Court File No. T-630-11

FEDERAL COURT OF CANADA

BETWEEN:

FIRST NATIONS CHILD AND FAMILY CARING SOCIETY Applicant

- and -

ATTORNEY GENERAL OF CANADA, ASSEMBLY OF FIRST NATIONS CANADIAN HUMAN RIGHTS COMMISSION,

CHIEFS OF ONTARIO and AMNESTY INTERNATIONAL

Respondents

AFFIDAVIT OF CINDY BLACKSTOCK (sworn May 31, 2011)

I, Cindy Blackstock, of the City of Ottawa, in the Province of Ontario, MAKE

OATH AND SAY:

1. I am the Executive Director of the Applicant, First Nations Child and Family

Caring Society of Canada (the "Caring Society"), and as such I have knowledge of

the matters to which I herein depose, except where such matters are stated to be

based on information and belief, in which case I believe the same to be true.

2. I swear this Affidavit in support of the Caring Society's application for judicial

review of the decision of the Chairperson of the Canadian Human Rights Tribunal

(the "Tribunal"), made March 14, 2011 (the "Decision"), whereby the Chairperson

dismissed the human rights complaint filed by the Caring Society and the Assembly

of First Nations (" AFN").

3. I understand that the Canadian Human Rights Commission (the

"Commission") has filed the Affidavit of Melanie Matte, sworn May 18, 2011, in

support of its application for judicial review of the Decision in Court File No. T-578-

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10 (the "Matte Affidavit"). I also understand that in order to avoid unnecessary

duplication, the parties have agreed that reference may be made to the evidence filed

by other parties in each of the three applications for judicial review of the Tribunal's

decision that have been filed (this application, the Commission's application, and the

AFN's application in Court File No. T-638-11). I have reviewed the Matte Affidavit

and make reference in this affidavit to the Matte Affidavit and in particular the

exhibits attached to it.

A. Brief Summary of the Complaint

1) The First Nations Child and Family Caring Society

4. The Caring Society is a non-profit organization committed to research, policy

development and advocacy, on behalf of First Nations agencies that serve the well-

being of Aboriginal children, youth and families, including those living on reserve.

5. On February 26, 2007, the Caring Society and the AFN filed a joint complaint

with the Commission, which was given file number 2006/1060 (the "Complaint").

The Complaint alleges that the Government of Canada discriminates in providing

child welfare services to First Nations children living on reserve by providing

inequitable funding to on-reserve child welfare agencies. The Complaint asserts that

Indian and Northern Affairs Canada's ("INAC") child and family services program

results in inequitable child welfare services for on-reserve First Nations children

compared to those services received by children living off reserve, contrary to the

Canadian Human Rights Act (the "Act"). The Complaint also alleges that the

jurisdictional disputes between and within governments regarding First Nations

children in need of government services adversely impact those children and are

discriminatory, contrary to the Act. A copy of the Complaint is attached as Exhibit

"1" to the Matte Affidavit.

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2) Undelfunding of On-Reserve Child Welfare Agencies

6. The Complaint was filed, in part, in light of various government reports and

studies that suggest that the current level of child welfare services provided to on-

reserve First Nations children is less than such services provided to off-reserve

children. Many of these reports were filed with the Tribunal and are appended to

the Matte Affidavit, including:

(a) a Joint National Policy Review conducted by INAC and AFN in June 2000, which found that First Nations children living on reserve received 22 percent less funding for child welfare than children living off reserve, and which noted that the funding received by on-reserve child welfare agencies was often not enough to provide least disruptive measure services (services designed to help children stay safely in their homes) to First Nations families on reserve, even though such services are often required under provincial child protection legislation : Exhibit "40(a)" to the Matte Affidavit; and

(b) a series of reports commissioned by a National Advisory Committee co-chaired by the AFN and INAC and published by the Caring Society in 2005 (the "Wen:de Reports"), which reviewed INAC's First Nations Child and Family Services Policy, found that on-reserve First Nations children are over-represented in the child welfare population, and suggested that the INAC funding formula underfunds primary, secondary and tertiary child welfare services, compared to services provided to off-reserve children: Exhibits "40(c)", "40(d)" and "40(e)" to the Matte Affidavit.

7. Since filing the Complaint further studies have suggested that First Nations

children living on reserve continue to be underfunded. In May 2008, the Auditor

General of Canada and the Auditor General of British Columbia released a report

regarding INAC's First Nations Child and Family Service Program (Exhibit "40(1)" to

the Matte Affidavit), concluding that INAC's programs and fundings of child welfare

services are not equitable among Aboriginal and First Nations communities and

making a number of recommendations to the Federal Government. In addition, in

2009 the Standing Committee on Public Accounts reviewed INAC's implementation

of the Auditor Generals' recommendations and concluded that on-reserve agencies

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continued to be underfunded. The Report of the Standing Committee on Public

Accounts is attached hereto as Exhibit "A".

3) Jordan's Principle

8. In addition, the Complaint was filed in response to the Federal Government's

failure to adequately implement "Jordan's Principle". Jordan's Principle was

developed after Jordan River Anderson, a five-year-old First Nations child from

Norway House Cree Nation in Manitoba, died in a Winnipeg hospital in 2005.

Although cleared by doctors to return home, Jordan was unable to live at home with

his family during his illness and remained in hospital as a result of a disagreement

between the Federal Government and the Province of Manitoba regarding which

government would pay for Jordan's in-home care, given his on-reserve First Nations

status. Jordan was five years old when he died, never having left the hospital.

Jordan's Principle calls on the government of first contact to provide and

immediately pay for the services required by the First Nations child and, if

appropriate, seek reimbursement from the appropriate government department.

9. Since filing the Complaint, on December 12, 2007, a private member's motion

was passed unanimously by the House of Commons in support of Jordan's Principle.

Nonetheless, the Complaint sets out the continuing substantial problem raised by

ongoing jurisdictional disputes arising from a failure to adequately and

appropriately implement Jordan's Principle.

B. Procedural History of the Complaint

1) The Commission's Decision to Deal with the Complaint

10. On June 4, 2007, the parties were alerted by the Commission that an Assessor

had been appointed to prepare an assessment report. By letter dated May 6, 2008, the

Attorney General of Canada requested that the Commission decline to deal with the

Complaint pursuant to sections 41(1)(c) and 41(1)(d) of the Act, on the basis that the

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Complaint was beyond the jurisdiction of the Commission. A copy of the Attorney

General's May 6, 2008 letter is attached hereto as Exhibit "B".

11. On June 26, 2008 the Assessor, John Chamberlin, prepared the Assessment

Report and recommended that the Commission deal with the Complaint. A copy of

the Assessment Report is attached as Exhibit "2" to the Matte Affidavit.

12. On September 30, 2008, the Commission released its decision and requested

that the Chairperson of the Tribunal institute an inquiry into the Complaint. A copy

of the Commission's decision is attached as Exhibit "3" to the Matte Affidavit.

2) Judicial Review of the Commission's Decision

13. On November 13, 2008, the Attorney General brought an application for

judicial review to the Federal Court, seeking to quash the Commission's decision and

dismiss the Complaint. The Attorney General asserted that the Commission lacked

jurisdiction over the Complaint given that INAC does not provide a "service" in

funding on-reserve child welfare agencies pursuant to the Act (the "Service Issue"),

and that its funding cannot be compared to provincial or territorial funding off

reserve (the "Comparator Issue"). A copy of the Attorney General's Amended

Notice of Application is attached hereto as Exhibit "C".

14. In response, on February 12, 2009, the Caring Society and AFN brought a

motion to strike the Attorney General's application or, in the alternative, stay the

Attorney General's application until the Complaint had been dealt with by the

Tribunal. A copy of the Caring Society and AFN's Fresh As Amended Notice of

Motion is attached hereto as Exhibit "D".

15. On November 24, 2009, Madam Prothonotary Aronovitch stayed the Attorney

General's application for judicial review until disposition of the Complaint before the

Tribunal, but refused to strike the application. A copy of Prothonotary Aronovitch's

decision is attached hereto as Exhibit "E".

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16. The Caring Society and AFN appealed the decision of Prothonotary

Aronovitch, as did the Attorney General. On March 30, 2010, Justice O'Reilly

dismissed both appeals. A copy of Justice O'Reilly's decision is attached hereto as

Exhibit "F".

3) Chairperson Sinclair's Carriage of the Complaint

17. In the interim, on February 4, 2009, the Tribunal held its first telephone case

conference with the Chairperson, Grant Sinclair, which I attended. During the case

conference the Attorney General requested that the Tribunal make preliminary

determinations regarding the Service Issue and the Comparator Issue. Chairperson

Sinclair refused to hear the motion, stating that the matter was complex and required

a full hearing.

18. During the following months, the parties prepared their statements of

particulars, lists of documents and potential witnesses in anticipation of the full

hearing that had been directed.

19. On September 14, 2009, the adjudication of the Complaint began, presided

over by Chairperson Sinclair. Both Amnesty International ("Amnesty") and the

Chiefs of Ontario (the "COO") requested and obtained interested party status. Prior

to the close of the day's proceedings, the Attorney General objected to the scheduling

of further hearing dates and sought to have the hearing adjourned, arguing that the

Complaint was not sufficiently clear. Chairperson Sinclair denied this request.

20. On September 17, 2009, the Tribunal issued a direction, granting Amnesty and

the COO Interested Party Status and setting the following hearing dates for the

hearing of the Complaint: November 16-20, 2009; January 18-22, 2010; January 25-29,

2010; February 8-12, 2010 and February 15-19, 2010. A copy of the September 17,

2009 direction is attached as Exhibit "12" to the Matte Affidavit.

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4) Chairperson Chotalia Assumes Carriage of the Complaint

21. On November 2, 2009, Shirish Chotalia assumed her appointment as the new

Chairperson of the Tribunal.

22. On November 6, 2009, Chairperson Chotalia convened a telephone case

conference with all of the parties. I did not attend but I listened to an audio

recording of the case conference on November 7, 2009. During the case conference

Chairperson Chotalia asked counsel for the Attorney General why they had not

sought a stay of proceedings in light of the application for judicial review of the

Commission's decision that had been brought to the Federal Court. The Attorney

General answered that it would not be bringing a stay but was considering a motion

on the Service Issue and Comparator Issue.

23. During the November 6, 2009, case conference it was also unclear whether Mr.

Sinclair remained the Tribunal member sitting on the case. As a result, on November

9, 2009, counsel for the Caring Society, Paul Champ, wrote to the Tribunal,

requesting that the Tribunal formally render a decision on whether Chairperson

Sinclair remained seized of the Complaint. A copy of the November 9, 2009 letter is

attached as Exhibit "24" to the Matte Affidavit.

24. I am informed by Mr. Champ and believe that no response was received from

the Tribunal regarding his November 9, 2009, letter.

25. On November 12, 2009, the Tribunal issued a direction, vacating the hearings

scheduled for the week of November 16 to 20, 2009 and set aside January 19, 2010 to

address, inter alia, the issue of expert reports and narrowing the issues of the

Complaint (the "November 12 Direction"). A copy of the November 12 Direction is

attached as Exhibit "23" to the Matte Affidavit.

26. On December 4, 2009 Mr. Champ wrote to the Tribunal regarding Chairperson

Chotalia's November 12 Direction, expressing concern regarding the delay of the

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hearing and issues of procedural fairness. A copy of the December 4, 2009, letter is

attached as Exhibit "25" to the Matte Affidavit.

27. I am informed by Mr. Champ and believe that no response was received from

the Tribunal regarding his December 4, 2009 letter.

5) The Process Mediation

28. On December 14, 2009, the parties attended a case conference, at which I was

present. During the course of the case conference, Chairperson Chotalia suggested

that the parties participate in a process mediation, even though adjudication of the

Complaint had already commenced on September 14, 2009. Chairperson Chotalia

suggested Matthew Garfield as the process mediator. While the parties did not

commit to the mediation, they expressed an openness to the idea.

29. Without notice to the parties, on December 23, 2009, Chairperson Chotalia

confirmed the mediation with Mr. Garfield and provided him with a briefing memo

regarding the Complaint. A copy of the December 23, 2009 letter and briefing memo

- which were not provided by the parties but were received only in response to the

Caring Society's request for documents under Rule 317 in this application - is

attached hereto as Exhibit "G".

30. On January 8, 2010, the Tribunal issued a direction regarding the Attorney

General's motion to dismiss the Complaint (discussed below) and, without notice or

consent of the parties, directed that all further hearing dates be vacated. A copy of

the January 8, 2010, direction is attached as Exhibit "33" to the Matte Affidavit.

31. Later that day, again without confirming with the parties, the Tribunal

advised that a mediation was scheduled to proceed on January 11, 2010. Initially, the

Caring Society was reluctant to participate in the mediation, given that all of the

previously scheduled hearing dates had been vacated without notice or consent, the

Attorney General's motion to dismiss was scheduled to proceed on January 19, 2010,

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and we were concerned about the impact of the potential additional cost of the

mediation on the Caring Society's limited resources. As a result, Mr. Champ advised

the Tribunal that the Caring Society would not be attending the mediation. A copy

of the Tribunal's January 8, 2010 correspondence and Mr. Champ's response is

attached hereto as Exhibit "H".

