1. 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

2. 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

3. 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

4. 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)

5. 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

6. 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”

7. 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)

8. 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

9. 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

10. 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

11. 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.

12. 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

13. 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);

14. 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)

15. 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

16. 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

17. 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)

18. 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

19. 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)

20. 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

21. 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

22. 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)

23. 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)

24. 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

25. Thank you for YOUR PARTICIPATION – QUESTIONS and discussion
For more information, visit our website at and feel free to contact us:
Peter W. Hutchins
Cécile Capela-Laborde
(234)
Olivier Jarda
(237)