First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)

First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)
Collection
Canadian Human Rights Tribunal
Date
2022-12-20
Neutral citation
2022 CHRT 41
File number(s)
T1340/7008
Decision-maker(s)
Marchildon, Sophie; Lustig, Edward P.
Decision type
Ruling
Grounds
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2022 CHRT
41
Date:
December 20, 2022
File No.:
T1340/7008
Between:
First Nations Child and Family Caring Society of Canada
- and -
Assembly of First Nations
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Attorney General of Canada
(Representing the Minister of Indigenous and Northern Affairs Canada)
Respondent
- and -
Chiefs of Ontario
- and -
Amnesty International
- and -
Nishnawbe Aski Nation
Interested parties
Ruling
Members:
Sophie Marchildon
Edward P. Lustig
Table of Contents
I. Introduction 1
II. Context 1
III. Summary of the Parties’ Positions 5
A. AFN and Canada 5
(i) Initial Submissions 5
(ii) Reply Submissions 19
B. Canada 22
C. Amnesty International 24
D. Chiefs of Ontario 24
E. Nishnawbe Aski Nation 24
F. Caring Society 25
(i) Facts 25
(ii) Arguments 29
G. Commission 32
H. Post-Hearing Submissions 33
IV. Functus officio and Finality 33
A. Law on functus officio and finality 33
B. The Tribunal’s retained jurisdiction on the compensation issue and the issues of functus officio and finality of its orders 45
(i) Human Rights Regime 79
V. The FSA and the Specific derogations from the Tribunal’s Compensation Orders 90
A. Entitlement for children removed and placed in non-ISC funded placements 91
(i) Removed children and the parties’ differing interpretations post Federal Court ruling 94
(ii) Non-ISC Removed children 95
B. Estates of caregiving parents and grandparents 116
C. Certain caregiving parents and grandparents will receive less compensation 120
D. Some Jordan’s Principle victims/survivors may receive less compensation 122
E. Conclusion on Derogations 126
VI. Opting-out provision 127
VII. Informing the public about the FSA 129
VIII. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Free, Prior and Informed Consent (FPIC), Self-government, AFN resolutions 136
A. Individual rights versus collective rights 147
IX. The request to amend the Tribunal’s compensation orders to reflect the terms of the FSA is denied 149
A. The Compromise factor in reaching the FSA and human rights lens 151
B. New information namely the FSA since the Tribunal rendered its orders 153
C. The remedy is forthcoming to the victims 153
D. The broader scope and enhanced compensation for some victims/survivors 154
X. Conclusion 160
XI. Order 163
A. The Tribunal grants the motion in part and Declares/Finds 163
XII. Retention of jurisdiction 164
I. Introduction [1] The Panel congratulates the AFN and Canada for making important steps forward towards reconciliation and for their collaborative work on the Final Settlement Agreement on compensation for the class members in the class action (FSA). The FSA is outstanding in many ways, it promises prompt payment, it is a First Nations controlled distribution of funds, and it allows compensation in excess of what is permitted under the CHRA for many victims/survivors. The FSA aims to compensate a larger number of victims/survivors going back to 1991. The Panel wants to make clear that it recognizes First Nations inherent rights of self-government and the importance of First Nations making decisions that concern them. This should always be encouraged. The Panel believes this was the approach intended in the FSA which was First Nations-led.