32. During the week of January 11, 2010, the parties participated in a confidential

and without prejudice process mediation, with a follow up session on March 22,

2010. Ultimately the Caring Society did participate in the mediation and I attended a

number of sessions during that week. Unfortunately, the parties did not come to

any agreement of the substantive issues, including the agreed statement of facts or

the use and parameters of the expert reports. A copy of correspondence from Mr.

Garfield to the Tribunal dated March 24, 2010 is attached hereto as Exhibit "I".

C. The Attorney General's Motion to Dismiss the Complaint

33. As noted above, Chairperson Sinclair had originally indicated that the

Tribunal would not make a preliminary determination on jurisdictional matters.

However, after the appointment of Chairperson Chotalia, the case conference of

November 6, 2009 (in which Chairperson Chotalia asked why the Attorney General

had not brought a stay of proceedings and the Attorney General had indicated that it

might bring a motion on the jurisdictional questions), and the Tribunal's vacating of

hearing dates, the Attorney General advised the parties and the Tribunal on

December 14, 2009, that it would be bringing a motion to dismiss the Complaint on

the basis that the Tribunal lacked jurisdiction, based on the Service Issue and the

Comparator Issue. A copy of the Attorney General's correspondence is attached

hereto as Exhibit "J".

34. As noted above, on December 14, 2009, the parties attended a case conference.

During the case conference, counsel for the Attorney General advised that the

Respondent would be filing its motion to dismiss on December 21, 2009.

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Chairperson Chotalia advised that the motion would proceed in January, 2010 along

with a number of other motions regarding preliminary matters. Counsel for the

Caring Society raised concerns regarding the timing of the motion to dismiss and its

impact on the hearing of the Complaint, including the potential delay caused by the

motion.

35. On December 21, 2009, the Attorney General filed its notice of motion to

dismiss the Complaint for lack of jurisdiction. A copy of the notice of motion is

attached as Exhibit "32" to the Matte Affidavit.

D. The Caring Society's Motion to Amend to Add Retaliation

36. It is part of my role as Executive Director of the Caring Society to provide

support to First Nations representatives and agencies regarding First Nations child

welfare issues. Prior to filing the Complaint, I was regularly consulted by INAC

officials and worked collaboratively with INAC on studies and projects in order to

help improve the outcomes of First Nations children in care.

37. After filing the Complaint, however, I was excluded from a number of

meetings with INAC in which I had sought to assist First Nations representatives

and agencies on child welfare matters. In 2008, the British Columbia Cliildren and

Family Services Association ("BCCFSA") invited me to provide them with support

during the negotiation of an enhanced funding model with INAC officials. When

INAC became aware of this, they advised the BCCFSA that INAC would not meet

with the BCCFSA if I was present, since I had filed the Complaint. A similar incident

occurred during negotiations in Manitoba.

38. On December 9, 2009, I was invited by the Chiefs of Ontario to attend a

meeting between the Chiefs of Ontario and David McArthur of INAC. I was one of

five individuals invited to act as a technical aid to the Chiefs for the meeting. I

followed all of the proper security procedures to enter INAC's offices. However,

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when I introduced myself to Mr. McArthur in the reception area, he indicated that he

would refuse to meet with the Chiefs of Ontario if I were present (notwithstanding

that both Chief Randall Phillips and I confirmed that I was not present to discuss the

Tribunal Complaint or other issues).

39. On December 22, 2009, the Caring Society filed a motion with the Tribunal

seeking to amend the Complaint so as to add an allegation of retaliation contrary to

section 14.1 of the Act. A copy of the Caring Society's notice of motion and

supporting affidavit is attached hereto to Exhibit "K".

E. The Motion to Dismiss is Delayed to June, 2010

40. On December 23, 2009, the Tribunal issued a direction to the parties, stating

that the outstanding motions, including the Attorney General's motion to dismiss

(but not the Caring Society's motion, which had just been filed the previous day),

would be heard during the week of January 19, 2010. The Tribunal also directed the

Commission, the Complainants and the interested parties to inform the Tribunal by

December 30, 2009, whether they wished to proceed with the motion to dismiss in

January 2010. A copy of the December 23, 2009 direction is attached as Exhibit "28"

to the Matte Affidavit.

41. On December 30, 2009, the Caring Society's counsel wrote to the Tribunal,

arguing that the Attorney General's motion to dismiss was premature and that the

issue of "service" could not be determined without a complete evidentiary record,

following a full hearing. Mr. Champ requested the opportunity to make submissions

on the issue of prematurity during the week of January 19, 2010. I am advised by Mr.

Champ and believe that AFN, Amnesty, the COO, and the Commission all agreed

with this proposal. A copy of the December 30, 2009 letter is attached hereto as

Exhibit "L".

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42. On January 8, 2010, Chairperson Chotalia issued a direction regarding the

Attorney General's motion to dismiss (attached as Exhibit "33" to the Matte

Affidavit). The direction set out the materials to be delivered for use on the motion

(affidavits and written submissions), and a timeline for filing. The Tribunal did not

indicate that it would be considering or relying on materials previously filed by the

parties in respect of the merits of the Complaint, including the expert reports filed by

the parties. The Chairperson issued the direction without providing the parties with

the opportunity to make submissions on whether the motion to dismiss was

premature.

43. On January 13, 2010, the Caring Society's counsel wrote to the Tribunal to

raise concerns about the decision to adjourn the hearings without the consent or

submissions from the parties, and addressed other outstanding issues, including the

Caring Society's retaliation motion, to which the Tribunal had not respond. A copy

of the January 13, 2010 letter is attached as Exhibit "35" to the Matte Affidavit.

44. I am advised by Mr. Champ and believe that the Tribunal has yet to address

the Caring Society's retaliation motion.

45. Chairperson Chotalia issued a direction on January 21, 2010 (Exhibit "37" to

the Matte Affidavit), stating that the parties were free to make submissions on the

issue of prematurity and motion process during the hearing of the motion to dismiss.

No dates were set for the hearing of that motion.

46. By March 2010, the parties had exchanged affidavits and conducted cross-

examinations on the motion to dismiss. However, no dates for the motion had been

set by the Tribunal. On March 9, 2010, counsel for the Caring Society wrote to the

Tribunal requesting that dates be set for the oral arguments, stressing the urgency of

the issues raised in the Complaint and the impact of delay on the children and

families affected by the Complaint. A copy of the March 9, 2010, letter is attached as

Exhibit "43" to the Matte Affidavit.

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47. On March 12, 2010, Chairperson Chotalia wrote to the parties and set June 14

and 15, 2010 as the dates for the oral arguments for the motion to dismiss (Exhibit

"44" to the Matte Affidavit). On March 17, 2010, the Attorney General's counsel

replied to the direction indicating that he was not available from June 10-14 to argue

the motion. A copy of Mr. Tarlton's letter is attached hereto as Exhibit "M".

48. On March 16, 2010 the Commission responded to the March 12, 2010 direction,

requesting an urgent case conference. AFN supported the Commission's request for

a case conference and raised concerns regarding the delay of the Complaint. A copy

of the Commission's and AFN's email is attached hereto as Exhibit "N". On March

17, 2010 Amnesty also responded and raised concerns of the Commission regarding

the delay of the Complaint (Exhibit "45" to the Matte Affidavit).

49. I am advised by Mr. Champ and believe that it was finally agreed amongst

counsel that the motion to dismiss would be argued on June 2 and 3, 2010. The

Tribunal agreed to these dates.

50. On June 2 and 3, 2010, the motion to dismiss was heard by Chairperson

Chotalia. The parties were not provided with the opportunity to present oral

evidence at the motion but instead were confined to the motion records submitted by

the parties. The motion record of each party is attached to the Matte Affidavit.

51. At no time during the hearing did Chairperson Chotalia advise that she would

be considering material filed outside of the motion records. At the completion of the

hearing Chairperson Chotalia reserved her decision.

F. The Decision is Delayed

52. Certain correspondence between the Tribunal and the parties in the eight

months after the hearing of the motion is described in paragraphs 84 to 105 and

Exhibits 59 to 81 of the Matte Affidavit. I therefore will not repeat the chronology of

this correspondence. However, I note that I am advised by Mr. Champ and believe

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that the Tribunal did not acknowledge or respond to Mr. Champ's August 23, 2010

request that the Chairperson issue a "bottom line" decision on the motion with

reasons to follow (Exhibit "63" to the Matte Affidavit); his December 17, 2010 request

that the Chairperson provide a firm date on which the parties could expect to receive

the Decision (Exhibit "74" of the Matte Affidavit); or his February 4, 2011 request that

the motion to dismiss be determined without further delay. For completeness, a

copy of the Attorney General's response to the February 4, 2011 request, dated

February 7, 2011, is attached hereto as Exhibit "0".

53. On February 28, 2011, the Caring Society filed an application for judicial

review, seeking an order of mandamus to require the Tribunal to set dates for a

hearing into the merits of the Complaint. A copy of the notice of application is

attached hereto as Exhibit "P".

G. The Attorney General's Expert Report

54. As an additional matter not addressed in the Matte affidavit, on July 30, 2010

the Attorney General sent to the Tribunal an expert report prepared by KPMG LLP

(the "KPMG Report"). This expert report had been the subject of certain

correspondence from the Attorney General and the Caring Society's counsel

regarding the issue of confidentiality on July 27, 2010 and July 29, 2010, copies of

which are attached as Exhibits "Q" and "R".

55. On July 30, 2010 the Attorney General filed the KPMG Report with the

Tribunal but did not send a copy to the Caring Society. A copy of the Commission's

July 30, 2010 cover letters in respect of this filing are attached hereto as Exhibit "S".

56. As the Attorney General had not served the KPMG Report by July 30, 2010 as

it was obliged to do, Mr. Champ wrote the Tribunal on August 3, 2010, objecting to

the late filing of the KPMG Report. A copy of Mr. Champ's August 3, 2010 letter to

the Tribunal is attached hereto as Exhibit "T".

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57. On August 20, 2010, the Tribunal returned the KPMG Report to the Attorney

General un-copied, and granted the Attorney General until September 15, 2010 to

seek a direction regarding confidentiality and/or file the KPMG Report. A copy of

the Tribunal's August 20, 2010 direction is attached hereto as Exhibit "U".

58. On September 15, 2010, the Attorney General sent a copy of the KPMG Report,

consisting of two parts (one of which included an "Addendum" dated September 14,

2010) and a correction letter, to the Caring Society's counsel and to the Tribunal. A

copy of the Attorney General's cover letter and the KPMG Report is attached hereto

as Exhibit "V".

H. The Decision

59. On March 14, 2011, Chairperson Chotalia delivered the Decision, "subject to

editorial and formatting revision before its reproduction in final form". I have

reviewed the Decision.

60. In the Decision, Chairperson Chotalia made express reference to the material

that was before her in respect of the motion, and provided a list of this material as

Appendix "A" to the Decision. Appendix "A" includes a number of documents that

were not filed on the motion, but were filed in relation to the merits of the

Complaint, including the expert reports filed by the parties and including in

particular the KPMG Report. Neither during the hearing of the motion to dismiss

nor at any time thereafter did Chairperson Chotalia advise the parties that she would

be relying on material outside of the motion material filed by the parties, including

the expert reports. As a result, the Caring Society made no submissions regarding

same.

61. On April 7, 2011, the Tribunal issued a revised version of the Decision,

correcting certain errors that had been made in the initial version of the Decision. No

changes were made to Appendix "A" in this final version.

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Cindy Blackstock

- 16 -

I. The Attorney General's Rule 317 Request

62. Notwithstanding that Chairperson Chotalia had provided in the Decision an

appendix identifying the materials placed before her on the motion to dismiss, on

April 18, 2011 the Attorney General filed a request pursuant to Rule 317, asking that

the Tribunal provide a "Certified Index confirming all of the documentation that was

before Chairperson Chotalia when making the determination of March 14, 2011,

which dismissed the complaint in the matter T1340/7008."

63. On May 6, 2011, the Caring Society received the Tribunal's response to the

Attorney General's Rule 317 request. The Tribunal provided the Certified List

requested, which listed all of the material referenced in Appendix "A" to the

Decision except the expert reports filed by the parties. The Tribunal's response

covering this Certified Index stated the following: "Please note that expert reports

filed by the parties were not taken into consideration by the Chairperson when

rendering her ruling. As such, they do not appear in the Certified Index." A copy of

the May 6, 2011 letter from the Tribunal and attached index is attached hereto as

Exhibit "W".

SWORN BEFORE ME at the City of Ottawa, in the Province of Ontario on May 31, 2011.

ssiO Or kin Affidavits NICHO S M AF E

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This is Exhibit "A" to the Affidavit of Cindy Blackstock, sworn before me in the City of Ottawa, in the Province of Ontario,

this 31st day of May, 2011.

AZZ.€'issi/Oaths, etc.

HOUSE OF COMMONS CANADA

CHAPTER 4, FIRST NATIONS CHILD AND FAMILY SERVICES PROGRAM - INDIAN AND NORTHERN

AFFAIRS CANADA OF THE MAY 2008 REPORT OF THE AUDITOR GENERAL

Report of the Standing Committee on Public Accounts

Hon. Shawn Murphy, MP Chair

MARCH 2009

40th PARLIAMENT, 2nd SESSION

The Speaker of the House hereby grants permission to reproduce this document, in whole or in part for use in schools and for other purposes such as private study, research, criticism, review or newspaper summary. Any commercial or other use or reproduction of this publication requires the express prior written authorization of the Speaker of the House of Commons.

