Question Period Note: FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA, ASSEMBLY OF FIRST NATIONS ET AL. V. ATTORNEY GENERAL OF CANADA & MOUSHOOM V. ATTORNEY GENERAL OF CANADA

Ongoing litigation with respect to First Nations child and family services and Jordan’s Principle – compensation and reform of federal program to address discrimination.

• Negotiation rather than litigation remains the Government’s preferred route to advance meaningful change for past, current and future generations of Indigenous children.

• The Government of Canada is committed to seeking a comprehensive, fair and equitable settlement on compensation that will ensure long-term benefits for individuals and communities who have been negatively impacted by child and family policies and enable community healing.

• The Government of Canada will work with the parties with the goal of moving forward with certification of the Moushoom v. Canada proposed class action. This case seeks compensation for First Nations children who suffered as a result of underfunding of child and family services. Exploratory discussions are ongoing.

• The Compensation Ruling of the Canadian Human Rights Tribunal (CHRT) does not properly address all issues around appropriate compensation for children and families resulting from the discrimination. For instance, it only includes individuals impacted from 2006 onwards, while the proposed Moushoom class action goes back to 1991. As such, Canada is pursuing a judicial review of this CHRT ruling. This matter is currently before the Federal Court.

• The Court’s November 29th ruling dismissed both the government’s request for a stay of the Compensation Order, and the First Nations Child and Family Caring Society’s request for abeyance of the judicial review application.

• Since the CHRT issued its decision in 2016, Canada has taken significant steps to address the Tribunal’s findings. Budget 2018 committed an additional $1.4 billion over 6 years and ongoing to address funding pressures facing First Nation Child and Family Services agencies, while increasing prevention resources for communities. Jordan’s Principle funding has also increased, with $679 million budgeted from 2016-2019 and $1.2 billion committed from 2019-2022.

On January 26, 2016, the Canadian Human Rights Tribunal (Tribunal) determined the complaint in First Nations Child and Family Caring Society of Canada, Assembly of First Nations et al. v Attorney General of Canada had been made out. Specifically, the Tribunal found that Canada discriminates against First Nations children on-reserve and in the Yukon by underfunding child and family welfare services under its First Nations Child and Family Services (FNCFS) program. The Tribunal also found the federal government’s application of Jordan’s Principle – which is a child-first principle aimed at resolving jurisdictional disputes involving the care of First Nation children – is too narrow, resulting in service gaps to First Nations children and families. The Tribunal ordered Canada to: (1) cease its discriminatory practices; (2) reform the FNCFS program and the 1965 Agreement in Ontario to reflect the findings in their decision; (3) cease applying a narrow definition of Jordan’s Principle; and (4) immediately implement the full meaning and scope of Jordan’s Principle.

Subsequent remedial orders were made and the Tribunal maintains jurisdiction over the complaint in order to ensure compliance by Canada. On September 6, 2019, the CHRT issued a ruling on compensation, awarding maximum amounts authorized under the Canadian Human Rights Act to First Nations children and their parents and grandparents resulting from the discrimination and ordered Canada to engage in discussions with the parties on a compensation process. Canada is to report to the CHRT on January 29, 2020, on the outcome of those discussions. On October 4, 2019, Canada filed a Notice of Application for Judicial Review and a Motion to Stay the compensation ruling before the Federal Court. The Caring Society in turn filed a motion seeking a stay of Canada’s application for judicial review. Both motions were denied by the Federal Court on November 29, 2019 following a hearing on the motions on November 25 and 26.

There are a number of outstanding issues to be decided by the Tribunal in relation with this complaint, important dates in that regard include:

• Definition of “First Nations Child’’ for the purposes of Jordan’s Principle;
• Major Capital;
• Small agencies; Indigenous Services Canada’s ability to establish deadlines for Band Representative Services Actual Costs.

The precise timing of these decisions is not known.The Tribunal wrote to the parties on August 29, 2019 indicating that a series of rulings was to be released. Since then, only the September 6 decision on compensation has been released.

Bill C-92, An Act Respecting First Nations, Inuit and Métis children, youth and families will come into force on January 1, 2020. This legislative initiative was co-developed with Indigenous partners. The Act seeks to: 1) affirm the rights and jurisdiction of First Nations, Inuit and Métis in relation to child and family services; and 2) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children, such as best interests of the child, cultural continuity and substantive equality to guide the interpretation and administration of the new Act.

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