II. Context [2] In 2016, the Tribunal released First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 [Merit Decision] and found that this case is about children and how the past and current child welfare practices in First Nations communities on reserves, across Canada, have impacted and continue to impact First Nations children, their families and their communities. The Tribunal found that Canada racially discriminated against First Nations children on reserve and in the Yukon in a systemic way not only by underfunding the First Nations Child and Family Services Program (FNCFS) but also in the manner that it designed, managed and controlled it. One of the worst harms found by the Tribunal was that the FNCFS Program failed to provide adequate prevention services and sufficient funding. This created incentives to remove First Nations children from their homes, families and communities as a first resort rather than as a last resort. Another major harm to First Nations children was that zero cases were approved under Jordan’s Principle given the narrow interpretation and restrictive eligibility criteria developed by Canada. The Tribunal found that beyond providing adequate funding, there is a need to refocus the policy of the program to respect human rights principles and sound social work practice in the best interest of children. The Tribunal established Canada’s liability for systemic and racial discrimination and ordered Canada to cease the discriminatory practice, take measures to redress and prevent it from reoccurring, and reform the FNCFS Program and the 1965 Agreement in Ontario to reflect the findings in the Merit Decision. The Tribunal determined it would proceed in phases for immediate, mid-term and long-term relief and program reform and financial compensation so as to allow immediate change followed by adjustments and finally, sustainable long-term relief. This process would allow the long-term relief to be informed by data collection, new studies and best practices as identified by First Nations experts, First Nations communities and First Nations Agencies considering their communities’ specific needs, the National Advisory Committee on child and family services reform and the parties.
[3] The Tribunal also ordered Canada to cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan's Principle. Jordan’s Principle orders and the substantive equality goal were further detailed in subsequent rulings. In 2020 CHRT 20 the Tribunal stated that:
Jordan’s Principle is a human rights principle grounded in substantive equality. The criterion included in the Tribunal’s definition in 2017 CHRT 14 of providing services “above normative standard” furthers substantive equality for First Nations children in focusing on their specific needs which includes accounting for intergenerational trauma and other important considerations resulting from the discrimination found in the Merit Decision and other disadvantages such as historical disadvantage they may face. The definition and orders account for First Nations’ specific needs and unique circumstances. Jordan’s Principle is meant to meet Canada’s positive domestic and international obligations towards First Nations children under the CHRA, the Charter, the Convention on the Rights of the Child and the UNDRIP to name a few. Moreover, the Panel relying on the evidentiary record found that it is the most expeditious mechanism currently in place to start eliminating discrimination found in this case and experienced by First Nations children while the National Program is being reformed. Moreover, this especially given its substantive equality objective which also accounts for intersectionality aspects of the discrimination in all government services affecting First Nations children and families. Substantive equality is both a right and a remedy in this case: a right that is owed to First Nations children as a constant and a sustainable remedy to address the discrimination and prevent its reoccurrence. This falls well within the scope of this claim.
[4] Consequently, the Tribunal determined all the above need to be adequately funded. This means in a meaningful and sustainable manner so as to eliminate the systemic discrimination and prevent it from reoccurring.
[5] The Tribunal issued a series of rulings and orders to completely reform the Federal First Nations Child and Family Services Program. In 2019, the Tribunal ruled and found Canada’s systemic and racial discrimination caused harms of the worst kind to First Nations children and families. The Tribunal ordered compensation to victims/survivors and, at the request of the complainants and interested parties, the Tribunal made binding orders against Canada to provide compensation to victims/survivors. The Tribunal then issued a series of compensation process decisions at the parties’ requests and this process came to an end in late 2020 when Canada decided to judicially review the Tribunal’s compensation decisions and halt the completion of the compensation process’s last stages which would have allowed distribution of the compensation to victims/survivors.
[6] The Tribunal announced in 2016 that it would deal with compensation later, hoping the parties would resolve this before the Tribunal ruled and made definitive orders. The Tribunal can clarify its existing compensation orders but it cannot completely change them in a way that removes entitlements to victims/survivors. The approach to challenge these key determinations is through judicial review.
[7] The Tribunal encouraged the parties for years to resolve compensation issues.
[8] The Panel was clear in 2016 CHRT 10 that it hoped that reconciliation could be advanced through the parties resolving remedial issues through negotiations rather than adjudication (para. 42). The Panel noted in 2016 CHRT 16 that some of the parties cautioned the Tribunal about the potential adverse impacts that remedial orders could have (para. 13). Accordingly, the Tribunal strongly encouraged the parties to negotiate remedies, including on the issue of compensation. The Tribunal offered to work with the parties in mediation-adjudication to help the parties craft remedies that would best satisfy their needs and most effectively provide redress to victims. Only Canada declined.