If this document contains excerpts or the full text of briefs presented to the Committee, permission to reproduce these briefs, in whole or in part, must be obtained from their authors.

Also available on the Parliamentary Internet Parlementaire: http://www.parl.gc:ca

Available from Communication Canada — Publishing, Ottawa, Canada K1A 0S9

CHAPTER 4, FIRST NATIONS CHILD AND FAMILY SERVICES PROGRAM - INDIAN AND NORTHERN

AFFAIRS CANADA OF THE MAY 2008 REPORT OF THE AUDITOR GENERAL OF CANADA

Report of the Standing Committee on Public Accounts

Hon. Shawn Murphy, MP Chair

MARCH 2009

40th PARLIAMENT, 2nd SESSION

STANDING COMMITTEE ON PUBLIC ACCOUNTS

CHAIR

Hon. Shawn Murphy

VICE-CHAIRS

David Christopherson

Daryl Kramp

MEMBERS

Bonnie Crombie

Andrew Saxton

Luc Desnoyers

Bev Shipley

Meili Faille

John Weston

Yasmin Ratansi

Terence Young

CLERK OF THE COMMITTEE

Joann Garbig

LIBRARY OF PARLIAMENT

Parliamentary Information and Research Service

Andrew Kitching

Alex Smith

THE STANDING COMMITTEE ON PUBLIC ACCOUNTS

has the honour to present its

SEVENTH REPORT

Pursuant to its mandate under Standing Order 108(3)(g), the Committee has studied Chapter 4, First Nations Child and Family Services Program - Indian and Northern Affairs Canada of the May 2008 Report of the Auditor General of Canada and has agreed to report the following:

v

INTRODUCTION

Children are amongst the most vulnerable people in society. Every effort

ought to be taken to ensure that they are protected from abuse and neglect, and

assistance is provided to families so children can grow up in a safe home environment.

Where this is not possible, it may be necessary to find a safe, permanent home for the

child.

As child welfare is a provincial responsibility, all provinces have child

welfare statutes in place and have services for children at risk or in need. Providing First

Nations children access to child welfare services in their communities is a recent

undertaking. Formerly, many First Nations children were adopted out of their

communities by provincial child welfare services; today, most provinces delegate

authority for these services to local First Nations agencies which are responsible for

taking appropriate actions to ensure the safety and protection of children and promoting

their well-being.

As First Nations peoples living on reserves are a federal responsibility,

Indian and Northern Affairs Canada operates a First Nations Child and Family Services

Program. The objective of this program is to fund the provision of child welfare services

that are culturally appropriate, that comply with provincial legislation and standards, and

that are reasonably comparable with services provided off reserves in similar

circumstances.

In May 2008, the Office of the Auditor General presented to Parliament an

audit of the First Nations Child and Family Services Program.'

Given the importance of the safety and well-being of all Canadian children

and the disturbing findings of the audit, the Public Accounts Committee held a hearing

on this audit on 12 February 2009 with officials from the Office of the Auditor General

(OAG) and Indian and Northern Affairs Canada. The OAG was represented by Sheila

Fraser, Auditor General of Canada; Ronnie Campbell, Assistant Auditor General; and

Jerome Berthelette, Principal. INAC was represented by Michael Wernick, Deputy

Minister; Christine Cram, Assistant Deputy Minister, Education and Social Development

'Auditor General of Canada, May 2008 Report, Chapter 4, First Nations and Family Services Program-Indian and Nwthem Affairs Canada.

1

Programs and Partnerships Sector; Mary Quinn, Director General, Social Policy and

Programs Branch; Odette Johnston, Director, Social Programs Reform Directorate.

BACKGROUND

In 1990, the federal government approved a First Nations child welfare

policy that promoted the development of culturally appropriate child and family services

controlled by First Nations for the benefit of on-reserve children and their families.

Based on this policy, Indian and Northern Affairs Canada (INAC) created the First

Nations Child and Family Services Program. Under this program, INAC provides

funding to First Nations, their organizations, and provinces to cover the operating and

administrative costs of the child welfare services provided to children and families living

on reserves, as well as the costs related to First Nations children placed in care.

In 2007, INAC spent $450 million on the First Nations Child and Family

Services Program: $270 million on direct support for First Nations children in care and

$180 million on the operations and administration of child welfare services provided to

First Nations. The Program supports 105 First Nations Child and Family Services

Agencies to deliver child and family services to approximately 160,000 children and

youth in approximately 447 out of 573 First Nation communities.

The statistics of the number of First Nations children in care are alarming.

At the end of March 2007, there were about 8,300 on-reserve children in care, a little

over 5 percent of all children living on reserves. This proportion is almost eight times

that of children in care living off reserves. Some of the major contributing reasons for

children coming into care are poverty, poor housing conditions, substance abuse, and

exposure to family violence.

The objective of the OAG's audit was to determine whether INAC was

fulfilling its responsibility, under federal policy, to support child welfare services to on-

reserve children and families that are culturally appropriate and reasonably comparable

with provincial services available off reserves in similar circumstances.

2

ACTION PLAN

The audit made six recommendations, and the Committee fully supports

these recommendations. As Indian and Northern Affairs Canada agreed with all of the

recommendations, the Committee expects that the Department will fully implement

them.

In response to audits by the Office of the Auditor General, the Committee

expects that departments prepare an action plan that details what actions will be taken

in response to each recommendation, specifies timelines for the completion of the

actions, and identifies responsible individuals for ensuring the actions are undertaken in

a prompt and effective manner. An action plan demonstrates management's

commitment to implementing the OAG's recommendations, provides transparency

about the department's plans, and allows the department to be held to account for

specific actions.

The Committee also expects that departments provide detailed action

plans before their hearing. This allows Committee members to review the action plan

and to develop questions for departmental officials.

The work for the audit on the First Nations Child and Family Services

Program was completed on 9 November 2007, and the audit was tabled in Parliament

on 6 May 2008. However, the Deputy Minister and Accounting Officer for INAC, Michael

Wernick, only provided vague generalities in his opening statement about the

Department's actions in response to the audit; though, he did commit to providing a

follow-up report to the Committee in April. When asked if he had a concrete and specific

action plan to provide to the Committee, Mr. Wernick said, "we have an action plan in

the sense that we're pursuing these various initiatives. That was the undertaking I made

at the beginning: that it would be going to my audit committee in the month of April and

we'd provide it to the committee. It will go through each recommendation and give more

specifics on what we're doing or what we already have done." 2

While the Deputy Minister verbally committed to providing an action plan

and follow-up report to the Committee in April, the Committee is very concerned that

2 House of Commons Standing Committee on Public Accounts, 40 th Parliament, 2 thl Session, Meeting 4, 17:10.

3

there is no evidence of an action plan currently in place, and that it would take so long

to finalize an action plan. The Committee agrees that the departmental audit committee

should be regularly examining this issue and ensuring that appropriate progress is

made. In order to ensure that INAC follows through on its commitment, the Committee

recommends:

RECOMMENDATION 1

That Indian and Northern Affairs Canada provide a detailed action plan to the Public Accounts Committee by 30 April 2009 on the implementation of the Office of the Auditor General's recommendations included in the May 2008 audit of the First Nations Child and Family Services Program.

POLICY REQUIREMENTS

According to the audit, the federal government's First Nations child welfare

policy commits the government to fund child welfare services that are culturally

appropriate, that comply with provincial legislation and standards, and that are

reasonably comparable with services provided off reserves in similar circumstances. 3

Similar wording is provided on INAC's website, "The First Nations Child & Family

Services (FNCFS) Program assists First Nations in providing access to culturally

sensitive child and family services in their communities, and ensures that the services

provided to First Nations children and their families on-reserve are comparable to those

available to other provincial residents in similar circumstances." 4

However, the audit found that INAC had not analyzed and compared the

child welfare services available on reserves with those in neighbouring communities off

reserves. 5 In some cases comparability may not be appropriate, as First Nations

communities often cannot rely on other social and health services to help keep a family

together, services are sometimes delivered in isolated areas, and First Nations

communities may face more challenging situations than other communities.

3 Chapter 4, paragraph 4.17. 4 http://www.ainc-inac.gc.ca/hb/sp/fncf/index-eng.asp 5 Chapter 4, paragraph 4.19.

4

Nonetheless, it should be possible to compare the level of funding

provided to First Nations child and family services agencies to similar provincial

agencies, and given their unique and challenging circumstances, it would be reasonable

to expect First Nations agencies to receive a higher level of funding. Yet, when asked

how the funding for First Nations child and family service agencies compares to

agencies for non-natives, the Assistant Deputy Minister said, "I'm sorry, but we don't

know the answer." 6 The same question was put to the Deputy Minister and he replied,

"Our accountability is for the services delivered by those agencies to the extent that we

fund them."'

The Committee finds these responses quite disappointing. The Deputy

Minister's response was unsatisfactory because the issue under discussion is the extent

to which the agencies are funded. Also, to not know how the funding compares to

provincial agencies makes the Committee wonder how the level of funding is

determined, and how the Department can be assured that it is treating First Nations

children equitably.

Some indication of how the funding level for First Nations child welfare

agencies compares to provincial agencies can be found in the Joint National Policy

Review conducted in 2000. This review found that, "DIAND [Department of Indian and

Northern Development] has been limited to 2% budgetary increases for the department

while expenditures for FNCFS [First Nations child and family services] agencies have

been rising annually at an average rate of 6.2%. The average per capita per child in

care expenditure of the DIAND funded system is 22% lower than the average of the

selected provinces." 8

This review, though, is now somewhat dated and is not a complete picture

of all provinces. As the policy requires First Nations child welfare services to be

comparable with services provided off reserves and the Committee believes that First

Nations children should be treated equitably, the Committee believes that INAC must

6 Meeting 4, 16:10. 7 Meeting 4, 16:25. 8 Dr. Rose-Alma J. McDonald, Dr. Peter Ladd, et. al., First Nations Child and Family Services Joint National Policy Review, June 2000, page 14. This report was prepared for the Assembly of First Nations with First Nations Child and Family Service Agency Representatives in partnership with the Department of Indian Affairs and Northern Development.

5

have comprehensive information about the funding level provided to provincial child

welfare agencies and compare that to the funding of First Nations agencies. This does

not mean that INAC should adopt provincial funding formulae for First Nations agencies

as the needs for First Nations agencies are unique and often greater. Nonetheless, at

the very least, INAC should be able to compare funding. Consequently, the Committee

recommends:

RECOMMENDATION 2

That Indian and Northern Affairs Canada conduct by 31 December 2009 a comprehensive comparison of its funding to First Nations child and family welfare services agencies to provincial funding of similar agencies and provide the Public Accounts Committee with the results of this review.

In addition to comparability, the policy also requires that child welfare

services be "culturally appropriate." The audit found that INAC had not yet defined the

meaning of "culturally appropriate services." 9 The main indicator of culturally

appropriate used by the Department is the number of agencies being funded. However,

many of these agencies provide only a limited portion of services, while provinces

continue to provide the rest.

When asked whether the Department had defined "culturally appropriate

services," the Deputy Minister somewhat flippantly replied, "Culturally appropriate

services are not really something that I, as a white bureaucrat in Ottawa, can define for

a first nations agency operating in a particular community." 1° The Committee was not

expecting the Deputy Minister to provide the definition, but instead he should have had

a clear grasp of what progress the Department has made in working with its partners to

develop a definition, especially as the Department's response to the OAG's

recommendation states, "Definitions of culturally appropriate services will be developed

through discussions with the various First Nations based upon community

9 Chapter 4, paragraph 4.23. 10 Meeting 4, 16:20.

6

circumstances, and are targeted for completion in 2012. 11 As the Committee would like

to know what progress has been made to date, the Committee recommends:

RECOMMENDATION 3

That Indian and Northern Affairs include a clear indication of progress made in defining "culturally appropriate services" in its follow-up report on the Office of the Auditor General's audit of the First Nations Child and Family Services Program to be provided to the Public Accounts Committee in April 2009.

FUNDING FORMULAE

Indian and Northern Affairs currently has two funding formulae in place for

the First Nations Child and Family Services Program: one formula, known as Directive

20-1, was designed in 1988 and has not been significantly modified since, and a new

formula that is being developed in tripartite agreements with First Nations and

provinces. There are currently tripartite agreements in place with Alberta,

Saskatchewan, and Nova Scotia.

The older funding formula has the effect of increasing the number of

children in care because the costs of in-care options—foster care, group homes and

institutional care—are fully reimbursed under this formula. In other words, under

Directive 20-1, the Department will cover the costs of children in care regardless of the

amount, but it will provide minimal funding for supports for children to be cared for safely

in their own family.

Moreover, the audit points out that this formula does not ensure an

equitable allocation of program funding. 12 It is based on the assumption that each First

Nations agency has 6 percent of on-reserve children placed in care. Though, the audit

found that the actual percentage of children in care can range from 0 to 28 percent. The

formula is also unresponsive to factors that can cause wide variations in operating

costs, such the capacity of small agencies to provide the required range of child welfare

services.

" Chapter 4, response to recommendation 4.26. 12 Chapter 4, paragraph 4.52.

