Case Brief: Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada, 2021 FC 969
By Courtney Jacklin and Kajia Eidse-Rempel
What this case is about
This case is about the compensation owed to Indigenous children as a result of system discrimination in Canada’s healthcare system. In December 2020, the Attorney General of Canada (“Canada”), representing the Minister of Indigenous Services Canada, applied for judicial review of various decisions of the Canadian Human Rights Tribunal (the “Tribunal”) in the ongoing dispute over how much Canada should compensate the victims. Canada asked the court to set aside the Tribunal’s decisions and remit them to a different panel for reconsideration.
The underlying matters in this case date back to the First Nations Child and Family Caring Society and Assembly of First Nations’ 2007 complaint to the Canadian Human Rights Commission alleging that Canada was violating the Canadian Human Rights Act by underfunding the delivery of child and family services on reserve. In 2016, the Tribunal held that Canada discriminates against First Nations children on reserve by underfunding their health services as compared to other children living off reserve.[1] The Tribunal retained jurisdiction over the matter to ensure that the discrimination was remedied.
This case relates to a series of decisions issued after the Tribunal’s 2016 decision that clarified outstanding questions with respect to compensation and eligibility. Notably, in 2019, the Tribunal ordered Canada to compensate each First Nations child and each caregiving parent or grandparent who was impacted by Canada’s discrimination in the amount of $40,000, the maximum individual remedy permitted under the Canadian Human Rights Act. The Tribunal also clarified that non-status First Nations children living on or off reserve can be eligible for Jordan’s Principle. Canada challenged both decisions.
What the Court found
The Federal Court dismissed Canada’s applications, concluding that the Tribunal’s decisions on compensation and eligibility were reasonable and that Canada was not denied procedural fairness. The Tribunal acted with its broad remedial discretion under the Canadian Human Rights Act. The Tribunal’s dialogic approach allowed the parties to address key issues on how to address discrimination and contributes to the goal of reconciliation between Indigenous peoples and the Crown (paras. 136, 138).
The court dismissed Canada’s argument that it was outside the Tribunal’s jurisdiction to order compensation be paid to Indigenous children irrespective of their Indian status. The court held the Tribunal’s finding that defining “First Nations child” predicated on the Indian Act would perpetuate discrimination was within the general and remedial jurisdiction of the Tribunal (para. 241). Additionally, this finding was consistent with the evidence that First Nations children, regardless of status or residency on reserves, suffer as a result of Canada’s discriminatory funding regime (para. 247).
Although it made no specific pronouncements in response, the court “duly noted” the submission that “the Indian Act is a form of apartheid law that gives the government unilateral authority to determine who is legally an Indian” (para. 254). There is a distinction between Indian status and First Nations citizenship, and it was open to the Tribunal to take a purposive approach that extended eligibility of Jordan’s Principle to children recognized by their First Nations as citizens (para. 253).
The court held that Canada’s acceptance of the Tribunal’s finding of widespread discrimination was inconsistent with its challenge of the compensatory consequences of that systemic harm (para. 156). Further, the court held that the Tribunal’s decision to extend Jordan’s Principle eligibility to First Nations children without status prevents future discrimination (para. 250) and allows First Nations to retain control over identity, membership, and citizenship (para. 274).
Why this case is important
This case is important because it upheld the Tribunal’s decision awarding compensation to First Nations children, parents and grandparents who were impacted by Canada’s discrimination and affirmed that eligibility under Jordan’s Principle is not limited to First Nations children with status. On the eve of Canada’s first National Day for Truth and Reconciliation, Canada found itself being reminded by a court of law that trying to short-change Indigenous children on health care services by appealing to definitions of “Indian status” would perpetuate, not remedy, injustice.
It has now been 14 years since the human rights complaint was filed and over five years since the Tribunal made its finding of discrimination. It is time for Canada to accept the Tribunal’s decisions and compensate those who have been affected by Canada’s systemic discrimination.
The First Nations Child & Family Caring Society has prepared a summary of this case in bilingual child-friendly language. Children will still need some help from an adult to understand this summary. See the child-friendly version here.
[1] First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2016 CHRT 2