[9] The issue left unresolved, the Tribunal was obligated to rule on compensation and the compensation process. In addressing compensation, the Tribunal was required to make challenging decisions addressing novel issues. Canada advanced multiple arguments opposing compensation. The Tribunal has made legal findings based on the evidence and linking the evidence to harms justifying orders under the CHRA. This exercise is made by the Panel who exercise a quasi-judicial role under quasi-constitutional legislation. The Tribunal, guided by all the parties in this case, including the AFN, made bold and complex decisions in the best interests of First Nations children and families. The Tribunal’s decisions have been upheld by the Federal Court. Now that the Tribunal has issued those compensation decisions on quantum and categories of victims, they are no longer up for negotiation. They are a baseline. Negotiation involves compromise, which can sometimes result in two steps forward and one step back and this may be found acceptable by the parties to the negotiation. However, negotiation cannot be used to take a step backwards from what the Tribunal has already ordered.
[10] Once it found systemic discrimination, the Panel worked with rigor to carefully craft sound findings of fact and law that recognized fundamental rights for First Nations children and families in Canada and protect and vindicate those rights. The same Panel that made those liability findings against Canada is asked to let go of its approach to adopt a class action approach serving different legal purposes. The Panel was conscious that class actions were forthcoming and made sure they were not hindered by the Tribunal's compensation process. Now it is the Tribunal’s decisions that are being hindered by the FSA applying an early-stage class action lens. Indeed, the parties did not finalize the compensation distribution process to allow for the distribution of funds for the compensation already ordered by this Tribunal in 2019. They pursued another approach instead that did not fully account for the CHRA regime and the Tribunal’s orders.
[11] In May 2022, the AFN and Canada advised the Tribunal that they needed a hearing in June to present the FSA. The Tribunal set aside all summer to deal with the matter expeditiously and to have sufficient time to properly consider over 3000 pages of documents but the AFN and Canada advised that class counsel were not yet ready to sign the FSA. The FSA was finally signed on July 4, 2022, and announced publicly but was only presented to the Tribunal on July 22, 2022. The motion to address the FSA was heard in September to afford fairness to all parties. The Panel agrees the victims/survivors have been waiting long enough and emphasizes that they could have been compensated at any time since the Tribunal’s decision in 2016 and even more so after the Compensation Decision in 2019.
[12] The Panel appreciates the parties’ work to prepare for this hearing on a short-time frame and the submissions they provided both in writing before the hearing and at the hearing. There were a few issues on which the Panel had outstanding questions after the hearing. The Panel Chair requested that the parties address these outstanding questions. Once again, the Panel thanks the parties for responding to these questions promptly.
[13] The Panel emphasizes that it acknowledges First Nations inherent rights to self-determination and self-governance. The Panel recognizes the that the Canadian legal system views this motion as balancing individual and collective rights, while First Nations may frame the dialogue around responsibilities. The Tribunal emphasizes that First Nations rights holders are best placed to make decisions for their own citizens in or outside the courts. The Tribunal stresses the important fact that First Nations are free to make agreements concerning their citizens. The Tribunal understands the difficult choices made by the AFN and why the AFN has made them. First Nations had to work with $20 billion when they were asking much more for all cases.
III. Summary of the Parties’ Positions A. AFN and Canada (i) Initial Submissions [14] On July 22, 2022, the AFN and Canada submitted a joint notice of motion and supporting materials.
[15] The AFN and Canada requested a declaration that the Final Settlement Agreement (FSA) fully satisfies the terms of the Panel’s Compensation Decision, related compensation orders and the Compensation Framework. In the alternative, the AFN and Canada request the Tribunal to amend the various compensation orders and the Compensation Framework to conform to the FSA. In any event, the Tribunal’s declaration or amendments would be conditional on the Federal Court approving the FSA.
