The Federal Court of Canada approved the First Nations Child and Family Services, Jordan's Principle, Trout and Kith Class Settlement Agreement on Tuesday, a First Nations-led agreement including a total of C$23.34 (AUD26.3) billion to compensate First Nations children and families who were harmed by discriminatory underfunding of the First Nations Child and Family Services (FNCFS) program and those impacted by the federal government's narrow definition of Jordan's Principle.
The agreement was reached between the Assembly of First Nations (AFN), the Moushoom and Trout class actions plaintiffs and Canada, with the support of the First Nations Child and Family Caring Society.
The Canadian government described the decision as "a very important milestone" in the process towards compensating First Nations children and families for the harms they suffered, and noted that agreement could not have been reached "without the hard work of the Parties and First Nations leadership, who never wavered in their dedication and determination that First Nations children and families receive compensation".
Assembly of First Nations Interim National Chief Joanna Bernard, a member of the Madawaska First Nation, said the decision is "a welcome step forward" compensating affected First Nations and families for the discrimination they experienced.
"I thank the representative plaintiffs for their strength throughout these proceedings, as they are long overdue for an acknowledgement of the harms experienced," she said.
"There is still much work to do in order to ensure these discriminatory practices never happen again, and I thank all those involved for their continued efforts on behalf of our communities."
Canada's Minister of Indigenous Services Patty Hajdu described the moment as "a historic day" for "so many First Nations families who have waited so long for this".
"Although nothing can make up for the harm and pain decades of underfunding caused, compensation is essential to moving forward," she said.
"I sincerely thank the Assembly of First Nations, Moushoom and Trout class action plaintiffs and the First Nations Child and Family Caring Society – amongst others – for their work. Their leadership has pushed Canada to do the right thing and is moving us forward on the path to reconciliation. We will continue working with them on a historic reform of our programs so that this never happens again."
If the approval of the agreement is not appealed within the 60-day appeal period following the issuance of the Federal Court's order on the settlement on 24 October, the process to implement the settlement through the court ordered third-party administrator could begin in 2024.
In January 2016, in response to a 2007 complaint by the Assembly of First Nations and the First Nations Child and Family Caring Society, the Canadian Human Rights Tribunal found the FNCFS Program to be flawed, inequitable and discriminatory under the Canadian Human Rights Act. The tribunal ordered the department to cease its discriminatory practices and to reform the program and the 1965 Agreement in Ontario to reflect the findings in their decision.
Since 2016, the Tribunal has ruled that the design of the FCFS program was based on flawed racial assumptions that resulted in inadequate fixed funding for operations and prevention costs. The court further ruled that inadequate funding had hindered the ability of FNCFS Agencies to provide provincially/territorially mandated child welfare services, let alone culturally appropriate services to First Nations children and families.
The settlement approved in court on 24 October resolved two class actions that were initiated in March 2019 and January 2020. Both class actions brought claims against the Canadian government for its underfunding and narrow coverage of the FNCFS program. All parties agreed to work towards reaching a global resolution by December 2021. Agreements-in-principle were reached on compensations in January 2022 and subsequently approved by the Canadian Human Rights Tribunal in July 2023 after revision.
Canadian Minister of Crown-Indigenous Relations Gary Anandasangaree said the approval of the compensation settlement agreement in court was made possible by "the tireless advocacy of First Nations leaders".
"It brings us a step closer, as we work in partnership, towards meaningful and lasting reconciliation in this country. No child or family should ever have to face the harms suffered by so many First Nations children and families," he said.
"Together, we will work to provide supports for healing as we work to reform the First Nations Child and Family Services program. This is a significant step forward. More to do."
