Elie Wiesel, the late Nobel Laureate, once said that “without memory, there is no culture. Without memory, there would be no civilization, no society, no future”.

Ten years ago this week, the legal fight for equal services for Canada’s First Nation children began. Most Canadian children receive family and children’s services relatively easily, through provincially regulated and funded agencies. First Nations children, however, struggle to receive basic services which rarely meet provincial standards and suffer from underfunding by the federal government.

After years of delays and hearings, the Canadian Human Rights Tribunal (CHRT) issued its ruling in January 2016 that First Nations Family and Children’s Services are discriminatory on the basis of race and national ethnic origin and ordered the Government of Canada to immediately end the discrimination and reform the system.

The face of the movement is Jordan Rivers Anderson, a First Nations child from Norway House Cree Nation in Manitoba who was born with serious medical challenges in 1999.

Shortly after Jordan’s second birthday, medical staff felt his condition had improved to the point where he could live in a family home located near the hospital. However, he never left the hospital because Health Canada, Indigenous Affairs and the provincial government could not decide who was responsible for covering the cost.

Jordan passed away in hospital in 2005. Jordan’s Principle is named in his memory and requires that First Nations children access all government services on the same terms as other children. It was unanimously passed by the House of Commons in 2007 — but never properly implemented.

The CHRT ruling outlined three steps for the government to take. First, it should provide immediate financial assistance to support First Nations agencies currently struggling to provide child and family services. Second, it should fully implement Jordan’s Principle. Third, using analysis presented to the court, the Government of Canada must completely reform its First Nations Family and Children Services system.

Just how is the government performing on these legal obligations? Notwithstanding some positive developments, the response by the federal government has fallen short in the eyes of many, yielding two compliance orders by the Tribunal. A third non-compliance hearing is scheduled to start in March.

Why pay 100 per cent of the cost of removing children from their homes instead of paying to keep them at home, which is often better option for children and less costly to the taxpayer? Why pay 100 per cent of the cost of removing children from their homes instead of paying to keep them at home, which is often better option for children and less costly to the taxpayer?

Under the current system, agencies receive federal funding for operational costs and preventative programs based on an outdated funding formula developed in the 1980s. The formula is not adjusted for inflation or changes in community needs, meaning that prior to the Tribunal’s decision, some First Nations agencies had not seen an increase in prevention funding for 27 years.

Indigenous Affairs continues to apply a formula called the ‘Enhanced Prevention Focused Approach’, which was ruled discriminatory by the Tribunal. The result is that many agencies are still struggling to meet provincial standards and are unable to deliver services communities need.

Although agencies are struggling to cover their operating costs and provide critical services, another stream of services is reimbursed 100 per cent by the Government of Canada: out-of-home care, such as foster care. Because of this, there is an incentive for First Nations children to be placed into foster care, even if it is not necessary — solely because these agencies have no other option.

Rarely are these foster homes located in the child’s own community. Only 44 per cent of the time are these children placed in families identifying as aboriginal. It makes no sense. Why pay 100 per cent of the cost of removing children from their homes instead of paying to keep them at home, which is often better option for children and less costly to the taxpayer?

This example provides insight into why 48 per cent of Canadian children in out-of-home care are First Nations, despite making up just 7 per cent of all children in Canada.

Canada’s non-compliance with the CHRT ruling has not gone unnoticed. In response to an NDP motion, the federal government promised additional funds, including an immediate release of $155 million last October to address urgent concerns in child welfare. This was over and above the $71 million provided in the 2016 federal budget for 2016-17.

Last July the government announced an additional $382 million over three years. Unused funds are to be returned to consolidated revenue (i.e., used to lower the federal budgetary deficit). Federal documents dated January 17, 2017 note that only $5 million has been spent. The immediate concern is that the government and public service will struggle to utilize the resources in an effective manner.

The most recent crisis hit the Wapekeka First Nation. Last month, two girls died by suicide. Many others are considered a high risk. Mental health funding for children at risk is required by the Ontario Child and Family Services Act. The Tribunal addresses the lack of federal funding for this in all three decisions. The federal government’s response is that it will “discuss” providing the funding — even though it was ordered to stop its discriminatory conduct. In situations like Wapekeka, immediate financial assistance can save lives.

Last fall, the government appointed a special representative on child welfare to perform consultations. B.C. Indigenous leaders accused the government of using this as a stalling tactic. That would be a tragedy. These new discussions must respond directly and in a timely manner to the CHRT ruling to completely reform the governance and funding relationships in the First Nations Family and Children Services system.

First Nations children are going through a period of extreme stress. This is a national crisis. There are broad-based commitments to help. Canada must move immediately to comply with the legal orders and establish agreements with First Nations and provincial governments based on the United Nations Declaration on the Rights of the Child.

Our childrens’ lives are at stake. So is — as Elie Wiesel reminds us — our sense of our common humanity.

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