Parties to the Canadian Human Rights Tribunal (CHRT) proceedings and related class-actions have reached a historic Agreement-in-Principle. The Government of Canada is prepared to compensate individuals subjected to discrimination in its funding and delivery of the First Nations Child and Family Services (FNCFS) Program, as well as those who have suffered discrimination due to the federal government’s failure to properly implement Jordan’s Principle. A total of $20 billion in compensation has been allotted.

This Agreement-in-Principle is a framework establishing the general rules for compensation.

The Agreement-in-Principle is not a final settlement agreement. Compensation is not currently available.

There is currently no way to apply for compensation. The parties to the Agreement-in-Principle must reach a final agreement, which will be subject to the approval of the Federal Court of Canada and the CHRT.

The Assembly of First Nations (AFN) and other parties to the class actions are currently working toward a final agreement which includes details such as coming to terms on items such as distribution of the compensation funds, a notice plan for communicating with applicants, a distribution process, as well as the approval of the final agreement by the Federal Court of Canada and the CHRT.

Please see below for additional information on the background of the Agreement-in-Principle, including potential eligibility requirements. These eligibility requirements are not final and remain contingent on the terms of a final settlement agreement, if reached.

A second Agreement-in-Principle on long-term reform of the FNCFS Program and Jordan’s Principle was also reached, outlining the changes that the Government of Canada must undertake in order to ensure the discrimination against First Nations children and families does not happen again.

We recognize that survivors might need support during this process.

The Hope for Wellness Helpline offers immediate help to all Indigenous peoples across Canada.

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Call the toll-free Help Line at 1-855-242-3310 or connect to the online chat below:

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Compensation

Background on compensation

In February of 2007, the AFN and the First Nations Child and Family Caring Society of Canada (Caring Society) filed a complaint under the Canadian Human Rights Act against the federal government. The complaint stated that the Government of Canada was discriminating against First Nations children and families in its underfunding of the FNCFS Program on-reserve and in the Yukon, as well as its failure to fully and properly implement Jordan’s Principle.

In January 2016, the CHRT substantiated the complaint in a landmark decision, known as the Merits Decision, that ordered the federal government to end its discriminatory conduct, immediately reform the FNCFS Program, as well as properly implement Jordan’s Principle. In the years since this historic ruling, the CHRT has issued more than 13 non-compliance orders pressing the Government of Canada to adhere to the terms of the ruling and end its discriminatory conduct.

In September of 2019 and at the request of the Assembly of First Nations, the CHRT issued its Compensation Decision (2019 CHRT 39) which ordered the Government of Canada to provide First Nations children (on-reserve) removed from their homes by a child and family services agency or who suffered a delay or denial of a service under Jordan’s Principle, including their parent or grandparent (if the primary caregiver) with $40,000 in compensation for the discrimination they endured.

The Government of Canada sought a judicial review of the CHRT’s Compensation Decision. The Federal Court of Canada dismissed Canada’s appeal in June of 2021 and upheld the CHRT’s order. The federal government filed a further appeal of the Compensation Order with the Federal Court of Appeal. However, this appeal was put on hold to allow the Parties to negotiate a settlement agreement.

Two class action lawsuits were filed seeking compensation for First Nations children who were discriminated against under the First Nations Child and Family Services Program and narrow application of Jordan’s Principle. The AFN filed its class action to ensure all children who were removed from their homes at the inception of the FNCFS Program since 1991 would also be entitled to compensation.

The class-action launched by the AFN sought compensation for First Nations children and families who suffered comparable discrimination to that found by the CHRT in its 2016 Merits Decision but were not covered by the CHRT’s Compensation Decision. This class action covers all on-reserve First Nations children removed by a child and family services agency from 1991 to the present day. The class action also covers children who suffered a delay or denial in the receipt of services under Jordan’s Principle, as well as their caregiving parents/grandparents, back to 2007.

Current status

Following intensive negotiations, on December 31, 2021 an Agreement-in-Principle was reached on compensation between the Government of Canada, the AFN and the parties to the class actions. This includes $20 billion to be paid by the federal government to compensate eligible First Nations children who removed by a child and family services agency (operating under the FNCFS Program) between April 1, 1991 and March 31, 2022. First Nations children who suffered a delay or denial in the receipt of services under Jordan’s Principle between December 12, 2007 and November 2, 2017 may also be eligible for compensation.

The Agreement-in-Principle is solely a framework establishing the general principles for compensation due to the Government of Canada’s discriminatory funding in its delivery of child and family services through the First Nations Child and Family Services Program, and failure to properly implement Jordan’s Principle.

The Agreement-in-Principle is not a final settlement agreement. There is currently no way to apply for compensation. The compensation process, application forms and eligibility criteria will be set out in a future Final Settlement Agreement. More details will be provided when they become available The Final Settlement Agreement will require the approval of the Federal Court of Canada and the CHRT.

Eligibility

While the final details of eligibility are not yet in place, the Agreement-in-Principle tentatively would compensate those who were eligible under the terms of the CHRT’s Compensation Decision, as well as those who suffered comparable discrimination as outlined in the class-action proceedings between 1991- 2006.

More details will become available upon the conclusion of the Final Settlement Agreement.

It must be stressed that the terms of eligibility, amount of compensation and application process all remain subject to the terms of the final settlement agreement being reached.

