SUMMARY:
The AFN appeared before the Canadian Human Rights Tribunal (CHRT) on September 15 and 16, 2022, to seek the CHRT’s endorsement of the $20-billion Final Settlement Agreement to compensate First Nations children and families harmed by discriminatory underfunding of the First Nations Child and Family Services Program and for the federal government’s narrow application of Jordan’s Principle.
- The CHRT reserved its decision on the AFN’s motion for the approval of the Final Settlement Agreement. The AFN anticipates a favourable decision from the CHRT in the coming weeks.
- The Federal Court of Canada has postponed its Compensation Approval Hearing, which was previously scheduled for September 20 to 23, 2022, noting that it prefers a ruling from the CHRT before it commences its own approval inquiry.
- The AFN remains hopeful that the CHRT will provide a decision endorsing the Compensation Agreement expeditiously. The Federal Court of Canada is holding November 21 to 24, 2022 and December 5 to 9, 2022 as tentative dates for the Compensation Approval Hearing.
Final Settlement Agreement
On June 30, 2022, the AFN and Canada signed a $20-billion Final Settlement Agreement to compensate First Nations children and families harmed by discriminatory underfunding of the First Nations Child and Family Services (FNCFS) Program and for the federal government’s narrow application of Jordan’s Principle. A condition of the Final Settlement Agreement on Compensation requires both the Canadian Human Rights Tribunal (CHRT) and the Federal Court of Canada endorse the agreement.
The AFN appeared before the CHRT on September 15 and 16, 2022, to seek the CHRT’s endorsement of the Final Settlement Agreement. The CHRT reserved its decision on AFN’s motion for the approval of the agreement. As a result, the Federal Court of Canada has postponed its Compensation Approval Hearing, noting that it prefers a ruling from the CHRT before it commences its own approval inquiry.
The AFN anticipates a favourable decision from the CHRT in the coming weeks. Once the CHRT makes a ruling endorsing the Final Settlement Agreement, the AFN will be able to move on to the next steps in the approval process before the Federal Court. The Federal Court of Canada is holding November 21 to 24, 2022 and December 5 to 9, 2022 as tentative dates for the Compensation Approval Hearing.
The AFN continues to work towards meeting the timelines set out in the Final Settlement Agreement and is cognizant of the Survivors and families that are waiting for a final decision on compensation for the discrimination they experienced. At present, the AFN and Moushoom class counsel are developing a distribution protocol, which will outline specifics on who will be eligible for compensation and how they can apply. The AFN will be sharing information with the Regions to explain the distribution protocol before seeking Federal Court approval at a hearing scheduled on December 20, 2022.
Once the distribution protocol is approved, Claimants will finally be able to complete and submit applications and distribution of compensation awards will follow. The AFN remains hopeful that all the Final Settlement Agreement approvals will be completed in December 2022 and compensation payments will commence early in 2023.
Background
Since 1998, the AFN has engaged with Canada to address significant deficiencies and inequities inherent in the funding from the Government of Canada for the FNCFS Program, and the adverse impacts on the First Nations children and families involved with the FNCFS Program. The AFN has also been advocating for the full and proper application of Jordan’s Principle to ensure that all First Nations children have access to the supports and services they need, no matter where they live.
The AFN and First Nations Child and Family Caring Society of Canada (Caring Society) filed a human rights complaint with the CHRT in 2007. The complaint was substantiated by the CHRT in 2016 and Canada was ordered to reform the FNCFS Program and fully implement Jordan’s Principle to eliminate its discriminatory practices.
The AFN was the only Party to the CHRT litigation who requested that compensation be paid directly to survivors. The CHRT agreed with the AFN that compensation was required and ultimately awarded $40,000, the maximum amount for pain and suffering under the Canadian Human Rights Act (CHRA), to First Nations who faced discrimination in Canada’s underfunding of the FNCFS Program and the narrow application of Jordan’s Principle. The Government of Canada issued an appeal of the CHRT’s Compensation Order, which remains active.
On January 28, 2020, the AFN and the representative plaintiffs, including Ashley Dawn Louise Bach, Karen Osachoff, Melissa Walterson, Noah Buffalo-Jackson, Carolyn Buffalo, and Dick Eugene Jackson, filed a proposed class action, dating back to 1991 (“AFN Class Action”). The AFN Class Action sought compensation for First Nations children and family members harmed by Canada’s discrimination under the FNCFS Program and narrow application of Jordan’s Principle. The AFN, Moushoom class counsel and Canada have engaged in negotiations over the last two years.
While the CHRT’s compensation orders were profound, the maximum amount of compensation under the CHRA is limited to $40,000. The AFN sought to increase both the number of survivors eligible for compensation and the amount of compensation that they may receive, and achieved this by expanding on the CHRT’s compensation orders in a number of ways.
First, the CHRT imposed a cut-off point at which a child must have been in care to be eligible for compensation, which is January 1, 2006. The eligibility period under the Class Action begins on the date at which the discriminatory funding system was implemented by Canada: April 1, 1991. It also extends the date of eligibility for Jordan’s Principle claimants to the same date, in recognition of the longstanding and persistent gaps in services and supports for First Nations children. This extends the period for compensation by an additional 15 years.
The second extension relates to the whether a child was placed outside of their community. The CHRT compensation order required that a child had to be “placed outside their homes, families and communities” in order to be eligible for compensation. The Final Settlement Agreement includes all First Nations children who were removed under the FNCFS Program, regardless if they were placed within or outside of their community.
The third expansion is the inclusion of enhancement factors to ensure that individuals who experienced the greatest harm as a result of Canada’s discrimination are provided with additional compensation. Under the Final Settlement Agreement, Survivors will be entitled to a $40,000 base payment and additional monetary enhancements based on their individual circumstances, which include:
- the age when an individual was removed from their home
- the age at which they exited care
- the amount of time an individual spent in care
- the number of times they were placed in care
- if an individual was removed to receive an essential service
- if an individual was removed from a northern or remote community
- if an individual was subjected to a delay, denial or service gap that resulted in significant harm
Finally, the AFN advocated for additional supports for survivors that are not contemplated under the CHRT’s Compensation Order, including mental wellness supports for Survivors, financial literacy and coaching, family and community unification supports, and more. The Final Settlement Agreement is the first of its kind as it is First Nations driven, and First Nations will oversee the implementation of the agreement.
The AFN will continue to provide updates at fnchildcompensation.ca. The AFN has also established an Information Desk which can be reached at 1-888-718-6496 or [email protected].
We acknowledge that this process may bring up strong emotional responses; support from the Hope for Wellness Helpline is available now at 1-855-242-3310.