Facilitating Access to Health and Social Services for English-speaking First Nations Communities in Quebec: The Federal and Quebec Governments’ Obligations Presented by: Peter W. Hutchins, Cécile Capela-Laborde & OLIVIER JARDA CESFNCQ FORUM , MONTREAL, FEBRUARY 6, 2018

Our mandate Explain the legal obligations of the federal and Quebec governments Provide recommendations Health and social services provided to Aboriginal peoples on and off reserve provided and/or funded by the federal government or the Quebec government

outline Jurisdiction over health and social services In general For Aboriginal Peoples Federal delegation of the provision of health and social services to Quebec Applicable standards to Canada and Quebec when providing and funding health and social services to Aboriginal Peoples Recommendations

Jurisdiction over health and social services in general General rule: constitutional jurisdiction and responsibility for the provision of health and social services rests with the provinces Federal government plays an important role (e.g., spending power, public health)  

Constitutional principles Canada’s internal constitutional order BNA Act of 1867 Constitution Act, 1982 Federalism and constitutional supremacy (Reference re Secession of Quebec, [1998] 2 SCR 217 at para 72) Fiduciary duty Cooperative federalism

Jurisdiction over health and social services for aboriginal peoples Exclusive federal jurisdiction, as per s. 91(24) of the Constitution Act, 1867, over “Indians, and Lands reserved for the Indians” The underlying purpose of s. 91(24) is to: Protect the interests of Aboriginal Peoples against those of local settler majorities and Maintain uniform national policies with respect to “Indians”

Jurisdiction over health and social services for aboriginal peoples The federal Crown is “the government vested with primary constitutional responsibility for securing the welfare of Canada’s Aboriginal peoples” (Delgamuukw v British Columbia, [1997] 3 SCR 1010, at para 176)

Federal delegation of the provision of health and social services to Quebec … does not transfer federal responsibilities toward Aboriginal Peoples The federal government still has a responsibility to ensure that First Nations have access to equitable health and social services Applying provincial norms does not respect s. 91(24) of the Constitution Act, 1867 First Nations standards must be developed by First Nations or in collaboration with the Federal government

Importance of international law for interpreting Canadian law International framework Universal Declaration of Human Rights Convention on the Rights of the Child International Covenant on Civil and Political Rights Convention for the Elimination of all Forms of Racial Discrimination United Nations Declaration on the Rights of Indigenous Peoples

Applicable standards for the provision and funding of health and social services The honour of the Crown and reconciliation Aboriginal Peoples’ constitutional rights protected by s. 35 of the Constitution Act, 1982 Rights to self-determination and self-governance The standard of substantive equality established in Caring Society Jordan’s Principle

The standard of substantive equality Findings of the CHRT in First Nation Child and Family Caring Society v. Canada (2016): When funding and/or providing services to Aboriginal people, the federal government is subject to the scrutiny of the Canadian Human Rights Act, and thus it cannot discriminate and must ensure substantive equality. Requiring substantive equality for First Nations in the funding or provision of services sets a new precedent.

The standard of substantive equality What does substantive equality mean? Different from formal equality Formal equality = applying the same standard to everyone Substantive equality = making distinctions to account for differences and historical disadvantages What does substantive equality require? Being attentive to the social and political context and the needs, circumstances, and historical disadvantages suffered by a particular group of people

The standard of substantive equality Ensuring substantive equality entails: Taking specific measures including the full span of legislative, executive, administrative, budgetary and regulatory instruments at every level in the State apparatus (paras. 445, 453); Providing culturally appropriate services (paras. 422, 425). What is culturally appropriate depends on the specific culture of each First Nation community (para. 423); Meeting the real needs of specific First Nation communities (paras. 425, 455); Not perpetuating historical disadvantages endured by Aboriginal peoples (paras. 403, 455);

The standard of substantive equality Ensuring substantive equality entails (continued): Addressing the intergenerational trauma caused by residential schools (para. 422); Narrowing the gap between First Nations and the rest of Canadian society (para. 403); Improving outcomes for Indigenous peoples in the provision of services (para. 427). Providing comparable quality and accessibility of services to those provided to Canadians off-reserve (para. 455); Breaking the cycle of outside control that outside forces have exerted over Aboriginal culture and identity (paras. 425, 426)

What does this standard mean for English-speaking First Nations communities in Quebec? The unique needs resulting from being both First Nation and English-speaking in a predominantly francophone province have to be taken into account “One-size fits all” approach is not substantive equality Funding and services need to be tailored, regardless of whether provided as part of a modern treaty

The standard of substantive equality applies to both Quebec and Canada Federal government: s. 5 of the Canadian Human Rights Act Quebec government: s. 15(1) of the Canadian Charter and s. 10 of the Quebec Charter

Jordan’s Principle Prevents First Nations children from being denied equal access to health and social benefits or protections available to other Canadians as a result of being Aboriginal First Nations children should not experience denial, delays or disruption of services available to other Canadian children due to jurisdictional disputes Legally binding (Pictou Landing 2013) Ensures funding for equitable services (Caring Society 2016)

Recommendations Government of Quebec – Access Programs Ensuring First Nation participation in the development of Access Programs Appointing English-speaking First Nations representatives to the provincial committee and regional committees Developing an Aboriginal Access Program  

Recommendations Government of Quebec – Documentation Improving access to information concerning health and social services, such as government documents, which are often only in French (i.e., funding translation services)

Recommendations Government of Quebec – Access to health services in neighbouring provinces Complying with the portability criterion under s. 11 of the Canada Health Act Concluding bilateral reciprocal billing agreements with Ontario and New Brunswick Making special arrangements with communities in neighbouring provinces facilitate First Nations’ access to health and social services

Recommendations Quebec and the federal government Ensuring that all agreements with respect to the provision and funding of health and social services, self-government agreements and modern treaties respect the constitutional principles and the substantive equality criteria established in Caring Society This can be achieved by stating these constitutional principles and the applicable standard of substantive equality in the preamble of any agreement

Recommendations Government of Canada – Control of health and social services by First Nations Ensuring the respect and implementation of First Nations’ rights to regulate and fully participate in decision-making regarding health and social services (development, implementation, delivery and funding) Supporting capacity-building and work toward First Nations providing health and social services themselves (e.g., funding for training)

Recommendations Government of Canada - Substantive equality Ensuring equitable funding and services for English-speaking First Nations communities Involving First Nations communities in the development of funding regimes Facilitating necessary communication and cooperation between Aboriginal and larger provincial service providers Training employees of Quebec’s provincial institutions to ensure that they meet English language and Aboriginal cultural competencies (see TRC call to action n° 57)

Recommendations Government of Canada – When services are provided by Quebec The federal government must: Be involved in any agreement with the province and provide supplementary funding necessary to ensure equitable access to services Enforce s. 11 of the Canada Health Act in Quebec Provide funding where provincial health and social services fall short Implicate First Nations and give them necessary funding for identifying gaps in services

Thank you for YOUR PARTICIPATION – QUESTIONS and discussion For more information, visit our website at www.hutchinslegal.ca and feel free to contact us: Peter W. Hutchins phutchins@hutchinslegal.ca 514-849-2403 Cécile Capela-Laborde ccapela@hutchinslegal.ca 514-849-2403 (234) Olivier Jarda ojarda@hutchinslegal.ca 514-849-2403 (237)