Ottawa backs off of court proceeding on First Nations child health care

The federal government is no longer headed to court over last year's landmark ruling on the delivery of First Nations child health care, an ongoing irritant in Ottawa's relationship with First Nations communities.

A human rights tribunal found the government discriminates against First Nations children on reserves

Indigenous Services Minister Jane Philpott rises during question period in the House of Commons on Parliament Hill in Ottawa on Tuesday, Oct. 24, 2017. She announced the government will not go to court to challenge a human rights tribunal ruling. (Adrian Wyld/Canadian Press)

The federal government is no longer headed to court over last year's landmark ruling on the delivery of First Nations child health care, an ongoing irritant in Ottawa's relationship with First Nations communities.

In January 2016, the Canadian Human Rights Tribunal ruled that the Canadian government knowingly discriminated against tens of thousands of children on reserves and underfunded child welfare services for First Nations.

Since the ruling, the tribunal has issued multiple compliance orders to the federal government, demanding it implement Jordan's Principle — a resolution passed in the House of Commons in 2007 affirming First Nations children should have access the same government services as non-Indigenous children.

Ottawa drops Jordan's principle appeal

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4 years ago
'We don't have to go through expensive legal mechanisms to solve problems,' says Indigenous Services Minister Jane Philpott. 6:43

Jordan's Principle is named after Jordan River Anderson, a four-year-old boy with serious and complex medical needs who died in hospital in 2005 after a drawn-out court battle between the federal government and Manitoba over who should pay his home-care costs.

In the case of health care, the principle says when a patient is in need of treatment, the care should be provided first, and any dispute over how those services will be funded can be dealt with at a later date. 

In June, the Liberal government asked the Federal Court to seek "clarity" on two aspects of a compliance order issued by the quasi-judicial human rights tribunal.

They took issue with the fact the tribunal said that requests for health services for First Nations children must be processed within 48 hours. The federal government was also concerned about the tribunal stipulation that it cannot use case conferences, which allow groups of health care professionals to discuss treatment plans.

On Tuesday Indigenous Services Minister Jane Philpott announced an agreement has been reached between the government, the First Nations Child and Family Caring Society, and the Assembly of First Nations. She said the government would be withdrawing its application for judicial review.

Agreement reached

The agreement says there is a legitimate role for clinical case conferencing and it can be used when "reasonably necessary" to understand a child's clinical needs.

The parties also agreed that decisions for care made within a 48-hour window may not always not be in the child's best interests.

"In a situation where irremediable harm is reasonably foreseeable, Canada will make all reasonable efforts to provide immediate crisis intervention supports until an extended response can be developed and implemented," the agreement states.

"For non-urgent cases in which this information cannot be obtained within the 48-hour time frame, representatives from the government of Canada will work with the requester in order to obtain the needed information so that the determination can be made as close to the 48-hour time frame as possible."

Philpott said the agreement had come out of increased collaboration. "Together, we proposed amendments to the May 2017 ruling that are in the best interests of First Nations children, and the tribunal agreed."

Health services for First Nations people living on reserve are funded almost exclusively by the federal government.


  • This story has been clarified from an earlier version to include more details about Jordan's Principle.
    Nov 30, 2017 5:39 PM ET

with files from the Canadian Press