[16] The AFN has the support of the Attorney General of Canada and the representative plaintiffs of the class actions before the Federal Court.
(a) Context [17] The AFN outlines the context that led to this motion. It explains how Canada sought to engage in negotiations to provide compensation for children covered by the class action proceedings and the CHRT proceedings through a global compensation settlement. Simultaneously, Canada engaged in negotiations on long-term reform of the First Nations Child and Family Services Program (FNCFS Program) and Jordan’s Principle. The FSA provides $20 billion in compensation to survivors.
[18] The AFN identifies its history of trying to address the discrimination in the FNCFS Program, dating back to 1998 and involving reports such as the National Policy Review and the Wen:de reports.
[19] The AFN indicates that it was the only party in these CHRT proceedings to advance a claim for individual compensation for children, parents and siblings affected by Canada’s discrimination. The Tribunal ultimately awarded the maximum compensation available under the CHRA to affected First Nations children and caregiving parents and grandparents. This compensation was for children removed from their homes, families and communities and those who experienced a delay, denial or gap in the delivery of an essential service. The AFN notes that the Tribunal retained jurisdiction to address issues that arose in the compensation process. Furthermore, the Tribunal sought to promote a dialogic approach with discussions and negotiations between the parties. The AFN explains how the parties engaged in subsequent discussions and also came back to the Tribunal for further rulings on compensation. The Tribunal retained jurisdiction on all its compensation rulings, including retaining jurisdiction over the Compensation Framework.
[20] The AFN notes that the compensation decisions were upheld by the Federal Court on judicial review. During those arguments, the AFN and Caring Society argued that Canada should pay compensation to every child affected by the FNCFS Program that was taken into out-of-home care and to children affected by Canada’s narrow interpretation of Jordan’s Principle. Compensation should be paid to both children and their parents or grandparents. The AFN highlights the comments in the Federal Court decision encouraging the parties to engage in good faith discussions to achieve a fair and just settlement.
[21] The AFN describes the class action suits brought in the Federal Court. The class actions provide compensation for victims of Canada’s discrimination dating back to 1991. The classes of victims eligible for compensation under the class actions drew on the victims identified in the Compensation decision. It establishes six classes of victims:
A)Removed child class: First Nations children removed from their homes between 1991 and 2022 as minors while they or one of their parents was ordinarily resident on reserve.
B)Removed child family class: Parents, grandparents or siblings of members of the removed child class.
C)Jordan’s Principle class: All First Nations minors living in Canada who between 2007 and 2017 had a confirmed need for an essential service and faced a denial, delay or service gap with respect to that needed essential service.
D)Trout child class: Similar to the Jordan’s Principle class, but covering First Nations children between 1991 and 2007.
E)Jordan’s Principle family class: Parents, grandparents or siblings of members of the Jordan’s Principle class.
F)Trout family class: Parents, grandparents or siblings of members of the Trout child class.
[22] The AFN indicates its estimates on the size of each class. The Removed child class is estimated at 115,000 members. The Removed child family class is estimated to have 1.5 caregiving parents or grandparents eligible for compensation for each child, with some caregivers having multiple removed children. The other classes are harder to estimate. The Jordan’s Principle class is estimated to be between 58,385 and 69,728 members. The Trout child class is estimated at 104,000. There is no estimate for the Jordan’s Principle and Trout family class sizes.
[23] The AFN recounts the history of the negotiations that resulted in the FSA. Discussions first occurred through a mediator as part of the Federal Court process relating to the class actions. In addition to the parties to the class actions, the Caring Society participated in these mediations. Following this, negotiations occurred under the supervision of the Honourable Murray Sinclair. These negotiations primarily involved the parties to the class actions, with some consultations with the Caring Society and other parties before the Tribunal. These negotiations led to an Agreement-in-Principle.
