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The Federal Court of Canada Upholds the CHRT’s Ruling in Full

on September 29, 2021

SUMMARY: 

    • On September 29, 2021, the Federal Court of Canada upheld the Canadian Human Rights Tribunal’s(CHRT) 2019 ruling ordering $40,000 in compensation for First Nations children and families.
    • The Federal Court also agreed with the CHRT that all First Nations children should be eligible for Jordan’s Principle, regardless of their Indian Act status or where they live.
    • Today’s decision acknowledges the harm caused by Canada’s discrimination and affirms that First Nations children and families deserve justice. This monumental decision comes one day before Orange Shirt Day, now also known as the National Day for Truth and Reconciliation.

Today, the Federal Court of Canada issued a decision to uphold the CHRT’s 2019 order for compensation for First Nations children and families harmed by Canada’s discriminatory practices in the First Nations Child and Family Services (FNCFS) Program and failure to uphold Jordan’s Principle. It also upheld the CHRT’s 2020 order for the application of Jordan’s Principle to all First Nations children who are recognized by their First Nation government as citizens, regardless of their Indian Act status or where they live.

In 2007, the Assembly of First Nations (AFN) and the First Nations Child and Family Caring Society launched a complaint at the CHRT alleging discrimination against First Nations children and families in Canada’s provision of FNCFS and Jordan’s Principle. In January 2016, the CHRT found that Canada was in fact discriminating against First Nations children and families in its provision and funding of the FNCFS Program and narrow application of Jordan’s Principle. The CHRT ordered Canada to immediately and completely overhaul the FNCFS Program and address the discriminatory funding that led to crisis levels of First Nations children in the child and family services system, and to fully implement Jordan’s Principle.

In September 2019, the CHRT ordered Canada to pay $40,000 in compensation to First Nations children, parents and/or grandparents (if the primary caregiver) affected by Canada’s discriminatory funding of the FNCFS Program and narrow application of Jordan’s Principle. This is the maximum allowable amount under section 53(2)(e) and 53(3) of the Canadian Human Rights Act (1985). The parties to the CHRT (the AFN, Caring Society and Canada, in consultation with Nishnawbe Aski Nation, Chiefs of Ontario and the Canadian Human Rights Commission) were ordered to work together to propose a framework for compensation. In February 2021, the CHRT approved the Framework for the Payment of Compensation under 2019 CHRT 39.

In July 2020, the CHRT issued a ruling clarifying who is eligible for consideration under Jordan’s Principle, including children who would become eligible for Indian Act status under the implementation of Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général). In November 2020, the CHRT confirmed this definition of eligibility, and Jordan’s Principle now applies to First Nations children who:

  • Are registered or eligible to be registered under the Indian Act;
  • Have one parent or guardian who is registered or eligible to be registered under the Indian Act;
  • Is recognized by their Nation for the purposes of Jordan’s Principle; or
  • Is ordinarily resident on reserve.

In October 2019, Canada filed for a Judicial Review of the CHRT’s compensation order. In December 2020, Canada filed for a Judicial Review of the CHRT’s Jordan’s Principle eligibility order. In June 2021, the Honourable Justice Paul Favel heard arguments from the parties to the CHRT regarding the compensation order and Jordan’s Principle eligibility.

Today’s decision acknowledges the harm caused by Canada’s discrimination and affirms that First Nations children and families deserve justice. This monumental decision comes one day before Orange Shirt Day, now also known as the National Day for Truth and Reconciliation.

More information will be available soon on the AFN website: www.afn.ca

Roy WhiteduckThe Federal Court of Canada Upholds the CHRT’s Ruling in Full