7

The Deputy Minister acknowledged the flaws in the older funding formula

and pointed to the new approach:

What we had was a system that basically provided funds for kids in care. So what you got was a lot of kids being taken into care. And the service agencies didn't have the full suite of tools, in terms of kinship care, foster care, placement, diversion, prevention services, and so on. The new approach that we're trying to do through the new partnership agreements provides the agencies with a mix of funding for operating and maintenance--which is basically paying for the kids' needs--and for prevention services, and they have greater flexibility to move between those.

In other words, the new formula is based on an enhanced prevention approach, which is

intended to improve outcomes for children and families and reduce the need for out-of-

home placements. The enhanced prevention approach provides First Nations child

welfare agencies greater flexibility to fund such options as family supports, in-home

services, and kinship care. This new approach has been called the "Alberta Response

model," and it should lead to better outcomes for children and possibly lower costs in

the long-term. The Committee supports this prevention-based approach as it brings

together a range of community partners to support children and their families.

However, both funding formulae are currently in place. The Assistant

Deputy Minister, Christine Cram, described the current situation:

We currently have two formulas in operation. We have a formula for those provinces where we haven't moved to the new model. Under that formula, we reimburse all charges for kids who are actually in care, and that's why the costs have gone up so dramatically over time. There were comments made about the fact that under the old formula there wasn't funding provided to be able to permit agencies to provide prevention services. That's a fair criticism of the old formula. Under the new formula, as the deputy was mentioning, we have three categories in the funding formula. We have operations, prevention, and maintenance. So those are each determined on a different basis. 13

So, First Nations child welfare agencies in the three provinces noted above are funded

by the new formula, but agencies in the rest of the country are funded under the old

formula, until new tripartite agreements are signed, which the Department hopes to

achieve with all provinces by 2012.

13 Meeting 4, 16:05.

8

The Committee is quite concerned that the majority of First Nations

children on reserves continue to live under a funding regime which numerous studies

have found is not working and should be changed. According to the Joint National

Policy Review, "The funding formula inherent in Directive 20-1 is not flexible and is

outdated." 14 The 2005 Wen:de report, which undertook a comprehensive review of

funding formulae to support First Nations child and family service agencies, found that

the current funding formula drastically underfunds primary, secondary and tertiary child

maltreatment intervention services, including least disruptive measures. The report

writes, "The lack of early intervention services contributes to the large numbers of First

Nations children entering care and staying in care." 15 An evaluation prepared in 2007 by

INAC's Departmental Audit and Evaluation Branch recommended that INAC, "correct

the weaknesses in the First Nations Child and Family Service Program's funding

formula." 16 The OAG concluded, "As currently designed and implemented, the formula

does not treat First Nations or provinces in a consistent or equitable manner. One

consequence of this situation is that many on-reserve children and families do not

always have access to the child welfare services defined in relevant provincial

legislation and available to those living off reserves." 17

Yet, this funding formula continues. As the Auditor General puts it, "Quite

frankly, one has to ask why a program goes on for 20 years, the world changes around

it, and yet the formula stays the same, preventative services aren't funded, and all these

children are being put into care." 18

While the Committee appreciates the efforts the Department is making to

develop new agreements based on the enhanced prevention model, the Committee

completely fails to understand why the old funding formula is still in place. Moving to

new agreements should in no way preclude making improvements to the existing

formula, especially as it may take years to develop agreements with the provinces. In

14 Dr. Rose-Alma J. McDonald, Dr. Peter Ladd, et. al., First Nations Child and Family Services Joint National Policy Review, June 2000, page 17. 15 First Nations Child and Family Caring Society of Canada, Wen:de: The Journey Continues, 2005, page 35. 16 Indian and Northern Affairs Canada, Departmental Audit and Evaluation Branch, Evaluation of the First Nations Child and Family Services Program, March 2007, page 48. 17 Chapter 4, paragraph 4.66. 18 Meeting 4, 17:15.

9

the meantime, many First Nations children are taken into care when other options are

available. This is unacceptable and clearly inequitable. The Committee recommends:

RECOMMENDATION 4

That Indian and Northern Affairs immediately modify Directive 20-1 for the funding of First Nations child and family services agencies to allow for the funding of enhanced prevention services, and report back to the Public Accounts Committee on its progress in making this change by 30 June 2009.

The Auditor General also expressed concerns with the new funding

formula. She told the Committee that:

the new formula does not address the inequities of the existing formula. It still assumes that a fixed percentage of first nations children and families need child welfare services. Agencies with more than 6% of their children in care will continue to be hard-pressed to provide protection services while developing family enhancement services. In our view, the funding formula should be more than a means of distributing the program's budget; it should take into account the varying needs of first nations children and communities.

The Committee could not agree more, especially as the Department has known about

this problem in the old formula yet has repeated it in the new formula. The Committee is

very disturbed that the Department would take a bureaucratic approach to funding

agencies, rather than making efforts to provide funding where it is needed. The result of

this approach is that communities that need funding the most, that is, where more than

six percent of the children are in care, will continue to be underfunded and will not be

able to provide their children the services they need. The Committee strongly believes

that INAC needs to develop a funding formula that is flexible enough to provide funding

based on need, rather than a fixed percentage. The Committee recommends:

RECOMMENDATION 5

That Indian and Northern Affairs Canada ensures that its funding formula for First Nations child and family services agencies is based upon need rather than an assumed fixed percentage of children in care, and report back to the Public Accounts Committee on its progress in making this change by 31 December 2009.

10

REALLOCATIONS

In order to moderate the pace at which program expenditures were

growing, in 1995 the Department's annual funding increases were limited to 2 percent.

The First Nations Child and Family Services Program's budget, though, has increased

significantly over the last few years—from $193 million in 1997 to $450 million in 2007.

The Program's needs and consequent expenditures are growing faster than the

department's overall budget. This has led INAC to reallocate funding from other

programs, such as community infrastructure and housing. 19 This means that spending

on housing has not kept pace with growth in population and community infrastructure

has deteriorated at a faster rate.

The OAG recommended that INAC should determine the full cost of

meeting the policy requirements of the First Nations Child and Family Services

Program. While the Committee believes that this is a positive first step, it does not

resolve INAC's continuing problem of constantly having to reallocate funds from one

program to another in order to meet emergencies. This means that other pressing

needs are underfunded. As the Committee is troubled by the problem of continuing

reallocations within INAC, it recommends:

RECOMMENDATION 6

That Indian and Northern Affairs Canada determine the full costs of meeting all of its policy requirements and develop a funding model to meet those requirements.

THE BEST INTERESTS OF CHILDREN

In order to determine whether or not a program is having its intended

effects, it is necessary to set clear and concrete objectives and to collect information

about the program's results as assessed against these objectives. In this case, the goal

of the First Nations Children and Family Services Program should be to ensure that

First Nations children are protected from abuse and neglect and are able to grow up in a

safe environment. INAC should know whether or not children are better off as a result of

19 Chapter 4, paragraph 4.72.

11

this program. Measuring results would allow the department to modify and improve the

program based upon solid empirical information.

However, the audit found that the information collected by INAC is mostly

for program budgeting purposes. INAC has little information on the outcomes of its

funding on the safety, protection, or well-being of children living on reserves. 20 In other

words, INAC does not know whether its funding is in the best interests of First Nations

children.

If INAC had been collecting this information, then perhaps it would have

realized long ago that its old funding formula, Directive 20-1, encouraged agencies to

put children into care, rather than fund family-based prevention services. It is not in the

best interests of children to place more children into care than is necessary, and it is not

in the best interests of children to provide funding based on a fixed percentage of costs

rather than on need.

The Committee believes that if INAC were to set criteria based on the best

interests of children and to measure the results of its program on the basis of these

criteria, then it might better manage the program to meet the needs of First Nations

children. Consequently, the Committee recommends:

RECOMMENDATION 7

That Indian and Northern Affairs Canada develop measures and collect information based on the best interests of children for the results and outcomes of its First Nations Child and Family Services Program.

CONCLUSION

The Committee recognizes that some progress is being made. Tripartite

agreements have been signed with Alberta, Nova Scotia, Saskatchewan, and First

Nations groups. The new approach to child welfare in Alberta is a model that the

government is seeking to replicate across Canada. As Ms. Fraser noted, "I think we can

be somewhat hopeful when we look at the Alberta model, which is recognizing that

services have changed and funding based on that example is going to go up quite

2° Chapter 4, paragraph 4.86.

12

significantly." 21 The Committee also recognizes the increase in funding for the First

Nations Child and Welfare Services Program over the last few years from $193 million

in 1996-1997 to a projected $523 million in 2008-2009.

Despite this progress, First Nations children are particularly vulnerable

and the necessity of adequate funding of First Nations child and family services cannot

be denied. The Committee is disappointed with the bureaucratic approach taken by

Indian and Northern Affairs Canada to funding its First Nations Child and Family

Services Program. It is continuing to use a funding formula with extensive flaws and its

new funding formula incorporates some of those same flaws. The formula is not based

on the actual cost of delivering services, is not sufficiently linked to the costs of meeting

provincial requirements and standards, does not reflect the current range of child

welfare services, nor does it take into account the varying populations and needs of

First Nations communities

Continuing to use a flawed funding formula means that First Nations child

and family services agencies are often underfunded, and First Nations children and their

families do not receive the services that they need. Instead, First Nations children are

much more likely to enter into and stay in care, and their families are not given the full

range of support services to help them provide a safe environment for their children.

This situation is not tenable. The Committee sincerely hopes that INAC will take prompt

action to ensure that First Nations children are provided appropriate and adequate

services in a manner that treats them equitably with all other Canadian children.

21 Meeting 4, 17:15.

13

APPENDIX A LIST OF WITNESSES

Date Meeting

2009/02/12 4

Organizations and Individuals

Department of Indian Affairs and Northern Development Christine Cram, Assistant Deputy Minister,

Education and Social Development Programs and Partnerships Sector

Odette Johnston, Director,

Social Programs Reform Directorate

Mary Quinn, Director General,

Social Policy and Programs Branch

Michael Wemick, Deputy Minister

Office of the Auditor General of Canada Jerome Berthelette, Principal

Ronnie Campbell, Assistant Auditor General

Sheila Fraser, Auditor General of Canada

15

REQUEST FOR GOVERNMENT RESPONSE

Pursuant to Standing Order 109, the Committee requests that the government table a comprehensive response to this Report.

A copy of the relevant Minutes of Proceedings (Meetings Nos. 4, 6 and 8) is tabled.

Respectfully submitted,

Hon. Shawn Murphy, MP

Chair

17

This is Exhibit "B" to the Affidavit of Cindy Blackstock, sworn before me in the City of Ottawa, in the Province of Ontario,

this 31st day of May, 2011.

1+1 Department of Justice Ministere de la Justice Canada Canada

Resolution Branch 90 Sparks Street room 341 Ottawa, Ontario K1A 0H4

Telephone: 613-996-1910 Facsimile: 613-996-1810

May 6, 2008

Mr. John Chamberlin Manager, Investigations Canadian Human Rights Commission 344 Slater Street, 8 th Floor Ottawa, Ontario K1A 1E1

Dear Mr. Chamberlin:

Re: Assembly of First Nations / First Nations Child and Family Caring Society of Canada Complaint - CHRC File No: 20061060

Introduction Indian and Northern Affairs Canada (INAC) would like to situate the First Nations Child and Family Services Program (FNCFS Funding Program). Two decades ago there were very few federally funded First Nations Child and Family Service agencies and very limited child welfare services were provided on reserve. So while the existing regime has its challenges, it is important to recognize that far more services are being provided today to help address the needs of First Nations children. In support of the First Nations Child and Family Services on reserve (FNCFS), INAC has more than doubled the program's funding over the past 10 years from $193 million in 1996/97 to approximately $481 million in 2007-2008.

INAC has already embarked on a major transition of the FNCFS Funding Program. INAC updated its program authorities for FNCFS in 2007 to include a broader range of placement options including kinship care (care provided by extended family members) and post-adoption subsidies (monthly payments to adoptive parents) and supports to encourage permanent placement for children. The authorities were also updated to allow for the transition of the FNCFS,Funding Program to an enhanced prevention focused approach keepin'g in lino With, the trend in provinces and territories to move towards a more prevention fo6used approach in the delivery of Child and Family Services programs.

INAC is currently working with provinces and First Nations on an incremental basis to transition the FNCFS Funding Program to the enhanced prevention focused approach with a view to achieving better outcomes for First Nations children and families. The implementation of an enhanced prevention focused approach began in Alberta in 2007-2008, and INAC is moving forvat on this transition, province by province, to transition the Program across the country over the next five years. The

tripartite discussions underway include clarifying roles, responsibilities and practice standards for the effective delivery of services - 14 First Nations that are more culturally appropriate and reasonably comparable to services provided off reserve in similar circumstances.

Largely as a result of the contribution that the Canadian Human Rights Act (Act) has made to the advancement of Canadian individual rights over the years, this Act together with the Charter of Rights and Freedoms constitute two of the most important legal pillars of our society. Similarly, thb professionalism of the Human Rights Commission and Tribunal, as demonstrated by their work over the years, is equally recognized by the Government of Canada. In this context, it is not surprising that the Government of Canada recently introduced Bill C-21 which seeks to broaden the application of the Act to include complaints resulting from the administration of the Indian Act and related regulations.