[24] The Agreement-in-Principle provided $20 billion to release Canada of all compensation claims under the Tribunal proceedings and class actions. Any unused compensation funds would not revert back to Canada. The parties acknowledged there was uncertainty on the number of victims eligible for compensation. The design of the distribution of the funds was up to the class action plaintiffs. The Agreement-in-Principle also addressed the opt-out period, the fact that the orders would satisfy the Tribunal compensation process, the tax treatment of compensation, notice, legal fees and a request for a public apology. The parties used the Agreement-in-Principle as the basis to develop the FSA.
[25] The AFN indicates that class counsel and the AFN had the following objectives when developing the FSA:
A)maintain and increase the awards under the Tribunal’s Compensation Decision to the greatest extent possible;
B)ensure proportionality in compensation based on objective factors;
C)where compromises are required, compensation should favour children;
D)a trauma informed and culturally sensitive process;
E)no obligation for survivors to undergo an interview or cross-examination to receive compensation;
F)a claims process that is easy and simple enough not to require professional assistance to get compensation;
G)provide support to survivors through the compensation process; and
H)the entire settlement fund amounts go to survivors without deductions for counsel fees or payments to third parties.
(b) FSA Terms [26] The AFN summarizes the terms of the FSA.
[27] The preamble codifies the objectives of the FSA. This includes administering the funds in an expeditious, cost-effective, user-friendly, culturally sensitive and trauma-informed manner. Overall, the objectives aim to ensure survivors are well supported in the process and do not experience barriers and re-traumatization.
[28] The $20 billion in settlement funds are to be paid into trust once all possibilities of appeal from the settlement order have been exhausted.
[29] The AFN summarizes the classes covered by the FSA as follows:
A)Removed child class: A First Nations individual who
B)Removed child family class: All brothers, sisters, mothers, fathers, grandmothers and grandfathers of a member of the removed child class at the time of removal.
C)Jordan’s Principle class: First Nations individuals who, between December 12, 2007 and November 2, 2017, did not receive from Canada an essential service (whether by denial or service gap) relating to a confirmed need, or whose receipt of an essential service relating to a confirmed need was delayed by Canada on ground including a lack of funding or jurisdiction, or a result of a service gap or jurisdictional dispute.
D)Jordan’s Principle family class: All brothers, sisters, mothers, fathers, grandmothers or grandfathers of a member of the Jordan’s Principle Class at the time of the delay, denial or service gap.
E)Trout child class: First Nations individuals who, between April 1, 1991 and December 11, 2007, did not receive from Canada an essential service (whether by denial or service gap) relating to a confirmed need, or whose receipt of an essential service relating to a confirmed need was delayed by Canada on grounds including a lack of funding or jurisdiction, or a result of a service gap or jurisdictional dispute.
F)Trout family class: All brothers, sisters, mothers, fathers, grandmothers or grandfathers of a member of the Trout Child Class at the time of the delay, denial or service gap.
i. while under the age of majority;
ii. while they or at least one of their caregivers were ordinarily resident on reserve or living in the Yukon;
iii. were removed from their home by child welfare authorities or voluntarily placed into care between April 1, 1991 and March 31, 2022;
iv. whose placement was funded by ISC.
[30] First Nations individuals includes individuals registered pursuant to the Indian Act, those entitled to be registered under s. 6(1) or 6(2) of the Indian Act as it read on February 11, 2022, and those included on Band Membership lists and who met the Band Membership requirements under s. 10-12 of the Indian Act by February 11, 2022. For purposes of the Jordan’s Principle class, it also includes individuals recognized by their First Nation by February 11, 2022.
[31] The AFN estimates that $7.25 billion will be used to compensate the removed child class, $5.75 billion for the removed child family class, $3 billion for the Jordan’s Principle class, $2 billion to the Trout child class and $2 billion for the Jordan’s Principle and Trout family classes.
