Ottawa is asking the Federal Court to “review” two items in the latest Human Rights Tribunal ruling that said Canada was still discriminating against Indigenous children over the delivery of services.

After a lengthy legal fight, the tribunal ruled in January 2016 that Canada was breaking the law by not making equitable health and social services payments to Indigenous children living on reserves. A series of non-compliance orders from the tribunal has been issued to the federal government for failure to abide by the ruling. The last one was issued at the end of May.

Health Minister Jane Philpott said they are seeking clarity from the Federal Court on two specific aspects of the ruling: that requests for services must be processed within 12 to 48 hours, and that they be processed without case-conferencing.

“We fundamentally agree with the intents and principles behind the (CHRT) decision and are absolutely committed to addressing these issues,” said Philpott. “There are two small pieces of the decision we are concerned about and just wanted to go back to them and get some clarification on them because there was some concern as to possibly whether or not their recommendations would be in the best interests of First Nations kids.”

Philpott denied it was an appeal, calling it a review of two aspects of it.

“I think it is technically considered a review of the decision but not the entire decision, just two points in the decision,” she said.

Cindy Blackstock, the executive director of the First Nations Child & Family Caring Society of Canada, who, along with the Assembly of First Nations, has fought Ottawa regarding their failure to deliver equitable services to Indigenous kids, called the move appalling.

“They are appealing. There is nothing called a clarification,” Blackstock said. “If the federal government was seeking just a clarification from the tribunal themselves, why wouldn’t they just ask? They haven’t asked us. I’ve been meeting with them regularly, and they have never raised this.”

On May 26 the tribunal slammed the government’s slow reaction to their January 2016 ruling, saying it squandered “any chance of preventing” the deaths of two Wapekeka First Nations girls, Jolynn Winter, 12, and Chantell Fox, 12. The two took their lives in early January. Their remote, fly-in community is in desperate need of mental health supports for youth.

As for the 48-hour time frame, Philpott said decisions in the vast majority of cases can be made during that span.

“There are some cases where it could be potentially dangerous, unsafe or unwise in making a decision too quickly, a certain amount of clarity needs to be sorted out to make sure it’s in the best interest of kids that a rapid decision is not the wrong decision,” she said.

Regarding forgoing case-conferencing, Philpott said, as a family doctor, she knows you often have to consult with others to make sure the right care is in place.

“By allowing officials to collaborate and bring together all the right resources, we felt that perhaps needed some clarification,” she said. “It is essentially a clarification that is being sought, and a letter is going to the tribunal. If we were too rigidly follow these issues and not allow opportunities for case conferencing, it could be a worse outcome for kids.”

Blackstock said the tribunal’s reference to case conferences is all about money. There shouldn’t be case-conferencing about “who pays” before a child receives service. She said it has never been an issue that doctors shouldn’t discuss patient care and once that care is designed for that child, then the service should be provided without a further case conference.

“I don’t get this . . . . We need to look at this more closely, but we will clearly be in federal court,” Blackstock said.

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The tribunal is worried about long delays before children receive services —some delays can mean life and death.

“The most important thing is the kid. This last week, we dealt with a case in our office of a little girl with cystic fibrosis and required a machine for breathing. Her family had gone through all the processes and has been denied. They came to us as a last resort. We brought it to the attention to Health Canada, and they were able to provide the service,” Blackstock said.