Similarly, the government of Canada is also a firm believer in the principle that the Act must be applied in a matter that upholds the intention of Parliament as expressed through the provisions of the legislation. Upon a close and careful examination of the Complaint filed by the Assembly of First Nations and the First Nations Child and Family Caring Society of Canada (Complainants), Indian and Northern Affairs Canada has come to thq,Conctritsion that this principle has not been satisfied in the present instance. TherefOr ?e, INA respectfully requests that the Canadian Human Rights Commission (CHRC) dismiss or decline taking jurisdiction over the Complaint on the basis that the Complainanth are third parties, the Complaint is beyond the jurisdiction of the CHRC and the Complaint does not set out a prima facie case of discrimination. A more,detailed explanation of our position follows.

The Complaint To date much of the correspondence has' been directed towards clarifying the scope of the Complaint. By letter dated January 30, 2008, the CHRC advised that INAC is the sole respondent to this Complaint.

The allegations of discrimination based on race, ethnic and national origin focus on funding INAC provides for FNCFS. The Complaint alleges that through INAC's policies such as Directive 20-1 and the First Nations Child and Family Services National Program Manual ("FNCFS Funding Program"), tripartite and bilateral agreements etc., INAC provides less money for FNCFS on reserve compared with provincial funding off reserve. As stated by a CHRC official:

•• .1 "In short, it is the funding of child welfare'geNices and families on reserve and how such funding is structured that is the subject of the complaint."'

Letter from John Chamberlin, Manager, Investigations CUIRC to Marion Breen, Counsel, Department of Justice dated January 30, 2008. [Attached at Schedule B Tab I.]

The Complainants argue that as a result of the differences in funding, First Nations children resident on reserve are more likely to be placed in care than children living off reseNe.

INAC's Position on the Complaint Pursuant to subsection 40(2) of the Canacliannyman Rights Act (Act) the CHRC should refuse to deal with this complaint 4s .the complainants are third parties acting without the consent of alleged victims. Through the CHRC complaint process the Complainants essentially want INAC to provide additional funds to change the funding structures and address questions of jurisdictional gaps between federal and provincial governments in regards to FNCFS on reserve.

However, as is well known to the Complainants and described above, INAC is involved in ongoing consultations with First Natrons Agencies/Bands and the provinces aimed at reviewing and improving funding structures for FNCFS on reserve. Treasury Board recently approved additional funding for FNCFS in Alberta with approximately $96 million being provided to First Nations over the next 5 years beginning in 2007-08, along with an overall $43 million over 2 years in the 2008 federal budget to extend to other provinces moving forward with the transition.

By contrast, the Complainants are not party to any funding agreement covering FNCFS, nor are they responsible for the delivery of such services. In these circumstances, the CHRC complaint process is disconnected from the First Nations Child and Family Services Agencies (FNCFS Agencies) and First Nations which are working directly with provinces (as well as the Yukon Territory) and INAC towards assessing and improving where necessary, IINAC's funding structures for FNCFS on reserve.

Pursuant to subsections 41(1)(c) and (d) of the Act the CHRC should refuse to deal with this Complaint on the basis that the Complaint is beyond the jurisdiction of the CHRC and the Complainants have failed to make out a prima facie case of discrimination:

(i) The allegations do not concern differaNal treatment because of race, or national origin or ethnic origin as required by the Act. The Complainants instead argue discrimination by comparing federal funding of FNCFS on reserve against provincial funding of such services off-reserve. The provincial versus federal funding comparator confirms that the complaint is beyond the jurisdiction of CHRC.

(ii) The CHRC does not have jurisdiction in this matter. INAC does not deliver child and family services on reserve as required for section 5 of the Act to apply as alleged by the Complainants. INAC's role is limited to funding.

We submit that on a serious review of INAC's submissions, a prima facie screening of the Complaint must lead to the conclusion that the Complaint should not proceed further through the CHRC complaint procasS.'4

4

No Prima Facie Case of Discrimination - Implications Why First Nations children are placed in care at higher rates than non-First Nations children is a complex question and clearly a matter of great concern to INAC and indeed First Nations and Canadian society at t isir-ge. However, on its face this Complaint does not present a prima facie Case of discrimination within the jurisdiction of the CHRC. The Complainants recognize that there is a disproportionate level of Aboriginal children in care both on and off reserve with a best estimate that 30-40% of all children in care in Canada are Aboriginal. 2 These statistics suggest the reason why there are so many First Nations children in care on reserve will not be found by the CHRC analyzing federal versus provincial funding. From the perspective of the CHRC's jurisdiction, the statistics confirm that the Complaint does not set out a prima fade case of systemic discrimination as alleged.

The complex nature of the funding and provision of child welfare services to Aboriginal children calls into question the ability of the CHRC to fulfill a fundamental purpose of the Act which is to provide effective remedies to eliminate discrimination. As stated by the Supreme Court in Robichaud v. Canada (Treasury Board):

"... I have no doubt that if the Act is to achieve its purpose, the Commission must be empowered to strike at the heart of the problem, to prevent its recurrence..."'

Moreover, if the 'heart of the problem' is the higher proportion of Aboriginal children in care, it seems clear that the provision of inci -bgsed funding for FNCFS on reserve will not resolve the problem for Aboriginal children off reserve.

Delivery of child and family services on and off reserve is carried out pursuant to provincial and territorial child welfare legislation and regulations. Child and family services off reserve are within the constitutional jurisdiction of the provinces. Provincial and territorial responsibility for child welfare means inevitable variations in the range of services provided. Consistent within this framework as INAC negotiates funding directly with First Nations Bands or Agencies and with the provinces / Yukon Territory, there are consequently different applications of INAC's policies in different provinces and the Yukon Territory.

! r - Conclusion INAC continues to consult directly with the First Nations and the provinces and the Yukon Territory to assess and improve, where necessary, funding structures for child and family services on reserve. For example, as announced by the federal government as part of the February 2008 Budget:

Assembly of First Nations, First Nations Child & FamitYParing Society of Canada, Human Rights Complaint Form, Summary of Complaint para. 2 [Attached at Schedule 13 Tab 2.1

[1987] 2 S.C.R. 84, at paras. 11-15. [Attached at Schedule C Tab 1.]

5

"In April 2007, the Government announcecla partnership with the Province of Alberta and Alberta's First nations to shift on-reserve child and family services in Alberta to a prevention-based approach. This approach has had success in providing families with better access to early intervention, family engagement and referrals to community resources to help them before a crisis occurs."

"Budget 2008 commits $43 million over the next two years to fund similar agreements in other provinces."

INAC continues to be committed to a province by province review of the funding structures applicable to FNCFS on reserve. The policy initiatives respecting FNCFS funding on reserve demonstrate that the is§uwpresented to the CHRC is best resolved through the ongoing policy and political dialogue already underway between INAC and the First Nations and provinces, which deliver child and family services on reserve.

Please find enclosed Schedule "A" which sets out in greater detail INAC's submissions respecting sections 40 and 41 of the Act. Copies of the documents referenced in this letter and in the attached submissions are enclosed in Schedule "B". The jurisprudence similarly referenced is Adlosed in the attached Schedule "C". INAC will provide its substantive position on FNCFS on reserve should the CHRC accept jurisdiction over this matter.

Yo rs truly,

11.

Marion Breen Counsel

Enclosures

4 Department of Finance Canada - Budget 2008 - Budget Plan - Chapter 4 - Leadership at Home and Abroad at p. 9. (Attached at Schedule B Tab 3.]

This Annex forms part of. and is to be read in conjunction with, Canada's letter to the CI IRC dated May 0. 2008

SCHEDULE "A" — SECTIONS 40 AND 41 SUBMISSIONS

The Assembly of First Nations and First Natipns Child and Family Caring Society of Canada (the Complainants) allege that the funding provided by Indian and Northern Affairs Canada (INAC) for child and family services on reserve is discriminatory. As a result the Complainants seek from the complaint process an injection of $109 million in year one of a proposed multi-year adjustment to the funding formula. As described in the complaint, the alleged discrimination is seen by comparing INAC's funding of child and family services on reserve with provincial funding of child and family services off reserve. As a question of direct service delivery, the Complainants argue that due to the discrimination by INAC, First Nations children are overrepresented in care.

The policy and potential broader social issues clearly and implicitly raised in the complaint are serious matters. However, the allegations do not constitute prima facie discrimination within the bounds of the Canadian Human Rights Act (Act).

As framed in the complaint, the alleged victims are the First Nations agencies, First Nations Bands, Tribal Councils and provinces / Yukon Territory which provide child and family services on reserve and receive funds from INAC for this purpose. Significantly however INAC is iglready in ongoing and direct consultations wtth the First Nations and provincial or territorial service providers towards assessing and improving, where necessary, funding structures for child and family services on reserve. In these circumstances pursuant to subsection 40(2) of the Act, the CHRC should refuse this complaint on the basis that the Complainants are third parties acting without the consent of the alleged victims.

INAC requests that the Canadian Human Rights Commission (CHRC) refuse to deal with the complaint. Pursuant to subsections 41(1)(c) and (d) of the Act the complaint is beyond the jurisdiction of the CHRC and no prima facie case of discrimination has been established:

'

• The allegations do not constitute discrimination because of race, national or ethnic origin as alleged by the Complainants.

• INAC does not provide a service within the meaning of section 5 of the Act.

This Annex Corms pan of, and is to be read in conjunction with. Canada's letter to the CHRC dated May 6. NOS.

INAC submits that on a serious examination of its jurisdiction, the CHRC must conclude that subsections 41(1)(c) and (d) of the Act apply to the circumstances of this complaint'.

A. Scope of Complaint

1. By letter dated November 12, 2007, the Complainants clarified that the allegations of discrimination concern the provision of services by I NAC defined as follows:

"the provision of federal funding for child and family services for Canadians (the "Service"); through Directive 20-1 of INAC, the 1966 Indian Welfare Agreement between the Federal and Ontario governments, the new Alberta or other tripartite funding agreements, other Federal —Provincial or Federal-Self-Government bilateral funding agreements, and through the applicable portions of the Canada Health and Canada Social Transfer, as they relate to funding of child and family services for non-native and off-reserve Aboriginal peoples."`

2. By letter dated January 30, 2008, John Chamberlin, Manager Investigations, CHRC further confirmed:

"Indian and Northern Affairs (INAC) is the sole respondent in this matter. With respect to the addition of other respondents, I have explained to the complainants that specific details as to why these organizations would be included would be needed. In any event, this would be a matter between the Commission-and the complainants."

"The complaint only deals with funding of services to on-reserve persons." 3

3. The Complainants did not dispute the CHRC's articulation of the issues.

4. INAC has therefore provided submissions on the basis that the issues are restricted to INAC's funding of child and family services on reserve as compared with provincial funding of child and family services off reserve.

Canada Post Corp, v. Barrene, [2000] F.e.J. at padis. 2225 No. 539 (FCA). [Attached at Schedule C Tab 2.] 2 Letter from Chantelle Bryson, Counsel for the Complainants to John Chamberlin. Manager Investigations CIIRC dated November 12, 2007 [Attached at Schedule B Tab 4.1 3 Letter from John Chamberlin. Manager Investigations CHRC to Marion Breen, Counsel Department of Justice dated January 30, 2008 (Attached at Schedule B Tab 1.]

This Annex forms part of. and is to he read in conjunction with. Canada's letter to the CHRC dated May b, 2008. 3

5. INAC reserves the right to make additional section 41 submissions should the scope of the complaint change.

6. INAC will set out its substantive position on child and family services on reserve should the CHRC decide the complaint is within its jurisdiction.

B. History of First Nations Child and Family Services

7. In the late 1970s, First Nations leadership across the country increasingly demanded jurisdictional control over child welfare on reserve. As a result of First Nations initiatives, the first formal tripartite agreement governing the delivery of child and family services to First Nations was created in the Province of Manitoba to establish First Nations child and family services agencies in Manitoba. Under the terms of the tripartite agreement, the Province in accordance with the provincial child welfare legislation provided the mandate for First Nations to operate child welfare services; First Nations delivered the service; and INAC provided funding. 4

8. In 1990, as a result of further policy development, INAC received Cabinet and Treasury Board authority:to create a national funding program called the First Nations Child and Family Services Program ("FNCFS Funding Program"). Where it applies, the FNCFS Funding Program includes funding formula Directive 20-1, which defines how financial support is to be provided for child and family services on reserve. 5

9. By 2005, there were 105 First Nations child and family service agencies in eight provinces. Total FNCFS Funding Program expenditures grew from $193 million in 1996-1997 to $417 million in 2005-06.

10. The FNCFS Funding Program was:intended to reflect regional variations across the country and is universally'based on the philosophy of delegated authority from the provina4 and the Yukon Territory. That is, to receive funding through Directive 20-1, INAC requires the provinces and the Yukon Territory mandate and regulate the service provider, whether First Nations agencies, Bands or Tribal Councils, according to the respective provincial or territorial legislation and standards. 6

Social Policy and Programs Branch Headquarters, Indian and Northern Vain. Canada: First Nations CNN and Family Services National Program Manual (Ottawa Indian Affairs and Northern Development: 2004) at para. 1.1.5 p. 4.1Attached at Schedule B Tab 5.1 Mid. Manual [Attached at Schedule B Tab 51

6 !hut Manual para. 1.3.2 p. 5. [Attached at Schedule B Tab 5.1

Tins Annex forms pan or, and is to be read in conjunction with. Canada's letter to the CHRC (haat May 6, 2008. 4

11. Each province and the Yukon Territory has its own legislation and ensuing protocols respecting the delivery of child and family services on and off reserve.

