Agreement Reached on Compensation for First Nations Child Welfare Discrimination

Nearly two years ago, we wrote about the ongoing fight of various First Nations communities to both take control of local child welfare matters as well as to secure compensation for children and families that had been harmed under Canada’s child welfare system. The claim originated in 2007 with a complaint filed jointly by the Assembly of First Nations and the First Nations Family Caring Society to Canada’s Human Rights Tribunal. After nearly ten years, the Tribunal issued a ruling in 2016 that found that the government of Canada had engaged in discrimination by consistently under-funding child welfare services for on-reserve communities:

Canada’s conduct was devoid of caution with little to no regard to the consequences…Canada was aware of the discrimination and of some of its serious consequences … Canada focused on financial considerations rather than on the best interests of First Nations children and respecting their human rights.

After that finding, the Tribunal issued an order in 2019 requiring the federal government to provide compensation to pay $40,000 to every on-reserve First Nation child who had been apprehended and removed from their homes for any reason. Further, the Tribunal ordered similar compensation for every child and family who had been forced to leave their home to receive services or who were denied services covered by Jordan’s Principle.

What is “Jordan’s Principle”?

Jordan’s Principle is a term for a commitment made by governing authorities across Canada that all First Nation children in the country will have equal and timely access to much-needed products, services, and supports. The services and supports cover a broad range of needs and social services, including health and education.

The principle was established in memory of Jordan River Anderson, a child from Norway House Cree Nation who suffered from multiple disabilities from the time he was born. He remained in the hospital for his entire life, and at the age of two, it was determined that he was able to transition to a home that was equipped to manage his various needs. However, there was ongoing disagreement between the federal and provincial governments over which entity would bear the costs associated with his home care.

The dispute went on for three years, and in the interim, Jordan remained at the hospital, where he eventually passed away at age five. A few years later, in 2007, the House of Commons passed Jordan’s Principle in his memory, which created a legal obligation to ensure all First Nations children would receive the services and treatments they required promptly and without discrimination. Any uncertainty regarding the obligation to pay or fund these services would not be a barrier to treatment and would instead be worked out after the fact.

Jordan’s Principle applies to children who meet the following criteria:

• They are registered or eligible to be registered under the Indian Act
• They have one parent or guardian who is registered or eligible to be registered under the Indian Act
• They are recognized by their nation for the purposes of Jordan’s Principle
• They are ordinarily resident on reserve

Parties Reach Agreement Hours Before Deadline

In 2019, the Canadian Human Rights Tribunal ordered the federal government to enter into discussions with the Assembly of First Nations and the First Nations Family Caring Society to determine specifics as to eligibility for compensation as well as the distribution process. Those negotiations have been ongoing and recently came to an end, just hours before the self-imposed deadline set for December 31, 2021.

At around 9:00 pm on New Year’s Eve, the parties reached an agreement-in-principle which was recently announced by Indigenous Services Canada. There are still specific details that have yet to be determined. However, the core agreements-in-principle are as follows:

1. $20 billion will be provided to Canadian children, both on-reserve and in the Yukon, who were removed from their homes between April 1, 1991, and March 31, 2022. Compensation will also be provided to families who were denied or delayed in their receipt of essential public services or items between April 1, 1991, and December 11, 2007, or qualify for coverage under Jordan’s Principle from December 12, 2007, through November 2, 2017.
2. Another $20 billion will be set aside over five years to ensure changes are made to Canada’s First Nation Child and Family Services Program so that the discrimination that has been identified will not continue. The funds will include programs aimed at:
   1. Providing necessary supports to First Nation children who have aged out of the child welfare system;
   2. Funding prevention services to “build on multi-generational cultural strengths” to keep children with their families and in their communities; and
   3. Funding more on-reserve housing to support prevention services.

Regarding the agreements-in-principle, the Honourable Patty Hajdu, Canada’s Minister of Indigenous Services, stated:

For too long, the Government of Canada did not adequately fund or support the wellness of First Nations families and children. First Nations leadership and advocates have long pushed the Federal Government to change these discriminatory practices. First Nations children thrive when they can stay with their families, in their communities, surrounded by their culture. No compensation amount can make up for the trauma people have experienced, but these Agreements-in-Principle acknowledge to survivors and their families the harm and pain caused by the discrimination in funding and services. The Agreements-in-Principle outline how equitable care will be funded and provided, and support First Nations-led solutions for family wellness. I thank the many partners and people that have worked to forge this fairer path that will result in a stronger and healthier country for everyone.

Contact Mincher Koeman for Advice Regarding Indigenous Family Law Matters

The family law lawyers at Mincher Koeman regularly work with Alberta’s First Nations communities on child protection and other family matters. We are passionate advocates of the rights of First Nation children to maintain cultural and community connections throughout the child welfare process. We understand how the system works, and we know how to effectively challenge and advocate at each stage. If your family has been affected by the child intervention process, or you are seeking guardianship of a child who is the subject of an intervention, please contact our office to discuss your options by calling us at 403-910-3000 or by contacting us online.