The above information cannot be relied on at this time as definitive requirements for eligibility.

Next Steps

The AFN, the Government of Canada and other parties are currently negotiating the details of a Final Settlement Agreement that will include a full compensation package with details on eligibility for compensation and the application process. Once a final settlement is reached, parties will seek approval from the Federal Court of Canada and the CHRT before compensation can be released.

The AFN and other parties are aiming to have compensation distributed by the end of 2022 or early 2023. Please note the AFN will not have a role in the claims and payment process – it will be managed by an independent third party.

Long-Term Reform

Background on Long-Term reform

The CHRT found in 2016 that the Government of Canada discriminated against First Nations children and their families on-reserve and in the Yukon by underfunding the FNCFS Program. The program was funded in a way that created a perverse incentive for children to be removed from their homes. This led to adverse outcomes for First Nations children and their families and contributed to the overrepresentation of First Nations children in care. The CHRT ordered the Government of Canada to cease its discriminatory practices and immediately overhaul the FNCFS Program.

The CHRT also found the federal government’s narrow application of Jordan’s Principle created gaps, delays, and denials in accessing essential public services and products, leading to negative impacts for First Nations children and their families on-reserve and in the Yukon. The CHRT ordered the Government of Canada to cease applying a narrow definition of Jordan’s Principle and to immediately implement the full meaning and scope of Jordan’s Principle.

Current status

On December 31, 2021, the AFN, Canada and other parties to the CHRT and related class action processes also endorsed an Agreement-in-Principle on long-term reforms. The Government of Canada has committed $19.807 billion over five years to long-term reform of the FNCFS Program and to fully implement Jordan’s Principle.

Long-term reform will also ensure that First Nations have the funding that they need to support their children and families to thrive. It will address critical funding gaps that the existing FNCFS Program has entrenched, such as prevention services, remoteness, emergency funds, capital and infrastructure, and more. Addressing these gaps will enable First Nations to control the delivery of the programs and services for children and families.

The goal of long-term reform for Jordan’s Principle is to ensure that it is implemented in its full meaning and scope, in accordance with the CHRT’s orders, and that First Nations children do not face delays, denials or gaps in accessing services and supports. Long-term reform of Jordan’s Principle further seeks to identify and close the systemic gaps that adversely impact First Nations children. This includes addressing the long-standing and known gaps in services and supports for First Nations children, including for youth reaching the age of majority, and supporting First Nations to have a greater role in the coordination and delivery of supports for children.

Frequently Asked Questions

1.  How many people will be eligible for compensation?

The precise number is not yet known. However, as part of this process, independent third-party experts estimated that over 200,000 First Nations children, youth and caregivers were impacted by Canada’s discrimination in the First Nations Child and Family Services Program and Jordan’s Principle, and would therefore be eligible for compensation.

In addition to compensation, all First Nations children and families will benefit from a reformed family and child services system.

2.  How can people apply for compensation?

Details on eligibility and the application process are still being determined and will be shared once a final settlement agreement is reached.

3.  How much will each person receive?

The total amount of $20 billion for compensation and $19.807 billion for long term system reform comes under the two Agreements-in-Principle.

The next step is to negotiate the Final Settlement Agreement by Spring 2022. From there the eligibility and compensation amounts will be determined, which will then be approved by the courts. A lot of work needs to be conducted before the amounts for individual compensation are released, including reviewing data on children in care and Jordan’s Principle since 1991.

The AFN will be setting up a help desk to answer questions and provide guidance as the process unfolds.

4.  How soon will people begin to receive compensation? Will it be this year?

The AFN and other parties are working hard to get the compensation distributed by the end of 2022 or early 2023. First, the parties will need to negotiate the details of the Final Settlement Agreement. Following that will be a Notice of Certification of the settlement and the approval hearing.

5.  Where can people find out more information?

First Nations who want more information can email [email protected] or go to www.afn.ca.

First Nations Child and Family Services System Reform

6.  How will the $19.807 billion for system reform be allocated?

The Reformed Child and Family Services Funding Approach will provide funding for:

  • National baseline funding for child and family services, which is the actual cost of a child in care.
  • Top-up funding for prevention, information technology, results, emergency funds, poverty, remoteness and geography, capital asset replacement, capital maintenance and recapitalization. These funds will support First Nations to have what they need to deliver the programs and services for children and families that they wish to.
  • A National First Nations Secretariat to provide technical, operational and data support to First Nations and Agencies.
  • First Nations Representative Services to ensure that child and family services are culturally appropriate and meet the needs of First Nations.
  • Major Capital Infrastructure to ensure First Nations have the facilities needed to deliver services, in alignment with the Canadian Human Rights Tribunal’s order on capital (2021 CHRT 41).

7.  When will people start to see a different First Nations Child and Family Services Program?

There is commitment from the AFN and the Government of Canada to move ahead as quickly as possible. The AFN is seeking a system that is based on wellbeing outcomes and focused on prevention.

Some elements of the Agreement-in-Principle and the funding related to system reform may begin rolling out this year, such as supports to assist parents that will keep a child in the home, and extending the age-out of the program to 25 by April 2022. Other reforms will take more time to design and implement.

8.  The announcement is for $40 billion. Where’s the balance of the funds for reform going?

Indigenous Services Canada’s administration costs will be covered by the balance.

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 [email protected].

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