Agreements-in-Principle, Reached to Finally End Discrimination Against First Nations Children


Agreements-in-Principle, Reached to Finally End Discrimination Against First Nations Children

On January 4, 2022, following a 14-year legal battle to end Canada’s discrimination against First Nation’s children on reserve and in the Yukon, the Canadian government has reached Agreements-in-Principle with First Nations groups to compensate generations of victims harmed by discriminatory underfunding policies and to achieve long-term reform to First Nations Child and Family Services programs and to properly implement the Jordan’s Principle.1 The initial human rights complaint was filed in 2007 by the First Nations Child and Family Caring Society (“Caring Society”) and the Assembly of First Nations (“AFN”) alleging that Canada discriminates against First Nations children by underfunding child welfare services on reserve.2 In the landmark decision on January 26, 2016, the Canadian Human Rights Tribunal (“CHRT”) agreed that First Nations children and their families suffered irreparably by receiving less funding to keep children safe in their families and by Canada’s failure to implement Jordan’s Principle that would have provided services when they were needed.3

Since then, the CHRT has issued several orders against Canada to seize its discriminatory conduct, including non-compliance orders, but the discrimination continues to the present day spurring further class-action lawsuits against the Canadian government. Canada has spent more than 8.3 million in legal costs unsuccessfully fighting the complaint and CHRT orders. The most recent appeal was filed on November 29, 2021 against the unprecedented compensation order requiring Canada to pay the maximum award of $40,000 to children and their families harmed by the discrimination and to adequately fund child and family services on reserve, including through the creation of infrastructure to support operations on reserve.

However, immediately after the appeal was filed, Canada earmarked $40 billion to settle the dispute and the litigation was paused for the government to negotiate an agreement with the Caring Society, AFN, Chiefs of Ontario, the Nishnawbe Aski Nation, and counsel for the Moushoom and Trout class actions to settle the CHRT orders and related class action lawsuits. On January 4th, the parties reached Agreements-in-Principle (“AIP”) that will form the basis for negotiations over this next year to determine how the compensation will be paid to victims and how the child welfare system will be reformed.

The AIP includes $20 billion in compensation for First Nations children on reserve and in the Yukon who were removed from their homes between April 1, 1991 and March 21, 2022, and for their parents and caregivers. Compensation will also be paid to victims who were adversely impacted by Canada’s narrow definition of Jordan’s Principle between December 12, 2007 and November 2, 2017 and for children who did not receive or experienced delays in receiving an essential service or product between April 1, 1991 and December 11, 2007. The AIP further includes $20 billion, over the next five years, for long-term reform to the First Nations Child and Family Services program, which includes funding to support First Nations adults aging out of the child welfare system and prevention services to help keep children and families together, including funding for on-reserve housing.

In reaching the AIP, Canada acknowledged the efforts of the First Nations peoples who have advocated so fiercely for their children to end discrimination, including Residential School Survivors, Sixties Scoop Survivors, and the multi-generational victims of the harmful policies. Canada further acknowledged that no amount of money can reverse the suffering experienced by the victims through the disconnection of children from their culture, families and communities. In doing so, Canada has finally agreed to work toward ending this discrimination and move forward down a path of reconciliation.

3 2016 CHRT 2