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Oct 7, 2021
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In this ground-breaking decision, the Federal Court upheld a ruling of the Canadian Human Rights Tribunal (the “CHRT”), which awarded compensation to an estimated 54,000 First Nations children, parents and grandparents. The CHRT found that the federal government discriminated against First Nations children by (1) significantly underfunding child welfare programs for First Nations children, as well as unnecessarily removing thousands of First Nations children from their homes; and (2) failing to implement Jordan’s Principle, which requires the government to provide services to First Nations children, regardless of disputes between levels of government over jurisdiction and financial liability.

The Federal Court's decision came as the result of over fourteen years of hard-fought litigation. The CHRT’s award is historic both in terms of the overall amount, and in terms of the number of people who will receive compensation. This decision may result in billions of dollars being paid to the thousands of First Nations children and their families who were discriminated against by the federal government.

Background

The original human rights application was brought in 2007 by the Caring Society, together with the Assembly of First Nations. This Application claimed that Canada discriminated against First Nations children and their families by underfunding child welfare services. The Tribunal heard the case over many hearing days in 2013.

In 2016, the CHRT released its decision, holding that the federal government wilfully and recklessly discriminated against First Nations children on the basis of race [“the liability decision”].

The CHRT anchored its findings around two key government failures. First, the government knowingly underfunded the child welfare system on reserve and created incentives for government agencies to take First Nations children into care. This resulted in the unnecessary removal of thousands of First Nations children from their homes, continuing a harmful colonial policy of separating Indigenous children from their communities that began with the residential schools.

Second, the government failed to implement Jordan’s Principle, which resulted in service gaps, denials and delays for services to First Nations children. Jordan’s Principle is a legal obligation that the government must provide First Nations children access to government services when they are needed. Any dispute between levels of government regarding payment should be worked out later. It is meant to prevent First Nations children from being denied essential services or experiencing delays in receiving them.

Jordan’s Principle is named in memory of Jordan River Anderson, a First Nations Child from Norway House Cree Nation in Manitoba. Jordan was born with complex medical needs. He could have been cared for in his home, but the federal government and Province of Manitoba could not agree on who was responsible for paying for that care. Jordan died in hospital at the age of five, never having spent a day at home in his community.

Although the CHRT made its ruling on liability in 2016, it did not make a specific order as to the quantum of damages. In 2019, the CHRT awarded $40,000 in damages for the wilful and reckless discriminatory conduct and the pain and suffering that ensued [“the compensation decision”]. Incidentally, $40,000 is the maximum award the CHRT can award under its enabling statute, and such awards are reserved for the most egregious cases.

More specifically, the CHRT ordered Canada to pay $40,000 to each First Nations child who had been unnecessarily taken into care. The CHRT also awarded damages to the children’s parents or grandparents for situations where the children were not taken into care because of abuse.

Similarly, the CHRT ordered compensation to the children (and their parents and grandparents) who had to leave their homes or were denied services covered by Jordan’s Principle.

The judicial review

Following the Tribunal’s award on damages, the Federal government filed for judicial review of both the CHRT’s orders. In Canada (Attorney General) v First Nations Child and Family Caring Society of Canada, 2021 FC 969, the Federal Court upheld the CHRT’s decision on compensation and eligibility of First Nations children. Fittingly, this 111-page decision was released on September 29, 2021, just one day before the first National Day for Truth and Reconciliation.

The Court dismissed the government’s appeal and held that the government could not both accept the CHRT’s finding that widespread discrimination occurred, and object to it awarding compensation for systemic harm.

The Court also dismissed the government’s arguments that only children who have “status” under the Indian Act are entitled to the protection of Jordan's Principle. The 1876 Indian Act is a widely condemned piece of legislation that authorizes the federal government to regulate the day-to-day lives of First Nations peoples. The Court confirmed that Jordan’s Principle protects children who are members of a First Nation but do not have status under the Indian Act, as well as First Nations children who are not eligible for status but who have a parent/guardian who is eligible for status. The Court reasoned that it was within the CHRT’s jurisdiction to prevent further discrimination by refusing to define ‘First Nations child’ based on the criteria found in the Indian Act.

Whether the federal government will appeal the decision of the Federal Court remains to be seen.  Canada has lost each legal battle in this case. Nonetheless, it would come as no surprise if it  continues fighting the CHRT’s clear ruling that it has engaged in “unprecedented discrimination” against First Nation families particularly given its ongoing legal challenge to  a related CHRT order requiring it to provide the infrastructure funding needed to allow  First Nations child welfare agencies to deliver non-discriminatory services.[1] After many years of obstruction, it is time for Canada to pay the damages awards it owes to thousands of affected people and take the steps needed to ensure that Indigenous children can thrive at home with their families and communities.

**Special thanks to articling student Hannah Goddard-Rebstein for her assistance in drafting this post.



[1] Brett Forester, “Canada files 3rd judicial review of Canadian Human Rights Tribunal ruling” (Sept 24, 2021), APTN National News < https://www.aptnnews.ca/national-news/canada-files-3rd-judicial-review-canadian-human-rights-tribunal/ >

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