The Federal Court has spoken, rejecting the federal government’s bid to set aside two Canadian Human Rights Tribunal orders that government compensate First Nations children for underfunded services.
It’s a huge win for First Nations children across Canada, says Sarah Clarke of Clarke Child & Family Law, which has represented the First Nations Child & Family Caring Society in this case since 2014.
The court’s decision is another chapter in a nearly 15-year effort by the Caring Society and the Assembly of First Nations to hold the federal government accountable for underfunding services, such as child welfare services, for First Nations children for decades.
In 2008, the Canadian Human Rights Tribunal took on the case. Eight years later, the tribunal found the government was discriminating against kids and ordered it to stop underfunding them.
While federal funding has since increased, it is still below the funding levels of provincial child and family services. The tribunal has since issued 20 non-compliance orders to the federal government for its failures.
The request for a judicial review, filed two weeks before the 2019 federal election, asked the court to set aside a tribunal compensation order for $40,000 to every First Nations child who went into government care since 2006; $40,000 to every child denied coverage under Jordan’s Principle between 2007-2017; and $20,000 to their caregivers for each child impacted.
Adopted federally in 2007, Jordan’s Principle refers to the provincial and federal governments need to cover First Nations’ children’s medical costs first and determine who is responsible for the bill later. It was named after Jordan River Anderson, a child born with multiple disabilities whose treatment was delayed for three years while the two governments fought over who would pay for his care.
The federal government also asked the court to dismiss a 2020 tribunal decision expanding eligibility for Jordan’s Principle to children without status who are claimed by their nation or have parents with — or who are eligible for — status.
Today’s dismissal means the federal government must compensate the 165,000 First Nations children it discriminated against.
That includes First Nations children who have gone into government care since 2006. Indigenous children, which includes First Nation, Métis and Inuit kids, represent over 50 per cent of the children in government care nationally. They represent less than 10 per cent of kids overall.
The Federal Court’s decision comes on the eve of the inaugural National Day for Truth and Reconciliation, which honours Indigenous victims of the residential school system.
It also comes less than a month after Prime Minister Justin Trudeau denied taking First Nations children to Federal Court during the English federal election debate.
Despite the judicial review, consultations between the government, Assembly of First Nations and the First Nations Child & Family Caring Society on a new funding and oversight framework for First Nations child and family services and Jordan’s Principle have been ongoing.
The goal of the consultations is not only to stop the discrimination, but also ensure it “does not recur,” Clarke said. “That work needs to continue.”
Fully compensating those harmed by the discrimination and fully implementing Jordan’s Principle were two pledges in the Liberal party’s 2021 election platform.
The federal government has yet to announce whether it will appeal this decision.
If it doesn’t, and no other appeals or motions occur, the compensation framework developed between the government, Assembly of First Nations and the Caring Society will come into effect, Clarke says.
“Then the parties will come back together, get organized and start the process of paying victims their compensation,” she said.