Finalizing the agreement on compensation for First Nations

After three decades of advocacy leading up to negotiations that concluded on June 20, 2022, the Assembly of First Nations (AFN) Executive Committee approved a final settlement agreement of $20 billion to compensate First Nations children and families who experienced discrimination under the First Nations Child and Family Services (FNCFS) program and Jordan’s Principle.

The final settlement agreement on compensation was reached between the AFN, Canada and Moushoom/Trout representative plaintiffs and their legal counsel on June 30, 2022.

Several legal steps must take place before compensation will be distributed:

  • The final settlement agreement is subject to approval by the Canadian Human Rights Tribunal (CHRT) and Federal Court of Canada.
  • The agreement has been filed with the CHRT, and updates will follow from the AFN.
  • A motion to approve the settlement is scheduled to be heard by the Federal Court of Canada in September 2022.
  • A distribution protocol will be developed to outline specifics on who will be eligible for compensation and how they can apply, which also must be approved by the Federal Court in December 2022.

Please note: Compensation is not available yet. More information will be available after approval by the CHRT and the Federal Court.

Support from the Hope for Wellness Helpline:
1-855-242-3310

The Helpline offers free, anonymous counselling and crisis intervention 24 hours a day, 7 days a week by telephone at 1-855-242-3310 for anyone affected by the compensation and long-term reform process

Children and youth can call Kids Help Phone anytime at 1-800-668-6868.

Background

In February 2007, the AFN and the First Nations Child and Family Caring Society filed a complaint under the Canadian Human Rights Act stating the Government of Canada was discriminating against First Nations children and families by underfunding the First Nations Child and Family Services Program on-reserve and in the Yukon, and by applying a narrow interpretation of Jordan’s Principle.

In January 2016, the Canadian Human Rights Tribunal (CHRT) agreed with the complainants in a landmark decision and ordered the federal government to end its discrimination, immediately reform the FNCFS Program, and fully implement Jordan’s Principle. In the years since this historic decision, the CHRT has issued more than 13 non-compliance orders because the Government of Canada has not been following the CHRT’s orders.

In September 2019, at the request of the AFN, the CHRT issued a Compensation Decision ordering the Government of Canada to pay eligible First Nations children and their parents and caregivers $40,000 in compensation. Included in the decision were First Nations children on-reserve and in the Yukon who were necessarily and unnecessarily removed from their homes from 2006 onwards, and First Nations children who were denied the essential services and other supports they needed, or received them after a delay, because the Government of Canada applied a narrow interpretation of Jordan’s Principle. The Government of Canada sought judicial review of this decision, but it was upheld. Canada has appealed this decision to the Federal Court of Appeal but has opted to negotiate a resolution.

Two class action lawsuits were also filed, including one by the AFN, and another by Moushoom/Trout seeking compensation for First Nations children and family members who were discriminated against through underfunding of the FNCFS Program and narrow application of Jordan’s Principle. These class actions concern compensation back to 1991, which means they cover more First Nations children and caregivers than the CHRT’s orders. In the fall of 2021, the Government of Canada agreed to enter into negotiations to settle the class action lawsuits.

The AFN, the Government of Canada and Moushoom/Trout signed an Agreement-in-Principle on December 31, 2021 that outlined $20 billion in compensation for First Nations children and families impacted by the discriminatory funding practices of the federal FNCFS program and its narrow implementation of Jordan’s Principle. At the same time, the parties signed an Agreement-in-Principle to reform the FNCFS program and for the full and proper implementation of Jordan’s Principle, outlining an additional $19.807 billion.

The June 30, 2022 final settlement agreement on compensation is the result of the dedicated efforts that took place over many years.

Frequently Asked Questions

Here are answers to questions you may have about the Agreements-in-Principle on compensation and long-term reform.

Compensation

 

What is the total amount of Compensation the Government of Canada will pay?

In the final settlement agreement negotiated between the AFN, Moushoom/Trout and the Government of Canada, a total of $20 billion has been agreed to for compensating individuals who have been discriminated against in the FNCFS Program and Jordan’s Principle.

Do I qualify for compensation, and if I do how much will I get?

The compensation amount is determined by the final settlement agreement, which is subject to approval by the CHRT and Federal Court of Canada. There are four broad groups of people who qualify for compensation:

Children taken into care:

First Nations individuals who, at any time during the period between April 1, 1991 and March 31, 2022, while they were under the Age of Majority, were removed from their home by child welfare authorities or voluntarily placed into care, and whose placement was funded by ISC, were Ordinarily Resident on a Reserve or were living in the Yukon, but excluding children who lived in a Non-paid Kin or Community Home through an arrangement made with their caregivers and excluding individuals living in the Northwest Territories at the time of removal.

Jordan’s Principle:

All First Nations individuals who, during the period between December 12, 2007 and November 2, 2017, did not receive from Canada (whether by reason of a Denial or a Service Gap) an Essential Service relating to a Confirmed Need, or whose receipt of said Essential Service relating to a Confirmed Need was delayed by Canada, on grounds, including but not limited to, lack of funding or lack of jurisdiction, or as a result of a Service Gap or jurisdictional dispute with another government or governmental department while they were under the Age of Majority.

Trout Class:

First Nations individuals who, during the period between April 1, 1991 and December 11, 2007, while they were under the Age of Majority, did not receive from Canada (whether by reason of a Denial or a Service Gap) an Essential Service relating to a Confirmed Need, or whose receipt of said Essential Service was delayed by Canada, on grounds, including but not limited to, lack of funding or lack of jurisdiction, or as a result of a Service Gap or jurisdictional dispute with another government or governmental department.