[32] The AFN indicates that the parties will recommend an administrator to be appointed by the court. The administrator will be responsible for developing processes to compensate individual claimants and ensuring the funds flow in a trauma-informed manner. The administrator will be responsible for ensuring appropriate standards are maintained in how the funds are distributed to beneficiaries. This is consistent with the objectives of the claims process, that aims to minimize the administrative burden on survivors. The administrator will provide regular reports, which will assist a First Nations led Settlement Implementation Committee and ultimately the Federal Court in overseeing the process and addressing any systemic issues that arise.
[33] The AFN identifies that the FSA will have a comprehensive plan to provide notice to beneficiaries. There will be an opt-out period. Beneficiaries will have three years to make a claim once they reach the age of majority, with extensions possible for personal circumstances.
[34] A Cy-près fund will benefit beneficiaries who do not receive direct compensation. The fund will have an endowment of $50 million and support activities such as family reunification, access to cultural activities, access to transitional supports and facilitating access to services for Jordan’s Principle beneficiaries who may lose access to services upon attaining the age of majority.
[35] The AFN highlights that the full $20 billion in compensation funds will benefit survivors because Canada has agreed to pay the costs of administering the settlement and counsel fees separately. In addition, the $20 billion will be invested and any interest will also benefit survivors.
[36] The AFN notes that Canada will make best efforts to ensure that the benefits are not taxable income and do not affect federal, provincial or territorial social assistance benefits.
[37] The AFN explains that the FSA provides wellness supports for beneficiaries. These include service coordination, bolstering the existing network of health and cultural supports, access to mental health counselling, and access to a youth specific support line.
[38] The AFN explains the process for compensating the estates of deceased children who are entitled to compensation. It also indicates that there is a process in place for individuals who lack legal capacity because of a disability.
[39] The FSA contemplates Canada proposing to the Office of the Prime Minister that the Prime Minister make an apology.
[40] The AFN notes that there are some areas where more work is required. These areas include finalizing the Jordan’s Principle assessment methodology, approving the plan to give notice to beneficiaries, assembling data in Canada’s control, appointing an administrator, and receiving approval of the FSA by the Federal Court.
(c) Arguments [41] First, the AFN argues that the Tribunal should support the FSA because it has the support of the AFN, Canada and class action counsel. The AFN has their full support in its submissions. The AFN indicates it supports the FSA because it ensures the timely payment of compensation, significantly expands the number of survivors eligible for compensation, and provides that those who suffered the greatest harm will receive the greatest compensation. The AFN views the FSA as the most effective and efficient means of paying out the significant compensation for First Nation victims of Canada’s discrimination. The AFN emphasises that it has pushed for individual compensation since the start of the Tribunal’s case and notes that, as the national political governing body for First Nations, it is best positioned to understand the impact of the compensation on First Nations across Canada.
[42] Second, the AFN argues that the Tribunal has the jurisdiction to endorse the FSA. The AFN highlights the broad remedial powers under the CHRA. It identifies how the Tribunal has used the broad remedial authority in this case to craft the existing orders in this case, including retaining jurisdiction that provides the Tribunal broad discretion to return to a matter. The AFN relies on the dialogic approach as endorsed by the Federal Court. The AFN views the dialogic approach as encouraging the parties to engage in negotiations and having sufficient flexibility to support the negotiations that occurred in this case. The CHRA supports the Tribunal being flexible and innovative in providing human rights remedies.
[43] Given this context of the Tribunal’s remedial powers, the AFN argues the Tribunal’s retained jurisdiction is sufficiently broad to permit it to consider the FSA as satisfying its compensation orders. The Tribunal has explicitly retained the jurisdiction on remedial issues which provides it jurisdiction to consider the AFN and Canada’s proposal to endorse the FSA. The FSA is a product of negotiations as contemplated with the dialogic approach.
