Page - 388 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE388 Canada’s Statutory Human Rights Obligations Towards First Nations Peoples When Responding to Public Health Crises Canada’s approach to the provision of services to First Nations chil- dren and their families is a chilling reminder of the harmful impacts of inequities in government services. The decision and remedial orders of the Canadian Human Rights Tribunal (“CHRT”) regarding Canada’s inequitable funding of children’s services for First Nations families provide a comprehensive roadmap of the federal government’s legal obligations for the funding and provision of measures designed to prevent and respond to health crises. For decades, the Government of Canada was well aware of the inequities in its First Nations Child and Family Services Program (“FNCFSP”). It failed to act, despite its knowledge that its inequitable program caused children to be taken from their families and commu- nities at alarming rates. In 2007, the First Nations Children and Family Caring Society of Canada (“Caring Society”) and the Assembly of First Nations (“AFN”) lodged a complaint against the Government of Canada under the Canadian  Human  Rights  Act (“CHRA”), alleging discrimination on the basis of race and/or national or ethnic origin in the provision of child and family services to First Nations children and their families and in the failure to implement Jordan’s Principle.28 After nearly a decade of procedural tactics by government lawyers to have the case dismissed on technicalities, the CHRT began a hearing relating to the complaint. In January 2016, the CHRT released its long-awaited decision on the merits of the complaint and upheld all of the allegations of discrimination. In particular, the CHRT found that First Nations chil- dren and their families were adversely impacted by Canada’s provi- sion of child services and its failure to implement Jordan’s Principle, a child-first principle that helps to ensure that all First Nations chil- dren living on and off reserve have access to the government-funded products, services, and supports they need when they need them. According to the CHRT, Canada’s conduct was contrary to s. 5 of the CHRA. Based on these findings of systemic discrimination, the CHRT ruled that in order to comply with its domestic and international human rights law obligations, Canada must “consider the distinct 28. See First  Nations  Child  &  Family  Caring  Society  of  Canada  et  al  v  Attorney  General  of  Canada  (representing  the  Minister  of  Indigenous  and  Northern  Affairs  Canada),  2017 CHRT 14 at para 135.