The AFN acknowledges that challenges exist in the delivery of Jordan’s Principle, particularly in relation to the substantial and increasing volume of Jordan’s Principle requests that reflect the deep, systemic gaps and barriers to accessing federal supports elsewhere.3 The AFN has first-hand knowledge of issues with the delivery of services under the Jordan’s Principle Back-to-Basics policy, including the problems associated with compliance with Tribunal’s mandated timelines in relation to urgent matters4; difficulties in applicants contacting Indigenous Services Canada (“ISC”) officials5; the backlog on intake and the adjudication of applications6; as well as delays in the payment to service providers.7
4. However, in considering such issues, the AFN is cognizant of the impacts of the Back-to-Basics policy developed by the Caring Society and Canada by way of an iterative process, which was adopted by Canada as an interim measure pending completion of a final settlement agreement in relation to the reform of Jordan’s Principle. Our understanding was that it was intended to put the needs of First Nations children at the centre of service
delivery.8 The completion of Back-to-Basics was contemplated in the context of a Jordan’s Principle work plan, which was appended to the Agreement-in-Principle reached between the Parties to the Tribunal Proceedings on December 31, 2021 (“AIP”).9
5. For the AFN, the true path to implementation of the full breadth of Jordan’s Principle is properly the subject matter of negotiations, further to terms agreed upon in the AIP, which noted that the Parties thereto would work together to develop an evidence informed implementation approach for the long-term reform of Jordan’s Principle.10 Such an approach is consistent with the directions of the Tribunal, and the ongoing statements of the Courts emphasizing negotiation as a means to advancing reconciliation.
6. The AFN submits that the Tribunal’s consideration of Canada’s current implementation of Jordan’s Principle must duly consider all the contextual realities, including the exponential increase in Jordan’s Principle requests, particularly those identified as urgent, and the fact that many of the issues identified are associated with Canada’s adoption of the interim Back-to-Basics policy. Many of the implementation concerns identified within this motion are properly the subject of ongoing negotiations relating to reforming the long-term implementation of Jordan’s Principle.
7. While some clarifications with respect to the Tribunal’s existing orders may be required to ensure that truly urgent matters are duly and expeditiously addressed, and that service providers are reimbursed on a timely basis, any such related orders should be considered interim and ending on a specific date pending the completion of a final settlement agreement on the long-term reform of Jordan’s Principle.
II. FACTS
a) Initial Discussions on Jordan’s Principle Reforms
8. Shortly after this Panel issued its Merits Decision, the AFN and Canada engaged in discussions and explored options for the reform of Jordan’s Principle.11 One concept explored with Canada was the potential to provide funding directly to First Nations governments to enable them to approve Jordan’s Principle applications for their citizens.12 This would enable First Nations to directly access services from providers for their children
or enter into contracts with an array of professionals to meet the needs of community members.13 Under this model, a First Nations person would be able to approach their First Nation government for a Jordan’s Principle request. First Nation governments would have the ability to approve these Jordan’s Principle requests and pay for the services, products, or treatments directly. This potential exploratory model was consistent with self-determination and would alleviate the volume of requests filed with the federal government.
ILR4