12. INAC does not deliver child and family services on or off reserve.

13. INAC provides funding for child and family services on reserve.

14. The provinces and the Yukon Territory fund and deliver child and family services off reserve including with respect to First Nations living off reserve and for the Inuit and Metis.

C. Current Status of the FNCFS Funding Program and Other Funding By INAC For Child and Family Services On Reserve - Overview

15. In regards to child and family services, further to Treasury Board approved terms and conditions INAC has authority to provide funding via: the FNCFS Funding Program; the 1991 Administrative Reform Agreement Between INAC and the Province of Alberta; Targeted FNCFS Funding Approach; and the 1965 cost sharing agreement with Ontario.

16. In every case, as a term and condition of funding, the First Nations Child and Family Service Agency ("FNCFS Agency"), or First Nations Band or Tribal Council must have delegated authority from the province to deliver child and family services under provincial or territorial child welfare legislation.

17. In the FNCFS Funding Program, funding formula Directive 20-1 is applied as follows:

• The FNCFS Funding Program funds 1b8 FNCFS Agencies or Societies across the country as mandated by the relevant province. The FNCFS Agencies serve approximately 447 of 573 First Nations communities.

• INAC funds the Yukon government to deliver child and family services in the Yukon.

• In Newfoundland and Labrador, the provincial government provides all child and family services directly to the three First Nations in the province. INAC has one funding agreement with Newfoundland and Labrador for services they provide to the Innu First Nations. In addition, INAC through a bilateral funding agreement provides funds to the Miawpukek First Nation. The MieW04ek First Nation purchase child and family services from the prOvinee through a separate agreement.

1

This Annex lorn-is part (A; and is lo be read in conjunction with, Canada's letter to the CHRC dated May b. 2008

5

• In New Brunswick, INAC provides funding for child and family services to eleven FNCFS Agencies for fourteen First Nations on reserve communities. The FNCFS Agencies deliver all child and family services on reserve. One First Nation is currently receiving child and family services (CFS) from the province.

• In Prince Edward Island, INAC funds First Nations to purchase CFS from the province and funds the proVince directly for maintenance.

• In Nova Scotia, INAC funds one FNCFS Agency (Mi'kmaw Child and Family Services of Nova Scotia) pursuant to Directive 20-1 which delivers services to all provincial residents normally resident on reserve. INAC is a party to a tripartite child and family service agreement with the province and the FNCFS Agency.

• In Quebec, First Nations Bands or Tribal Councils deliver child and family services on reserve to 19 of 27 First Nations communities. In the other 8 First Nations communities, INAC reimburses the province of Quebec for its delivery of child and family services on reserve.

• In Manitoba INAC funds FNCFS Agencies to provide child and family services on reserve. INAC has no child and family service agreement with Manitoba as the FNCFS Agencies deliver all child and family services on reserve.

• In Saskatchewan, INAC enters into separate funding agreements with FNCFS Agencies, which in turn deliyer child and family services on reserve. One First Nations community does not have a FNCFS Agency and therefore receives child and family services directly from the province of Saskatchewan.

(i) FNCFS Funding Program / Directive 20-1

18. The funding formula applicable to the overview in the preceding paragraph is found in Directive 20-1. - Pursuant to Directive 20-1, the funding recipient (FNCFS Agencies, First Nations, the provinces and the Yukon) receives funding in two ways. First, they receive an annual fixed amount of funding for "Operations", which includes administration (e.g. staff salaries, rent, and insurance). Prevention (including "least disruptive measures") and protection casework also fits in the Operations component. The quantum of funds provided to a FNCFS Agency for "Operations" is formula-driven, based on an amount per First Nations child on reserve under the age of 19, plus an amount per band, plus a fixed amount per Agency based on remoteness.

This Annex forms part of. and is to be read in conjunction with, Canada's letter to the CIIRC dated May 6. 2008. 6

19. Second, pursuant to the FNCFS Funding Program there is funding for "Maintenance", which reimburses the 'rnicFs Agency for all actual costs of maintaining children in out of homes placements (e.g. foster home, group home, or institution). By definition therefore, the Maintenance portion of the funding is not fixed.

(ii) INAC Funding for Child and Family Services On Reserve in B.C.

20. In British Columbia, INAC reimburses the province for its delivery of child and family services on reserve pursuant to the terms of a Memorandum of Understanding. Maintenance rates are calculated based upon a provincial average daily per diem for the care type, plus an administrative charge based upon provincial overhead costs, divided by total annual care days.

21. INAC provides funding to FNCFS Agencies in British Columbia which deliver child and family services on reserve. In practice, FNCFS Agencies in British Columbia receive funding based on Directive 20-1 for Operations but are funded for maintenance according to a blended average provincial rate (i.e. not actual4 As a result, some FNCFS Agencies in British Columbia are known to carry budget surpluses from the maintenance funding

(iii) INAC Funding of Child and Family Services On Reserve in Ontario — (the 1965 Agreement)

22. In Ontario, INAC funds the provincial government directly for the provision of on reserve child and family services in accordance with the "1965 Agreement" between the two parties.

23. Pursuant to the 1965 Agreement, Canada reimburses Ontario for a formula-based share of provincial tósIs for child welfare services to status Indian children ordinarily resident on reserve. Specifically, for protection services, the provincial Ministry of Children and Youth Services (MCYS) funds each First Nation Child and Family Services Agency and Children's Aid Society based on the provincial funding framework. For prevention services, MCYS funds FNCFS, CAS and individual First Nations based on provincially established funding levels for Child and Family Intervention, CoiT,Imunity Support Services and First Nation Initiatives. For both preveptiori'and protection services, INAC reimburses the province approximately 93% of eligible expenditures in accordance with the 1965 Agreement.

fins Annex forms pan of, and is to be read in conjunction with, Mada's letter to the CIIRC dated May 6, 2008. 7

(iv) INAC Funding For Six Alberta First Nations - Child and Family Services Are Provided Directly by the Province

24. Pursuant to the 1991 Administrative Reform Agreement, INAC reimburses the province of Alberta for direct delivery by Alberta of child and family services to all children ordinarily resident on seven reserves.

25. INAC reimburses Alberta based on funding formulas set out in the 1991 Administrative Reform Agreement concerning various social services, including child and family services., AI 2007, Treasury Board authorized INAC to continue the fundtng.arrangOients as set in the 1991 Administrative Reform Agreement.

26. The seven First Nations, which receive services directly from the province continue to have access to prevention services under the Alberta Response Model. The seven First Nations provided the experiential basis for the new Targeted FNCFS Funding Approach explained below.

(v) Targeted FNCFS Funding Approach: Child and family services on reserve in Alberta

27. In Alberta, a 2007 Treasury Board authority provides for INAC funding under Flexible Transfer Payments to First Nations funding recipients to provide child and family services to on reserve residents (Targeted FNCFS Funding Approach). As developed in Alberta, the new approach is also referred to as the Treaty 6, 7, 8 Enhancement Framework.

28. Under this Targeted FNCFS Funding Approach, separate funding for prevention measures has been infr .Aced in Alberta. The quantum of funds provided to a FNCES Agency orto a First Nation now involves three streams of investment: maintenance, operations, and prevention/least disruptive measures. This is different from Directive 20- 1, which includes funding for prevention measures as part of the Operations budget.

29 The Operations and Prevention funding is formula driven. The formula is based on 6% of the registered child population being in care along with a number of multiple at risk families which determines the operational and prevention service funding requirements of the FNCFS Agency. Prevention funding is provided to prevent and reduce the number of children coming into child welfare protective custody and focuses on providing services and supports to the family.

This Annex forms part or, and is to be read in conjunction with. Canada's tenet to the CHRC dated May 6, 2008.

30 Maintenance is provided as a Flexible Transfer Payment to support eligible expenses for children in protective care. A base Maintenance amount was determined for each FNCFS Agency in Alberta.

31 Any surplus amounts in Prevention, Operations or Maintenance may be retained and redirected by the FNCFS Agency or First Nation to other child welfare program activities.

32 To receive funding under the Targeted Funding Approach, the FNCFS Agency or First Nation commit to carrying out a three or five year Business Plan with goals, strategies and performance measures as set by the FNCFS Agency or First Nations itself. The business plans must first be acceptable to the Province. INAC supports the introduction of Business Plans as an effective method of ensuring financial accountability and will approve business plans in this regard.

33 The Targeted Funding Approach and Treaty 6, 7, & 8 Enhancement Framework was developed as a result of a tripartite working group with representation from INAC, Treaty 6, 7, and 8 First Nations and the Province of Alberta.

(vi) Targeted FNCFS Funding Approach: Ongoing Consultations

34 Following the lead of the Targeted Funding Approach working in Alberta, a primary policy objective'of I NAC is to continue consultations with First Nations and provinces and the Yukon Territory to assess and determine whether or to what extent new investments are needed to improve the funding structures for child and family services on reserve. INAC's policy approach emphasizes incremental investments and direct consultations on a province by province basis.

35. As a policy objective, INAC targets 291,3 as the year it will have similar tripartite Enhancement Frameworks'iK'place across the country which will offer the option of the Targeted FNCFS Funding Approach.

36. As with the FNCFS Program / Directive 20-1, INAC's role under the Targeted Funding Approach is restricted to funding.

D. Preliminary Objection — Third Party Complaint

37. In this case, the complaint has been filed by representatives of two First Nations organizations who do not claim to be victims of the alleged discrimination. Neither of the two First Nations organizations is party to any funding agreement or arrangeme int covering child and family

ibis Annex forrm pan of, and is to he read in conjunction with. Cfanada's letter to the CI IRC dated May (), 2008. 9

,

services on reserve. Neither Complainant delivers child and family services on reserve.

38. The Complainants argue that the alleged discrimination would be remedied if INAC injects $109 million in year one of their multi-year adjustment to the funding formula to redress existing funding shortfalls.

39. INAC is already engaged in consultations with First Nations communities and Agencies, the provinces and the Yukon Territory responsible for delivery of services on reserve ("stakeholders") towards improving funding structures for child and fami,ly services on reserve.

40. Through a recent and successful consultation process, INAC in partnership with stakeholders in Alberta introduced a new funding formula (Targeted FNCFS Funding Approach). All FNCFS Agencies in Alberta have voluntarily signed on to the new funding formula.

41. INAC is in ongoing consultations with stakeholders in other provinces aimed at achieving similar improvernts to INAC's funding of child and family services on reserve.

42. If the complaint is permitted to proceed, the CHRC may assess proposed remedies which may not reflect the interests of the First Nations Bands, or FNCFS Agencies providing child and family services on reserve under delegated authority from the provinces and are negotiating improvements to child and family services funding on reserve with INAC and the relevant provinces.

43. We submit the CHRC should not exercise its discretion to proceed with this third party complaint, which in any event does not set out a complaint based on any of the enuttierated grounds of discrimination under the Act as explained below.

E. The Complaint Is Beyond the Jurisdiction of the CHRC

1. The Federal - Provincial Comparison is Inapplicable

44. Pursuant to policy INAC has implemented and continues to develop frameworks in consultation with First Nations and the provinces to guide INAC funding of child and family services on reserve. While section 91 of the Constitution Act empowers Canada to enact legislation in respect of Indians and Indian lands, to date Canada has not exercised this discretionary power in the area of child and family services on reserve.

45. Instead INAC policies expressly recodnize provincial responsibility for welfare services under section 92 of the Constitution Act, which includes

'Nis Annex forms part of. and is to be read in conjunction with. Canada's ktter to the CI IRC dated May 6, 2008. 10

protection and care of all children on and off the reserve. In all cases, INAC policies in respect of child and family services refer to provincial and territorial legislation for the mandates and standards to govern service delivery on reserve. INAC'stmal position respecting child and family services on reserve is further supported by section 88 of the Indian Act which states that laws of general application (such as child welfare legislation) apply on reserve unless and to the extent that such laws conflict with the Indian Act and its treaties. 7

46. In this case the complainants seek to establish discrimination by comparing INAC's policies, which provide funding frameworks for child and family services on reserve, againSt provincial funding of child and family services off-reserve.

47. INAC cannot defend against the discrimination allegations as framed by the Complainants. In regards to the.comparison with off reserve services, INAC does not control the quality, nature, funding structure of child and family services provided by the province or territory.

48. We submit this comparison cannot found a claim for discrimination under the Act. Moreover such a cross-jurisdictional comparison cannot amount to differential treatment based on any ground under the Act. In the result, we submit that pursuant to gubOection 41(1) (c) of the Act, the CHRC should refuse to proceed to *Investigation on the basis that the complaint is beyond its jurisdiction.

2. INAC Is Not A Service Provider Within the Meaning of the Act

49. The complaint alleges discrimination under section 5 of the Act:

"5. Denial of good, service, facility or accommodation — It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public"

(a) "to deny, or to deny abctss to, any such good, service, facility or accommodation to any individual, or"

(b) "to differentiate adversely in relation to any individual, on a prohibited ground of discrimination."

