Photo by Christina Gray taken September 30, 2021 in Victoria, BC. BC Legislature steps.
Introduction
On January 4, 2022, Agreements-in-Principle (“AIP”) were reached between the Assembly of First Nations, First Nations Child and Family Caring Society, the Chiefs of Ontario, the Nishnawbe Aski Nation, and counsel for the Moushoom and Trout class actions with the Canadian government. The AIP is a first step towards resolving years of litigation regarding the discriminatory underfunding of child welfare services on reserve in Canada.
The AIP commits $40 billion to remedy discrimination against First Nations children. It proposes that $20 billion be provided to First Nations children and families on-reserve and in the Yukon as compensation for the harm they suffered due to Canada’s discriminatory provision of child and family services and failure to properly apply Jordan’s Principle. It is expected that if the parties come to a binding agreement, Canada will release details on how the $20 billion in compensation could be distributed to First Nations children and families. Another $20 billion is committed in the AIP for long-term reforms of child and family services to rectify the discrimination that results from how Canada funds and provides these services.
Reform of child and family services provided by Canada was a central issue in the 2016 Canadian Human Rights Tribunal (Tribunal) decision that has pushed the government to the AIP. In that decision, the Tribunal held that First Nations children and families living on-reserve and in the Yukon are discriminated against in the funding and provision of child and family services by Aboriginal and Northern Affairs Development Canada.[i] In 2019, the Tribunal ordered Canada to pay from $20,000-$40,000 in compensation to every First Nation child, since 2006, who was unnecessarily removed from their home, and placed into foster care because of underfunded child and family services. Canada has continually refused to implement the Tribunal’s order and the Tribunal has issued repeated non-compliance orders against Canada. If the AIP leads to a binding agreement, it could settle this outstanding case as well as the Moushoom and Trout class actions.
What is an Agreement-in-Principle?
An Agreement-in-Principle (AIP) is a non-legally binding agreement that lays the framework for how the parties will work together. It is a commitment to work towards a legally binding agreement on certain terms.
Canada’s commitment to work towards an agreement also appears to be reflected in the budget for the upcoming fiscal year. The budget states they have earmarked $40 billion to address the harms caused to First Nation children and families, and to support long-term reforms of the child and welfare system.[ii]
If the AIP leads to a binding agreement, who would be compensated by the Canadian Government?
First Nations children and their parents and caregivers who resided on-reserve and in the Yukon and were unnecessarily removed from their homes between April 1, 1991 and March 31, 2022, may be compensated if a legally binding agreement is reached.
The AIP also proposes compensation for First Nations children and their parents and caregivers:
- Impacted by the Canada’s narrow definition of Jordan’s Principle between December 12, 2007 and November 2, 2017;[iii] and
- Who did not receive or received delayed essential public services or products between April 1, 1991 and December 11, 2007.[iv]
When will compensation be given and what will the process be?
We do not know yet, and will not know until a legally binding agreement is reached between the parties.
What will the child and family service reforms be?
The AIP is not yet publicly available. Canada has not provided details for how child and family services could be reformed. It is important to note that under the current government, Prime Minister Justin Trudeau in the Minister of Crown-Indigenous Relation Mandate Letter commits to reform child and family services and to compensate those harmed by Canada’s First Nations Child and Family Services program.[v]
In a news release on the AIP, Canada states that it intends to reduce the number of First Nations children in care, and keep children connected to their families, communities and cultures.[vi] The $20 billion in funding may also be used to support First Nations who are aging out of the child welfare system and develop prevention services to help children and families stay together.[vii] Canada states that it will implement funding to support First Nations persons aging out of care in addition to prevention services as early as April 1, 2022.[viii]
What has changed for First Nations children?
Nothing yet. Cindy Blackstock, the Executive Director of First Nations Child and Family Caring Society of Canada and member of the Gitxsan First Nation, cautions that child welfare discrimination is not over yet. In an interview, Blackstock called the AIP “simply words on paper” and that “it was too soon to exhale.”[ix] While there is a plan for moving ahead, Blackstock observed: “it’s too soon for the Canadian public to think this problem is solved. No child’s life has been changed today. There’s good words on paper, but nothing has changed for children.”[x]
Conclusion
After decades of inaction by the Canadian Government, Canada is finally taking steps towards compensating First Nations children and families for their discriminatory treatment. The First Nations Child and Caring Society first brought their case in 2007, roughly 15 years ago. After on-going litigation to seek justice for First Nations children, the AIP is a positive step towards working towards upholding the rights of First Nations children and we can expect the parties to release more details on the potential settlement throughout 2022. Communities, families and individuals should stay tuned to the news regarding this potential settlement as a binding agreement is negotiated to learn how they specifically may be impacted.
[i] First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT, at paras 458 and 473.
[ii] Government of Canada, Economic and Fiscal Update 2021, (2021) at 35.
[iii] Indigenous Services Canada, Agreements-in-Principle reached on compensation and long-term reform of First Nations child and family services and Jordan’s Principle (4 Jan 2022).
[iv] Ibid.
[v] Government of Canada Minister of Crown-Indigenous relations mandate letter, Prime Minister of Canada Justin Trudeau (Ottawa: 16 Dec 2021).
[vi] Indigenous Services Canada, Agreements-in-Principle reached on compensation and long-term reform of First Nations child and family services and Jordan’s Principle (4 Jan 2022).
[vii] First Nations Child and Family Caring Society, “First Nations Child & Family Caring Society Statement” (4 Jan 2022).
[viii] Indigenous Services Canada, Agreements-in-Principle reached on compensation and long-term reform of First Nations child and family services and Jordan’s Principle (4 Jan 2022).
[ix] Sarah Turnbull, “Largest settlement in Canadian history: Feds release details of $40B deal,” CTV News, (4 Jan 2022).
[x] Cindy Blackstock: ‘There’s good words on paper, but nothing has change for children,’ CBC News Toronto (4 Jan 2022)