SUMMARY:

• On October 25, 2022, the Canadian Human Rights Tribunal (CHRT) released a letter decision, a summary of its reasons for its decision, confirming that it would not endorse the Final Settlement Agreement (FSA) on Compensation.
• The CHRT found that the FSA substantially, but not completely, satisfies its orders related to compensation of certain groups of individuals.
• In the coming days, AFN legal counsel will be discussing with counsel for the Government of Canada its position on the CHRT’s decision, including the potential for satisfying the CHRT’s concerns or other potential legal recourses.
• The AFN legal team will be conducting a thorough analysis of the CHRT’s decision and will return to the Executive Committee in due course with recommendations, following its engagement with Canada.
• The AFN is committed and will continue fighting to ensure First Nations children and families who experienced the profound discrimination that the Tribunal found receive compensation.

Final Settlement Agreement

On October 25, 2022, the Canadian Human Rights Tribunal (CHRT) released its letter decision with respect to the Final Settlement Agreement (FSA) 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. The letter decision stated that the CHRT would not endorse the FSA. The CHRT advised that while the FSA “substantially” satisfies its compensation orders, it does not find that the FSA “fully” satisfies its compensation orders.

On June 30, 2022, the AFN and Canada signed a $20-billion FSA to compensate First Nations individuals who experienced Canada’s profound discrimination under the FNCFS Program and Jordan’s Principle. A condition of the FSA required that both the CHRT and the Federal Court of Canada endorse the agreement.

The CHRT will release its full decision at a later date; however, in the letter decision, being a summary of its reasons, the CHRT noted that it:

• Had made orders related to who was entitled to compensation, and it was not prepared to revisit these orders;
• Is not legally allowed to amend its orders that would remove the right to compensation from victims whose rights that were already granted by the CHRT, including children whose placement into care were not funded by Canada, or pay less to individuals who are entitled to compensation under its existing orders;
• Was concerned that the AFN did not produce a Resolution of the First Nations-in-Assembly supporting the FSA, despite efforts made in the AFN’s submissions to clarify the Executive Committee’s delegated authority and role as the AFN’s First Nations leadership; and
• Would likely have approved the FSA had it been negotiated prior to the CHRT’s compensation orders.

The CHRT suggested that either the Government of Canada pay $20 billion into a trust to generate interest to compensate individuals who were within the CHRT’s compensation orders but are not within the scope of the class action FSA, or severing CHRT approval from the class action and, in effect, create two streams of compensation. In either event, the CHRT would retain jurisdiction to see its compensation orders fulfilled.

In either case, the Government of Canada would need to agree to pay significantly more in compensation.

Background

Legal counsel for the AFN, Moushoom Class Action (Moushoom) and Canada have been negotiating the settlement of the class action and CHRT compensation orders since December 2020. In December of 2021, the parties reached an Agreement-in-Principle on compensation, which was accepted by the AFN Executive.

On June 30, 2022, the parties executed the FSA on compensation which settled the issues of individual compensation for the Removed Child Class and their families, as well as the Jordan’s Principle/Trout Classes and their families. The total compensation package is valued at $20 billion.

The FSA significantly extended compensation to individuals who had been harmed by Canada dating back to 1991. The CHRT’s orders only covered individuals who had been harmed from 2006 onwards in the case of removed children, or from 2007 to 2017 in the case of children affected by gaps, delays or denials related to Jordan’s Principle. It also provided greater compensation to the Removed Child Class and to individuals who experienced significant harms due to denials, delays or gaps under Jordan’s Principle. Some principled compromises were made with respect to Estates of deceased parents/grandparents, Jordan’s Principle and in the case of multiple children having been removed in order to prioritize compensation to Survivors who experienced Canada’s discrimination as children and support a trauma-informed compensation process.

The AFN, with Canada’s support, asked the CHRT to find that the FSA satisfies its compensation orders, which would permit the parties to move on to Federal Court for approval and the expedited payment of compensation to victims of Canada’s discrimination.

The parties asked the CHRT for a decision on an “as soon as possible” basis, in order to start receiving claims in early 2023, following the expected Federal Court approval of the settlement.

Next Steps

AFN legal counsel must now consider whether there is a path towards amending or adapting the FSA in a manner that is satisfactory of the CHRT’s orders or seek an alternative legal recourse.

In order to do this, AFN legal counsel will work with Government of Canada’s legal counsel in the coming days. AFN legal counsel will return to the AFN Executive to provide further updates and obtain directions on the recommended course of action after it has had an opportunity to conduct a thorough legal analysis of the CHRT’s decision and engage with Canada.

The AFN will keep fighting to ensure First Nations children and families receive compensation and is cognizant of impacts of the delays on the First Nations victims of Canada’s discrimination who now must wait longer for compensation for the discrimination they experienced.

The AFN will continue to provide updates at fnchildcompensation.ca as they become available. The AFN has also established an Information Desk which can be reached at 1-888-718-6496 or fnchildcompensation@afn.ca.

The AFN will continue to provide updates. 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.