[44] Third, the AFN argues that the Tribunal has discretion in the manner in which it evaluates the FSA as satisfying the Tribunal’s compensation orders. The AFN submits that there are no precedents directly on point for when the parties successfully negotiated a settlement outside the Tribunal’s process that satisfies a compensation order. There are some parallels with the Compensation Framework negotiated by the parties but there are still differences in the circumstances. The AFN accordingly submits the Tribunal should interpret its broad remedial jurisdiction to consider whether the FSA satisfies the Tribunal’s compensation orders.
[45] Generally speaking, the AFN contends that the Tribunal should apply a test of whether the FSA reasonably and in a principled manner satisfies the Tribunal’s compensation orders and the underlying principle of promoting the rights of survivors. The AFN suggests specific factors that can help make this assessment. These include whether the FSA meets the Tribunal and CHRA’s compensation objectives, international human rights principles, the results of the dialogic process, and reconciliation. The AFN also asks the Tribunal to draw on principles considered by the Federal Court in approving class action settlements compensating First Nations individuals for Canada’s historic discrimination. In such circumstances, the Federal Court considers whether the settlement is fair and reasonable and whether it is in the best interests of the class as a whole. This can involve considering the settlement terms and conditions, the likelihood of success or recovery through litigation, the future expense and duration of further litigation, the dynamics of settlement negotiations and positions taken therein, the risks of not unconditionally approving the settlement, and the position of the representative plaintiffs. Of particular significance are the litigation risks of not approving the agreement and the view of the representative plaintiffs.
[46] Fourth, the AFN sets out how the different parts of the FSA align with and build on the Tribunal’s compensation orders.
[47] The quantum of compensation is fair, reasonable and principled. The AFN argues it meets or exceeds the objectives of the Tribunal’s orders. The total compensation of $20 billion is significant. The amounts payable to individuals will be meaningful and the total compensation is historic and reflects the magnitude of the harms.
[48] The AFN submits that the compensation mechanism is reasonable and takes advantage of experience gained from previous First Nations settlements. The mechanism minimizes re-traumatizing victims. It also prioritizes access to justice, efficiency and expediency. In order to achieve this, the FSA adopts an approach that is modeled on the Indian Residential School Settlement common experience payment. There is a presumption in favour of qualification for compensation with low burdens of proof and evidentiary requirements on survivors. Proportionality in compensation relies on objective factors whenever possible.
[49] The AFN explains that members of the removed child class would receive, at a minimum, the $40,000 in damages ordered by the Tribunal. The FSA expands compensation temporally to cover children affected by Canada’s discriminatory funding back to April 1, 1991 when Directive 20-1 came into force. This expands the number of children eligible for compensation by about 56,000. The AFN argues that the eligibility is also expanded to children who were removed from their home but were not removed from their community because they were placed in ISC funded care within their community. In addition to expanding eligibility, basing eligibility on ISC funded care links compensation to the discriminatory practice that incentivised removals and placements over preventative measures and it facilitates the identification of affected children. The AFN indicates that there is compensation for victims in this category who suffered exceptional harm based on objective proxies of harm such as a child’s age and number of years in care. This allows the compensation to exceed the statutory maximum the Tribunal could order. The exact value of these enhancement payments is not yet known, both because the number of beneficiaries is not yet known and the relative weight of different factors is not yet known.
[50] The AFN indicates that compensation for the removed child family class is similarly based on ensuring a minimum payment of $40,000 to eligible beneficiaries. It also expands the eligible beneficiaries as the number of eligible children is increased. The AFN argues that the FSA expands the caregivers eligible for compensation beyond biological parents and grandparents as contemplated in the Tribunal’s orders to now include adoptive and step caregivers.
[51] The AFN argues that the FSA expands the scope of eligible beneficiaries with the Trout child class and the Trout family class. These classes expand eligibility for Jordan’s Principle to cover the period between 1991 and 2007 both for affected children and caregivers. The FSA will provide up to $20,000 for children who do not have objective aggravating factors and up to $40,000 for those children with objective aggravating factors. Caregivers of children who suffered the highest levels of impact may be entitled to some direct compensation. Including these beneficiaries is significant as their harm predates the recognition of Jordan’s Principle.