50. In this case the complaint concerns the provision of funds byINAC to First Nations Bands, Tribal CoUncilsjprovinces and the Yukon Territory for child and family services on reserig Child and family services however are delivered by the recipient of the funds. To fall within the

Manual. supm note 4 at para. 1.2 p. 5. [Attached at Schedule B Tab 51

rhis Annex forms pan of, and is to be read in conjunction with. Canada's letter to the CI IRC dated May 6. 2008. 1 I

scrutiny of section 5 of the Act, the respondent must therefore be the provider of the goods and/or services.

51. Case law establishes that a funder will not be found to be a service provider for the purposes of human rights legislation, unless its role extends beyond providing funds to encompass significant obligations specific to the provision of services itself.

; 52. In Bitonti v. British Columbia° the British Columbia Council of Human

Rights dealt with the question of whether the B.C. Ministry of Health was liable for discrimination suffered by foreign-trained doctors in the granting of internships. The Ministry provided funding to hospitals for a specific number of internships but did not have any involvement in the selection of interns or the content of their training (with the exception of a special program at a particular hospital to assist foreign-trained doctors). The Council found that there was ndiapparent service relationship between the complainants and the Ministry and therefore that the Ministry was not a "Service Provider" within the meaning of the B.C. human rights legislation. 9

53. In Martyn v. Laidlaw Transit Ltd. 1° the Alberta Human Rights Panel ("Panel") considered a complaint in relation to the alleged lack of availability of accessible taxis for the disabled. The complaint named the relevant taxi companies as well as the City of Edmonton and the Alberta Ministry of Transportation as respondents.

54. The Panel found that the Ministry was not a "service provider", as its only role was to provide funding for rnuriidpal transportation projects. It did not establish priorities or transportatigh initiatives, nor did it have any supervisory role with respect to transportation systems or taxi services. 11

55. By contrast, the City of Edmonton and the Edmonton Taxi Commission were performing duties pursuant to statutory provisions. In Martyn the City had chosen to enact the "Accessible Taxi Regulation", pursuant to the Municipal Government Act. In theTanel's view, by taking the step to regulate the City and the Commissiohliad taken control over the taxi business in an "all-inclusive manner" and thereby became service providers for the purposes of the Alberta human rights legislation, even though neither the City nor the Commission directly operated taxi cabs 12

'4 [1999] B.C.11.R.T.D. No. 60. [Attached at Schedule C Tab 31 9 Ibid. !Monti at para. 315. [Attached at Schedule C Tab 3.1

Donna Martyr, v. Laid/ow 7) -ansit Ltd. o/a Yellow Cab Ltd_41berta Co-op Taxi Line Ltd., Edmonton 7'axi Conunission, City of Edmonton, /Mena Transportation (October 31,2005). No. N2003/12/0289 (Alberta Human Rights Commission Panel). [Attached at Schedule C Tab 41

Mid. Marlyn at paras. 356-65. [Attached at Schedule C Tab 4.] I- Ibid. Marlyn at paras:349-355. [Attached at Schedule C Tab 4.]

*Ibis Annex forms pan of, and is to be read in conjunction with, Canada's letter to the CHRC dated May b. 2001i.

56. In this case, there is no federal child welfare legislation governing services to either on or off reserve children. INAC's role is strictly a function of policy and is restricted to providing funds to either the province or the Yukon Territory and/or First Nations organizations, which in turn deliver the child welfare services on reserve. Across Canada, the mandates and service standards governing child welfare services on reserve are referable to provincial and territorial child welfare legislation.

57. In our view the absence of a federal child welfare statute and regulations, especially in the presence of governing provincial child and family legislation, provides a complete answer in the negative as to whether INAC is a service provider for purposes of section 5 of the Act.

58. The Complainants argue the "service of allocating and transferring funds to another for use has been found to be a service for purposes of human rights legislation in Canada". However, all cases cited in support of this proposition were complaints against respondents who directly delivered the service; the respondents in the cases cited would be analogous to the FNCFS Agencies / bands or provinces which deliver child and family services rather than INAC:

• Battlefords and District Co-operatIvg Ltd. v. Gibbs 13: The service at issue: The employer's provision Of trisurance policy/ benefits to employees; The Respondent: The Employer who administered the policy and decided not to extend insurance benefits to the complainant.

• Shubenacadie Indian Band v. Canada (CHRC) re Macnutt 14: The service at issue: Band's refusal to provide social assistance program to non-Indian spouses living on-reserye; The respondent: The Band Council which administered the w14bre program.

• Chipperfield v. British Columbia (Minisily of Social Services) 15: The service at issue: Entitlement to transportation costs under the B.C. Benefits Income Assistance Act; The Respondent: The B.C. Ministry responsible for administering the 'Gain' regulatory regime.

13 Baillefords and DistriaCo-operative Ltd. v. Gibbs,[19961S.C.J. No. 55. [Attached at Schedule C Tab 5.1

Shubenacadie /whim I3and V. Canada (Canadian Ilnmay Rights Commission) (re Macnut!), [I 997] F.C.J. No. 1481. tAttached at Schedule C:Tab.60

Chipperlield v. &lash Columbia (Minis/1y of Social Services). [1997] B.C.H.R. TD. No. 20. [Attached at Schedule C Tab 7]

•his Amex limns part of, and is to bc read in conjunction with, Canada's later to thc ClIRC datcd May 6. 200g. 13

• Saskatchewan Human Rights Commission v. Saskatchewan (Department of Social Services) 16: The service at issue: Financial benefits under a statutory social assistance program. The Respondent: The Saskatchewan Department of Social Services which administered and delivered the social assistance plan pursuant to provincial statute.

, 59. Unlike the cases cited by the Complainants, the FNCFS Funding

Program evidences a clear distinction between the funding role played by INAC and the service delivery role played by FNCFS Agencies/ Bands, Tribal Councils, the Yukon Territory or provinces.

60. An important objective of the FNCFS Funding Program is to be compatible with First Nations aspirations for self-government. The FNCFS Funding Program can be an interim step in the process of moving toward self-government. 17 To describe INAC as the service provider of the First Nations child and family services would contradict a key aspect of the FNCFS Funding Program.

61. INAC's right to review or undertake compliance measures in relation to child welfare services on reserve is consistent with financial accountability obligations and requirements. In no case does INAC have an ongoing obligation to oversee the day to day operations of child welfare services as would be required for a finding that it is a "service provider" for the purpose of section 5 of the Act.

62. In these circumstances, the complaint , is outside the jurisdiction of the CHRC and therefore the CHRC hould refuse to deal with the complaint pursuant to subsection 41(1)(c) of the Act.

F. The Allegations Do Not Make Out A Prima Facie Case of Discrimination

63. Furthermore, as expressed by the Corhplainants, the allegations do not make out a prima facie case of discriniination based on race, national or ethnic origin. On its face therefore, the complaint is subject to dismissal under subsection 41(1)(d).

64. As noted in the accompanying letter, the presence of a disproportionate number of First Nations and Aboriginal children in care both on and off reserve, suggest many variables factor into this social issue. On these

' 6 Saskatchewan Human Riglus Commission v. Saskatchewan (Department of Social Set -vices, [1988] S.J. No. 464 (Sk.C.A.). (Attached at Schedule C Tab 8.]

17 Manual. Supra Note 4 at para. 1.3.3 p. 5:tAllac'hed at g-tdItedule B Tab 5.1

'I -his Annex forms pan of, and is to he read in conjunction with, Canada's letter to the CI IRC dated May 6, 2008. 1 4

facts, a discrimination analysis focus0 on provincial versus INAC's funding of child and family services would be a misapplication of the Act.

65. The complaint reports that there are 23,000 to 28,000 Aboriginal children in care in the Canadian child welfare system. INAC officials estimate that approximately 40% of the December 31, 2006 Indian Register age 0 — 18 population are reported as living off reserve. In regards to child and family services on reserve INAC provides funds for approximately 9,000 Indian children ordinarily resident on reserve in care out of the parental home. Comparing the allegations contained in the complaint with the number of children in care on reserve, INAC estimates 61 to 68% of the Aboriginal children in care in the Canadian child welfare system live off reserve. Therefore 61 to 68%,of the Aboriginal children in care are there despite what the Complainants argue is greater access to prevention services provided by provincial child welfare services off reserve.

66. Another variable, also outside the jurisdiction of the Act, which can affect child and family services both on and off reserve is whether the service operates in a rural or remote location. This factor is recognized in I NAC's funding of child and family ser,yices on reserve by including a fixed amount per FNCFS Agency biked, on remoteness. It is a well known challenge for provincial as well as First Nations child and family services to provide prevention programs in rural areas due to diminished availability of resources as compared with urban areas.

67. The complaint alleges that across the country INAC's funding of child and family services is deficient as coMpared with the province and cited in particular the deficiencies in the funding formula found in Directive 20- 1, which is used in the FNCFS Funding Program. Yet the Complainant, First Nations Child and Family Caring Society of Canada has already acknowledged through its extensive research on the subject that it does not know how INAC funding of childapd family services compares with provincial child and family''seryites Ofr reserve. In this regard, the Complainant made the following remarks in WEN:DE We Are Coming To The Light of Day:

• Due to poor responses to survey questionnaires, the Complainant acknowledged the research results made it "very difficult to determine with any reliability the range of services typically offered by the provinces or the costing formulas to support supb works". 18

18 First Nations Child and Family Caring Society of Canada, WEN:DE We Are Coming To the Light of Day (First Nations Child and Family Caring Society of Canada: 2005) at 41. [Attached at Schedule B Tab 6.

Thk AnTIL:x forms part or, and is to ht: read in conjunction with, Canada's letter to the CHRC dated May (4 2008. 15

• Two of the seven provinces to whom Directive 20-1 applies completed the WEN:DE survey, which asked such questions as the range of child welfare services provided, number of First Nations children and families serviced, the nature of the funding formula in use in each region, including adjustments for remoteness, capital costs and extraordinary costs. Another three provinces provided partial answers. The survey responses led the Complainant to conclude:

"When the provincial funding formula was applied to First Nations child and family service agencies in this [anonymous] province the majority of agencies would receive less funding than under the Directive." 9

• In the WEN:DE report, the Complainant noted that FNCFS Agencies in British Columbia had reported surplus funding due to its application of the FNCFS Funding Program. 2° '

G. Conclusion

68. We reiterate that INAC is currently consulting with First Nations and provinces to determine and improve funding for child and family services on reserve. Success in this regard is evidenced by the implementation of the Targeted Funding Approach for child and family services on reserve in Alberta. We submit that this process of direct consultation gets to the heart of the issues identified by the Complainants. Direct consultation between INAC and the service providers (FNCFS Agencies, Bands, Tribal Councils, Province andthe Yukon Territory) is the appropriate forum to address funding 'for child and family services on reserve.

69. The CHRC should refuse to deal with this complaint on the basis that the Complainants are third parties. The Complainants seek remedies for child and family services funding on reserve, without the consent of the FNCFS Agencies, First Nations, Tribal Councils, provinces and the Yukon Territory who are directly deliVering child and family services on reserve.

70. Moreover, the Complainants have not established a prima facie case of discrimination, nor identified systemic discrimination on the basis of race, national or ethnic origin. In these circumstances, the CHRC should refuse to deal with this matter at the preliminary screening stage pursuant to subsections 41(1)(c) and (d) of the Act.

Ibid WEN:DE at 52. [Attached at Schedule B Tab 6.) 2t} Ilnd WEN:DE at 48. [Attached at Schedule B Tab 61

,

This is Exhibit "C" to the Affidavit of Cindy Blackstock, sworn before me in the City of Ottawa, in the Province of Ontario,

this 31st day of May, 2011.

Amended pursuant to the Order of Madam Prothonotary Aronovitch dated August 21.2009.

Original filed November 13, 2008 Court File No. T-1753-08

FEDERAL COURT

ATTORNEY GENERAL OF CANADA

-and-

Applicant

FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA AND ASSEMBLY OF FIRST NATIONS

Respondents

AMENDED NOTICE OF APPLICATION

TO THE RESPONDENTS:

A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant appears on the following page.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at OTTAWA.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Court Rules, 1998, and serve it on the applicant's solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application.

