This blog post was written by Rye Dutton, one of our 2021-22 articling students.
On September 29, 2021, in Canada (AG) v. First Nations Child and Family Caring Society of Canada, the Federal Court upheld two monumental rulings from the Canadian Human Rights Tribunal (CHRT) in a long-standing case centered on Canada’s discrimination against First Nations children in the administration of First Nations Child and Family Services (FNCFS). This decision, released the day before Orange Shirt Day and Canada’s first National Day for Truth and Reconciliation, affirms that First Nations children and families harmed by Canada’s discrimination are entitled to compensation.
This case began in 2007, when the First Nations Child and Family Caring Society of Canada (FNCFCS) and the Assembly of First Nations (AFN) filed a human rights complaint against Canada on the basis that Canada discriminated against First Nations children and families who live on reserve by underfunding the delivery of child and family services. In 2016, the Canadian Human Rights Tribunal ruled that Canada’s inadequate funding of FNCFS and failure to uphold Jordan’s Principle amounted to discrimination. (Jordan’s Principle is a child-first principle that guarantees all First Nations children living in Canada timely access to culturally based services and supports. Jordan’s Principle is named in honour of Jordan River Anderson, a First Nations boy from Norway House Cree Nation who lived his entire life in hospital while caught in a jurisdictional dispute between the governments of Canada and Manitoba).
In its 2016 decision, the Tribunal deferred ruling on the compensation owed by Canada as a result of its discriminatory practices until it received additional information from the parties.
At the Federal Court, Canada sought judicial review of various subsequent CHRT decisions that flowed from the Tribunal’s initial finding of discrimination.
Canada’s first application for judicial review asked the court to set aside the 2019 compensation decision (and various modifications of that decision) in which the Tribunal ordered Canada to pay $40,000 to each First Nations child removed from their home as of January 1, 2006. It also ordered Canada to pay this same amount to each child’s parents and/or caregiving grandparent. Canada argued that The Tribunal misapplied the law and overstepped its powers in this decision.
The second application for judicial review filed by Canada challenged a 2020 Tribunal decision that clarified and expanded the scope of Jordan’s Principle. This decision affirmed that this Principle applies to the following groups of children, regardless of whether they live on or off reserve:
- Children who have or are eligible for Indian Act status
- Children who are covered by a First Nation’s self-government agreement or arrangement;
- Children who are a member of a First Nation (regardless of their Indian Act status), and children with a parent or guardian who is eligible for status (regardless of the child’s Indian Act status).
Canada argued the Tribunal had acted outside its authority and unreasonably expanded the scope of Jordan’s Principle by creating two new categories. Canada also argued that the Tribunal’s decision failed to meet the requirement of procedural fairness.
In its September 29 decision, the Federal Court rejected Canada’s arguments and dismissed its request for judicial review. The court found that Canada had failed to establish that the Tribunal’s decisions were unreasonable.
In the decision, Justice Favel, a member of Poundmaker First Nation, considered the case within the larger framework of reconciliation. He commended the good will of both parties in working to remedy Canada’s unprecedented discrimination but noted that “the good work of the parties is unfinished. The parties must decide whether they will continue to sit beside the trail or move forward in this spirit of reconciliation.”
Justice Favel’s words on reconciliation loom as we wait to see if Canada will appeal the decision. However, Indigenous leaders, including Cindy Blackstock, have urged Canada to “put down their sword” and end their legal battle.
In responding to this case, Canada has an opportunity to show its commitment to reconciliation. Whether it will take this opportunity remains to be seen.