[52] The AFN supports the establishment of a Cy-près fund that will primarily benefit class members who do not receive direct compensation. It will be endowed with $50 million. This includes siblings of affected children. The benefits of the Cy-près fund are consistent with the Tribunal’s concern that this sort of fund be in addition to, rather than instead of, direct compensation.
[53] The AFN contends that the FSA supports the Tribunal’s concern that any compensation process minimizes trauma to survivors. This is consistent with the objectives of the Tribunal’s compensation orders. It does this both by requiring the administrator to take a trauma-informed approach and requiring the administrator to follow a presumption that claimants are acting in good faith and requiring the administrator to draw all reasonable inferences in favour of claimants. Some further examples include a guarantee that none of the child victims will be required to submit to an interview or examination and the Cy-près fund’s objective of providing culturally sensitive and trauma-informed services. The supports during the compensation process include service coordination, bolstering existing health and cultural supports, access to mental health counselling, and enhanced helpline services.
[54] The AFN argues that the supports available to victims under the FSA supports and expands the initiatives contemplated under the Tribunal’s compensation orders. The supports that are available are robust. They will also remain available until all beneficiaries have completed the claims process. In addition to the supports aimed at ensuring a culturally sensitive and trauma-informed approach, navigators will be available to help claimants navigate the process. Canada will provide further funding for five years to the AFN to implement First Nations-led supports. The Cy-près fund aims to provide benefits to class members who are not eligible for direct compensation.
[55] The AFN explains that it has a notice plan that aims to ensure every beneficiary will receive notice in order to submit a claim. Individuals who sign up will receive notice when they are eligible to make a claim for compensation.
[56] The AFN indicates that the FSA provides an opt-out period of six-months. Individuals may opt out of the compensation process during that time. If the Tribunal declares that the FSA satisfies its compensation orders, such individuals would not be able to pursue compensation under the Tribunal’s orders.
[57] There are a number of further ways in which the FSA mirrors the Tribunal’s compensation orders. These include the administrator in charge of distributing compensation, the distribution protocol, Canada funding supports to beneficiaries as they navigate the process, efforts to ensure the compensation is tax-free and does not affect social assistance benefits, a right for survivors to appeal denials of benefits, and protections to ensure survivors are the ones who benefit from the compensation.
[58] Fifth, the AFN argues that while the FSA seeks alignment with the Tribunal’s compensation orders, where there are necessary deviations, they are consistent with the principles underlying the Tribunal’s compensation orders. The AFN argues that compromises were required because of the fixed amount of compensation available, the complexities and lack of data for Jordan’s Principle and Trout class members, and expanding eligibility back to 1991. Compromises were designed to favour children who suffered substantial impacts.
[59] The AFN indicates there are two points where the removed child family class may deviate from the Tribunal’s Compensation Framework. First, caregiving parents and grandparents will receive additional compensation up to $60,000 in the event they had multiple children removed rather than multiples of $40,000. The second change is that if there is an unexpected number of claimants, compensation may be reduced to ensure that all caregiving parent and grandparent victims receive compensation. The maximum compensation of $60,000 similarly ensures there are enough funds to compensate all eligible caregiving parents and grandparents. Further, family class members who are not eligible for direct compensation can still benefit from the Cy-près fund.
[60] The AFN contends that the process for compensating Jordan’s Principle victims generally follows the principles identified by the Tribunal. The FSA aims to ensure that children who suffered discrimination and were objectively impacted are compensated through a process that is objective and efficient and the definition of essential services is reasonable. The process focuses on establishing a confirmed need for an essential service that was the subject of a delay, denial or service gap. Those claimants who are most impacted will receive at least $40,000 while those who are less seriously impacted will receive up to $40,000. This accounts for the significant uncertainty in the class size and is expected to result in children who were eligible for Jordan’s Principle compensation under th