Copies of the Federal Court Rules, 1998, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

November 13 th , 2008

Issued by: (Registry Officer)

Amended: August 21, 2009 Address of local office: 90 rue Elgin Street

Ottawa, Ontario K1A OH9

2

TO: John A. Terry Torys L,LP Suite 3000 79 Wellington Street West Box 270. TD Centre Toronto, ON M5K 1N2

Tel: (416) 865-8245 Fax: (416) 865-7380

Solicitor for the Respondent. Assembly of First Nations

Daniel Poulin Canadian Human Rights Commission 344 Slater Street, 8 th Floor Ottawa, ON K1A 1E1

Tel: (613) 947-6399 Fax: (613) 993-3089

Solicitor for the Canadian Human Rights Commission

Mel Hogg Stikeman Elliott LLP Barristers and Solicitors 5300 Commerce Court West, 199 Bay Street, Toronto. ON M5L 1B9

Tel: (416) 869-6826 Fax: (416) 947-0866

Nicholas McHaffie Stikeman Elliott LLP B rristers and Solicitors 1600 - 50 O'Connor Street Ottawa, • N K1P 6L2

Tel: (613) 566-0546 Fax: (613) 230-8877

Solicitors for the Respondent, First Nations Child and Family Caring Society of Canada

•••••• •, ••••• •••••.. `NO,. ••••,Pit. ./ l•,,,•••■•

3

APPLICATION

This Application is brought pursuant to paragraphs 18.1(4)(a), [] (c) and (d) of

the Federal Courts Act. This is an application for judicial review in respect of the

September 30, 2008 decision of the Canadian Human Rights Commission (the

"Commission") in complaint number 20061060 of the First Nations Child and Family

Caring Society of Canada and the Assembly of First Nations against Indian and

Northern Affairs Canada. The decision was received by the Applicant on October 14,

2008. In its decision, the Comm:ssion decided, pursuant to subsection 41(1) of the

Canadian Human Rights Act (the "CHRA"), that it had jurisdiction to deal with the

Respondents' complaint against Indian and Northern Affairs Canada. The Commission

also decided, pursuant to section 49 of the CHRA, to request that the Chairperson of

the Canadian Human Rights Tribunal institute an inquiry into the complaint.

The Applicant makes application for:

1. an Order setting aside the decision of the Commission and dismissing the

Respondents' complaint against Indian and Northern Affairs under section 41

of the CHRA;

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4

2. alternatively, an Order setting aside the decision of the Commission and

referring the matter back to the Commission with the direction that it be dealt

with in accordance with the reasons of this Court;

3. its costs of this application; and,

4. an Order granting such further and other relief as counsel may request and

this Honourable Court may permit.

The grounds for the application are:

1. The Respondent, First Nations Child and Family Caring Society of

Canada, is a national non-profit organization working with First Nations

child and family services agencies in Canada ("FNCFCS"). The Respondent,

Assembly of First Nations, is a national representative organization of First

Nations in Canada ("AFN").

2. On or about February 26, 2007, the Respondents filed a complaint against

Indian and Northern Affairs Canada ("INAC") with the Commission. The

Respondents alleged that INAC discriminated adversely against Registered

First Nations children and families resident on-reserve in the provision of

services, contrary to section 5 of the CHRA. In particular, the Respondents

alleged that under INAC Directive 20-1, which pertains to the funding of First

5

Nations child and family service providers on-reserve, INAC provides funding

to on-reserve child and family service providers that is inequitable as

compared to the provision of funding by the Provinces and Territories of

Canada to child and family service providers off-reserve. The Respondents

allege that the grounds for the alleged inequitable funding provided by INAC

are race and national ethnic origin.

3. The allegations in the complaint deal exclusively with 1NAC's funding of child

and family service providers on-reserve as compared to funding provided by

the Provinces and Territories of Canada to child and family service providers

off-reserve.

The Applicant requested that, pursuant to section 41 of the CHRA, the

Commission not deal with the Respondents' complaint on the grounds that

the complaint is beyond the jurisdiction of the Commission and that the

complaint meets one of the criteria stipulated within paragraph 41(1)(d) of the

CHRA. In particular, the Applicant submitted that INAC is not a service

provider within the meaning of section 5 of the CHRA. The Applicant further

submitted that INAC does not differentiate adversely in its funding of child and

family service providers, as it only funds child and family service providers on-

reserve while the Provinces and Territories of Canada, not INAC, provide

funding for child and family services off-reserve.

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6

5. On or about October 14, 2008, the Applicant received the Commission's

decision, pursuant to section 41 of the CHRA, that it would deal with the

Respondents' complaint against INAC. The Commission also decided,

pursuant to section 49 of the CHRA, to request that the Chairperson of the

Tribunal institute an inquiry into the complaint.

6. The Commission acted without jurisdiction or beyond its jurisdiction or refused

to exercise its jurisdiction, erred in law and based its decision on an

erroneous finding of fact made in a perverse or capricious manner or without

regard for the material before it in deciding to deal with the complaint and

requesting the Chairperson of the Tribunal to institute an inquiry into the

complaint against INAC.

7. The Commission acted without jurisdiction or beyond its jurisdiction or refused

to exercise its jurisdiction, erred in law and based its decision on an

erroneous finding of fact made in a perverse or capricious manner or without

regard for the material before it in deciding that INAC was a "service provider"

within the meaning of section 5 of the CHRA, or alternatively, in failing to

determine that INAC is not a "service provider" within the meaning of section

5 of the CHRA.

8. The Commission acted without jurisdiction or beyond its jurisdiction or refused

to exercise its jurisdiction, erred in law and based its decision on an

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7

erroneous finding of fact made in a perverse or capricious

manner or without regard for the material before it in deciding that it had

jurisdiction to determine whether INAC's funding of child and family service

providers on-reserve was "to differentiate adversely" within the meaning of

section 5 of the CHRA or, alternatively, in failing to decide that such funding

does not "differentiate adversely" within the meaning of section 5 of the CHRA

and, specifically, the Commission erred in accepting that the recipients of

provincial and territorial child and family services funding off-reserve can be

used as a comparator to the recipients of federal child and family services

funding on-reserve.

9. The Commission erred in law and exceeded its jurisdiction in failing to dismiss

the complaint under paragraph 41(1)(c) of the CHRA.

10. The Commission erred in law and exceeded its jurisdiction in failing to dismiss

the complaint under paragraph 41(1)(d) of the CHRA.

11. The Commission based its decision on erroneous findings of fact within the

meaning of paragraph 18.1(4)(d) of the Federal Court Act.

12. The Commission erred in ignoring relevant considerations and basing its

decision on irrelevant considerations.

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8

13. Section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended.

14. Sections 5 and 41 of the Canadian Human Rights Act, R.S., 1985, c. H-6, as

amended.

15. Such further and other grounds as counsel may advise and this Honourable

Court may permit.

The application will be supported by the following material:

1. the Certified Record of the decision of the Canadian Human Rights

Commission;

2. supporting affidavit(s) of appropriate Crown official(s); and,

3. such further and other material as counsel may advise and this Honourable

Court may permit.

The Applicant requests pursuant to Rule 317 of the Federal Court Rules, 1998,

that the Canadian Human Rights Commission send a certified copy of the following

material that is not in the possession of the Applicant but is in the possession of the

Canadian Human Rights Commission to the Applicant and to the Registry:

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9

The full record of all materials before the Canadian Human Rights

Commission at the time it rendered its decision to deal with the

Respondent's complaint.

Dated at Ottawa, this 12th day of November, 2008

Amended: August 27. 2009

-12 John H. Sims, Q.C. Deputy Attorney General of Canada Per: Mitchell Taylor, Q.C.

Department of Justice 900-840 Howe S -e Vancouver. BC V6Z 2S9

Tel: (604) 666-2324 Fax: (604) 666-2710

Counsel for the Applicant

omfcissi. aths, etc.

This is Exhibit "D" to the Affidavit of Cindy Blackstock, sworn before me in the City of Ottawa, in the Province of Ontario,

this 31st day of May, 2011.

Court File No. T-1753-08

FEDERAL COURT

BETWEEN:

ATTORNEY GENERAL OF CANADA

Applicant - and -

FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA AND THE ASSEMBLY OF FIRST NATIONS

Respondents

FRESH AS AMENDED NOTICE OF MOTION (Respondents' Motion to Strike the Application)

TAKE NOTICE THAT THE RESPONDENTS will make a motion to the Court at a special

sitting on September 11, 2009 at 9:30 a.m. at Ottawa, Ontario.

THE ESTIMATED DURATION of the hearing of the motion is three hours.

THE MOTION IS FOR:

a) an Order of the Court striking the within application;

b) in the alternative, an Order of the Court staying the within application until

disposition of the Complaint before the Canadian Human Rights Tribunal in file

T1340/ 7008;

c) the costs of this motion and this application;

d) the costs of those aspects of the Respondents' motion seeking case management and a

stay pending the hearing of the within motion, in any event of the outcome of this

motion and/or application; and

e) such further and other relief as counsel may advise and this Honourable Court deem

just.

5571821 v4

THE GROUNDS FOR THE MOTION ARE:

Background

a) the Respondents filed a human rights complaint (the "Complaint") with the Canadian

Human Rights Commission (the "Commission") on February 17, 2007, in regard to the

First Nations Child and Family Services Program ("FNCFS Program") of Indian and

Northern Affairs Canada;

b) the Complaint alleges discrimination on the basis of race with regard to the funding of

the FNCFS Program, the allocation and division of those funds and the delay or denial

of services under the FNCFS Program to on-reserve status Indian children when

jurisdictional disputes arise with regard to their residency on reserve;

c) on September 24, 2008, the Commission decided to deal with the Complaint and to

referred the Complaint to the Canadian Human Rights Tribunal (the "Tribunal") for

an inquiry;

d) on this application for judicial review, the Attorney General seeks to quash the

Commission's decision and to dismiss the Respondents' Complaint before the

Tribunal has had the opportunity to inquire into the matter;

Striking the Application: No Chance of Success

e) pursuant to s. 41 of the Canadian Human Rights Act (the "Act"), the Commission is

obligated to deal with a complaint brought under the Act unless it is "plain and

obvious" that the complaint should be dismissed on the basis of narrow enumerated

grounds;

0 the Commission's determinatiOn of whether a complaint falls within the limited

circumstances under which the Commission may decline to deal with a complaint is a

subjective decision afforded substantial deference and only to be interfered with by

this Honourable Court where it is "clear and beyond doubt" that the Tribunal has no

jurisdiction;

5571621 v4

g) the Attorney General cannot possibly meet the remarkably high burden of

demonstrating that it is dear and beyond doubt that the Tribunal has no jurisdiction to

hear the Complaint, as the matters it has raised on this application are not matters of

jurisdiction and, in any event, are not matters that are clear and beyond doubt;

h) as such, the Attorney General has no chance of prevailing on the within application,

and the application should be struck at this time;

Striking the Application: Adequate Alternate Remedy Available

i) the Attorney General asks this Honourable Court to quash the Commission's decision

and dismiss the Complaint on the basis of its arguments about whether lNAC

provides a "service" and whether there is an appropriate "comparator group" in the

context of a discrimination analysis under the Act;

these issues of service and comparator groups are already before the Tribunal, which

can grant the ultimate remedy sought by the Attorney General, namely the dismissal

of the Complaint;

k) the Tribunal will have the opportunity to make its determination on these issues in the

context of and with the assistance of a full factual record, which it is currently

building;

1) the issues of service and comparator group are within the specific expertise of the

Tribunal, the body that Parliament intended to make such decisions;

m) the Application ought to be struck on the basis that the Tribunal can provide an

adequate alternate remedy for the issues raised by the Applicant;

Stay of Proceedings

n) it is in the interests of justice for the within Application to be stayed pending the

decision of the Tribunal with respect to the Complaint;

o) there are serious issues to be tried with respect to whether the funding and policy

decisions taken by INAC for the FNCFS Program are "services" for purposes of the

5571821 v4

Act and its remedial provisions and whether comparison can be made between

services provided by the federal government and similar services provided in

provincial and territorial jurisdictions for the purpose of a discrimination analysis

under the Act;

p) the Respondents will be irreparably harmed if these issues are determined in the

absence of a complete evidentiary record;

q) the harm to the Respondents from proceeding on an incomplete record outweigh the

interests of the Applicant in proceeding with this application before the Tribunal

determines the Complaint;

r) if the Tribunal makes determinations on these issues, the Applicant can bring a

judidal review application of those determinations before this Court

s) it is not cost-effective, expedient or a good use of public resources to deal with these

issues concurrently before two adjudicative bodies;

t) Rules 3, 4, 32, 35(2), 36 of the Federal Courts Rules;

u) sections 18_2, 18.3, 18.4(1), 18_5 and 50(1) of the Federal Courts Act;

v) such further and other grounds as are set out in the evidence and written

representations filed in support of this motion; and

w) such further and other grounds as counsel may advise and this Honourable Court may

permit

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

Motion:

a) the Notice of Application herein;

b) the Certified Record of the Commission;

c) excerpts from the Affidavit of Tina Scollan, sworn December 11, 2008, filed on behalf

of the Attorney General on the within application;

5571821 v4

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Tsilidrobis Mcg4f_totbfel Hogg (613).T66446

Fax': (615):040,7

Solicitors for the Respondent, First Nations Chad and Family Caring Society of Canada

- and -

TOKY9UP Barristers & Solicitors 79 Welltngton,StreetWest, Suite3000 Box 270, TO C:entre Toronto, Ontario, M5K 1N2

John A. Terry Tel: (416) 865-8245 Fax: (416)865-7380

Solicitors for the Respondent, Assembly of First Nations

5571821 v4

TO:

DEPARTMENT OF JUSTICE CANADA John H. Sims, QC. Deputy Attorney General of Canada

Mitchell R. Taylor, Q.C/Kelly Keenan ABORIGINAL LAW SECTION 900-840 Howe Street Vancouver, BC V6Z 2S9

Tel: (604) 666-2324 Fax: (604) 666-2710

Solicitors for the Applicant, Attorney General of Canada

AND TO: CANADIAN HUMAN RIGHTS COMMISSION 344 Slater Street, 8th Floor Ottawa ON KlA 1E1

Daniel Poulin Tel: (613) 995-1151 Fax: (613) 996-9661

Counsel for the Commission

5571821 v4