Family Class:

Individuals who are the primary caregiver of:

a) a member of the Removed Child Class at the time of removal;
b) a member of the Jordan’s Principle Class at the time of delay, denial or service gap; and/or
c) a member of the Trout Class at the time of delay, denial or service gap.

When will I get compensation?

Compensation is not currently available. A motion to approve the settlement is currently scheduled to be heard for at the Federal Court of Canada in September of 2022. After this, the Federal Court will need to approve a distribution protocol in December 2022, which will outline specifics on who will be eligible for compensation and how they can apply, among other details.

How can I apply to get compensation?

There is no application process at this time. Details on the compensation process and application form will be shared following Federal Court approval of the final settlement agreement and the distribution protocol.

When will a person who qualifies but is under the age of majority, receive compensation?

A person will only receive compensation after they reach the age of majority. The amount and method of determining individual compensation and the process to qualify will be finalized once approved by the Federal Court of Canada.

How will Survivors be supported if the compensation process is difficult for them?

The Government of Canada has agreed to pay for mental wellness supports, such as counselling, for Survivors as they go through the compensation process. This will be funded separately from the $20 billion for compensation.

The AFN has also worked to secure other types of support in the final settlement agreement, including:

  • culturally appropriate health and wellness services
  • counselling on financial literacy, including saving and investing; and
  • helping youth who are aging out of the FNCFS Program reconnect with their First Nation.

Will the Assembly of First Nations be distributing compensation?

The AFN will not be distributing compensation. Distribution will be managed by an independent Administrator, as approved by the Federal Court of Canada.

Long-Term Reform of the First Nations Child and Family Services Program and Jordan’s Principle

 

How is the Assembly of First Nations consulting with First Nations about long-term reform?

The AFN’s negotiations with the Government of Canada are guided and informed by engagement with First Nations. The AFN has been meeting with leadership and First Nations to hear their views on reform to ensure that the reforms are relevant and responsive to the needs of First Nations children, families and communities across the country.

The AFN has shared the agreement-in-principle (AIP) regarding long term reform with Chiefs and First Nations.

How long will reform take?

Funding for long-term reform of the FNCFS program and Jordan’s Principle will be spread over five years. The AFN, the Government of Canada and other parties have committed to move ahead as quickly as possible. The Agreement-in-Principle on long-term reform outlines some immediate program reforms which began rolling out this year, such as additional prevention funding and extending supports for First Nations youth transitioning out of care up to age 26. Other reforms will take more time to design and implement.

How much money is there for reform?

The long-term reform Agreement-in-Principle with the Government of Canada includes $19.807 billion in funding for long-term reform of the FNCFS Program and Jordan’s Principle. This is separate from the $20 billion for compensation.

What will long-term reform of the FNCFS Program include?

Long-term reform of the FNCFS Program will include:

  • A baseline funding amount that will cover the actual costs of a child in care. This amount will be increased over time to match population growth and inflation.
  • Funding to address the drivers of child and family involvement with FNCFS such as poverty, housing or food insecurities.
  • Funding for cultural and community-based programs and services that help First Nations children and families thrive such as prevention, First Nations and Band Representative Services
  • Funding to address the higher costs of providing services to First Nations in remote areas
  • Funding to ensure that First Nations and FNCFS agencies have the means to purchase, maintain, renovate and repair the buildings, vehicles, and other property they use to provide services to First Nations.
  • Funding for FNCFS providers to buy, upgrade and maintain computers, hardware and software and other equipment.
  • Funding to support the implementation of a new performance measuring framework called Measuring to Thrive, which is a data system designed to measure, track and report on the impact of the FNCFS program on child and family wellbeing. This information will then be used to inform FNCFS budgets based on First Nations needs and priorities.
  • Emergency funds for when an unexpected crisis that puts additional demands on FNCFS.
  • Funding for a First Nations-led, non-profit secretariat to support First Nations and FNCFS agencies with technical and operations support, as well as serving as a national-level data collector.

Full application of Jordan’s Principle

 

What is Jordan’s Principle?

Jordan’s Principle is a child-first legal Principle that ensures First Nations children have access to the services and supports they need, no matter where they live, without delay or denial. Learn more about Jordan’s Principle here.

How will reform affect Jordan’s Principle?

The reforms will ensure full and proper implementation of Jordan’s Principle to support First Nations children.

This includes:

  • Ensuring it follows the Canadian Human Rights Tribunal’s orders, including eligibility, what is covered, and when. These changes will prevent delays, refusals and children falling through the cracks.
  • Funding to identify and close systemic gaps in essential services that adversely impact First Nations children.
  • Fixing administrative problems with Jordan’s Principle, such as asking for too much paperwork, or differences in the way it is applied across the country.
  • Funding to support First Nations youth reaching age of majority connect with services and support they need in adulthood.
  • Keeping the government accountable to First Nations about Jordan’s Principle by listening to complaints and quickly taking responsive action.
  • Exploring ways to support greater First Nations control over Jordan’s Principle service coordination, delivery and determinations.

Further Information

Individuals seeking additional information can call the Compensation Process and Support phone line at 1-888-718-6496. Additionally, you can email us at fnchildcompensation@afn.ca.

Please join our mailing list to receive updates.