Canadian Human Rights Tribunal facing loaded question of First Nations identity

The Canadian Human Rights Tribunal is facing the complex and historically loaded question of defining First Nations identity over a motion concerning Jordan's Principle.

The issue surfaced during a tribunal hearing Wednesday. The First Nations Child and Family Caring Society is seeking an interim order forcing Ottawa to cover non-status First Nations children living off-reserve who require urgent health care under Jordan's Principle.

Under Jordan's Principle, the needs of a First Nations child requiring a government service take precedence over jurisdictional issues around which level of government pays for it.

The principle was adopted by the House of Commons in 2007.

The hearing is part of the sprawling and ongoing case following the 2014 ruling by the tribunal which found Ottawa discriminated against First Nations children by underfunding on-reserve child welfare services and by failing to apply Jordan's Principle.

Cindy Blackstock, head of the First Nations Child and Family Caring Society, who launched the human rights complaint that led to the ruling, brought Wednesday's motion before the tribunal.

The society argued that Ottawa was rejecting claims from First Nations children based on their lack of status.

"This motion is also about Canada's refusal to give the benefit of the doubt to children who do not have Indian status, who do not live on reserve," said David Taylor, the lawyer for the society.

"Canada is relying on colonial concepts of the Indian Act."

Dispute over 'urgent'

At issue was Indigenous Services Canada's decision — through the Non-Insured Health Benefits Program — to deny funding for a 20-month-old Toronto girl to travel to Edmonton and undergo a diagnostic scan available in only three places in the world.  

The girl, identified as M.J. in tribunal filings, has congenital hyperinsulism — her pancreas creates too much insulin —and the scan was needed to help doctors determine whether part or all of the pancreas needed to be removed in surgery.

The girl's mother and grandmother have Indian status, but the girl does not. The society ended up paying about $6,000 for the family's travel and accommodation in Edmonton.

Ottawa argued during the hearing that the procedure did not qualify as "urgent" medical care.

Taylor said Ottawa was failing to follow the tribunal's ruling which made no distinction between status and non-status First Nations children.

Taylor also said that, according to the Supreme Court, Ottawa has a fiduciary duty to status and non-status First Nations people.

Taylor said the society wants the interim order to last until the tribunal makes a final determination on the definition of a First Nations child.

AFN has concerns

Hearings on the issue are scheduled to begin Feb. 6.

The Assembly of First Nations, which backed Blackstock with her human rights complaint, expressed concern that the society was pushing too broad a definition of a First Nations child in its motion.

"We do have some concern with a definition that is so broad that anyone can jump in," said the AFN's lawyer Stuart Wutke, during the hearing.

In a separate interview, Wutke said the concern stems from the society's inclusion of "self-declared" First Nations children.

Blackstock said in an interview that if a child is self-declared and is recognized by a First Nation, then they should qualify.

However, Blackstock said there needed to be a mechanism for the children of those who can't link up to a First Nation because of separation caused by residential schools and the Sixties Scoop to also qualify.

"Some of those kids were just wrongfully removed, their names were changed," said Blackstock.

"In urgent situations, I am saying, always side on the side of the child."

Ottawa's lawyer Jonathan Tarlton said Jordan's Principle has now been expanded to include non-status First Nations children living on reserve and non-status First Nations children who could become status under recent changes in the law.

"It's not about money, there is no evidence to suggest that, it's about an important principle," said Tarlton, senior counsel with Justice Canada. "It's about an important issue such as Indigenous identity and who determines it."

The tribunal panel reserved its decision on the motion.