First Nations orgs push back on federal governments attempt to pause child welfare proceedings

The federal government is requesting that the chair of the Canadian Human Rights Tribunal fill two empty positions on the panel overseeing reforms to the First Nations child welfare system before continuing with the case, a move First Nations say will “further delay justice.” When the Tribunal started hearing the case in 2012, the panel consisted of members Sophie Marchildon, Réjean Bélanger and Edward Lustig. Bélanger died suddenly in 2015, leaving just two to oversee the case. Lustig resigned on July 7, leaving just Marchildon. According to the government, the case has gotten more complex since Bélanger’s death. “We write to respectfully request that you exercise your authority to restore the panel to its previous three-member composition,” wrote Justice Canada lawyer Dayna Anderson in a July 28 letter. “The number of parties has gone from two to nine,” and added that “the Tribunal has retained jurisdiction over most aspects of the proceeding and rendered more than thirty-five remedial decisions containing wide-ranging orders,” with just the two members overseeing the case. Now that Lustig is gone, Marchildon told the parties on a conference call on July 21 that she will continue deciding the case, the government said in the letter. But Canada said that Marchildon can’t complete the work on her own. “The panel was constituted as a three-member decision-making body, reflecting the Tribunal’s assessment that the complexity and importance of the issues warranted a multi-member structure,” the government said in its July 28 letter. “As a matter of administrative law, quorum is a requirement of lawful tribunal decision-making. A tribunal or panel must have the minimum number of members necessary to exercise its jurisdiction. Where a multi-member body falls below quorum, its ability to act is constrained and its decision-making authority is impaired.” The case against the government started in 2007 with a complaint filed at the Canadian Human Rights Commission by the First Nation Child and Family Caring Society (Caring Society) and the Assembly of First Nations (AFN). The allegation was that Canada underfunded programs meant to help First Nations children living on reserve who were caught up in the child welfare system. It would be another five years, 2012, before the Tribunal started hearing the case. In 2016, a year after Bélanger died, Lustig and Marchildon issued a landmark decision that said Canada “knowingly and willfully” discriminated against First Nations children. They ordered the federal government to immediately stop the discrimination and that the parties work together to come up with a series of reforms to ensure it doesn’t happen again. The parties spent the next several years either in front of Marchildon and Lustig, or in and out of Federal Court arguing about what the best way to accomplish this. A statement from the AFN, posted on the Caring Society’s website, said this was one of the government’s “latest efforts to disrupt these final proceedings and further delay justice and effective remedies for First Nations child, youth and families.” The AFN said it’s hoping the chair “aligns with the First Nation parties’ position on this issue.” “This process has spanned decades, and First Nations children, youth and families should not need to wait any longer for unnecessary procedural delays to be resolved,” the AFN said. “The Assembly of First Nations urges Canada to uphold its duty under the Honour of the Crown in these final proceedings with transparency, fairness and refrainment from further attempts to hinder the national long-term reform hearing process.” Deal with First Nations Some progress has been made. In February 2025, chiefs in Ontario voted in favour of an $8.4 billion deal that would transfer responsibility of the child welfare system to them. Essentially, it was a deal that a majority of chiefs from across the country turned down in 2024. The money started flowing at the end of May 2026. With the Ontario settlement complete, the Tribunal was proceeding to review a plan for the rest of the country. Both the federal government and the Caring Society and the National Children’s Chiefs’ Committee, a body formed from chiefs from across the country,  proposed plans. It’s not clear if Marchildon is continuing work on examining the two plans. In a submission to the Tribunal in response to the government’s request, the COO and NAN said that “adding new panel members at this late stage would inevitably cause delay, as any newly appointed members would be required to familiarize themselves with the enormous record that spans almost twenty years of evidence and argument.” According to Cindy Blackstock, executive director of the Caring Society, any delay will harm First Nations children. “We join with the National Children’s Chiefs’ Commission, AFN, Chiefs of Ontario and NAN in expressing our deep concern regarding Canada’s attempts to disrupt the Tribunal’s decision-making process at this late stage as it will undoubtedly cause delays (and harms) for children,” said Cindy Blackstock, executive director of the Caring Society. “This unnecessary manoever comes at a time when we have proceedings underway to enforce Canada’s legal obligation to not discriminate against children relating to Jordan’s Principle and child and family.” According to a statement from the Tribunal, the “Chairperson [Jennifer Khurana] has sought the views of the other parties on the request and will be ruling on it in the coming weeks after receiving their submissions.” The AFN argued that “an entire generation has passed; children born when this Complaint was first brought in 2007 are now adults with children of their own. Yet Canada has still not implemented the necessary remedy to address systemic discrimination against First Nations children and youth. “Any step that risks delaying a final, effective and durable remedy must be avoided.” The Caring Society called the government’s plan to fill out the panel “untenable.” “Contrary to Canada’s assertion, the remedial phase is an advanced, ongoing process rooted in an extensive record spanning nearly two decades,” wrote the Caring Society. “The evidence in question concerns the remedies required to eliminate discrimination in First Nations child and family services.” Written decision on Ontario Final Agreement Canada is also fighting the release of the Tribunal’s written decision that explains why it approved the Ontario Final Agreement, or OFA. When approved in February, Marchildon and Lustig said at the time that more detailed reasons would be released at a later date. Now, with Lustig gone, Canada, again, is arguing the Tribunal doesn’t have the authority to issue its full decision. “As a matter of administrative law, Canada cannot consent to the proposed approach,” Anderson wrote for the government, adding that “[that] in our view, take further steps that purport to constitute the issuance of further detailed reasons for the Decision as reasons of the Tribunal.” Continue Reading