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
2023-09-26
Neutral citation
2023 CHRT 44
File number(s)
T1340/7008
Decision-maker(s)
Marchildon, Sophie; Lustig, Edward P.
Decision type
Decision
Grounds
National or Ethnic Origin
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2023 CHRT
44
Date:
September 26, 2023
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
Decision
Members:
Sophie Marchildon
Edward P. Lustig
Table of Contents
I. Introduction 1
A. Context 3
B. Issue to be decided by this Tribunal 13
C. Decision 14
D. Legal framework 14
E. Analysis 15
(i) Has the Revised Agreement addressed the Tribunal’s concerns raised in 2022 CHRT 41 and does it now fully satisfy the Tribunal’s orders? 15
(ii) The Derogations Regarding Kith Placements and Multiple Removals Have Been Remedied 16
(iii) The Revised Agreement now provides compensation in relation to multiple removals as set out in the Compensation Entitlement Order 23
(iv) Estates of Caregiving Parents and Grandparents 29
(v) The Uncertainties Regarding Jordan’s Principle Have Been Addressed 44
(vi) Need for Clarification regarding Parents/Caregiving Grandparents under Jordan’s Principle 50
(vii) Opt-out provision 55
(viii) Interest 56
(ix) Caring Society’s standing in Federal Court proceedings concerning the Revised Agreement 56
(x) Apology from the Prime Minister 57
(xi) Role of the Federal Court 57
(xii) Tribunal’s interpretation of specific points in the Revised Agreement 58
F. Conclusion 59
G. Orders 60
H. Retention of jurisdiction 61
I. Introduction
[1] This is a good day for human rights, First Nations children and families in Canada and a significant step towards reconciliation. The Panel congratulates the parties and all people involved in reaching this milestone and more importantly, the Panel recognizes the First Nations children and families who were harmed as a result of Canada’s discriminatory practices and whose lives are paving the way for justice. This is the largest settlement of its kind in Canadian history. Sadly, this stems from the magnitude of harms that were inflicted upon First Nations children, families, communities and Nations. Canada ought to bear this in mind as an important reminder so as to never repeat history. The cycle of harm must be broken.
“History will judge us by the difference we make in the everyday lives of children.”
— Nelson Mandela
[2] The Panel honors the First Nations leadership in Canada who voiced the importance of not leaving anyone behind and the First Nations parties’ courage for leading further negotiations. It took great leadership for the Assembly of First Nations (AFN) and Canada to collaborate and arrive at the previous historic Final Settlement Agreement (FSA). It took even greater leadership from the AFN and Canada’s Ministers and their teams to receive the Tribunal’s criticism of some aspects of the FSA (for example, leaving out some of the victims/survivors already recognized by this Tribunal), consult the Chiefs-in-Assembly, bring the Caring Society back to the negotiation table and arrive at this transformative and unprecedented Revised Settlement Agreement.
[3] The Tribunal declined to fully endorse the previous FSA because it did not fully satisfy the compensation orders the Tribunal found the victims/survivors were entitled to under the Canadian Human Rights Act, RSC 1985 c H-6. The Tribunal in rejecting the previous FSA was really hoping for a better outcome as a result of further negotiations. The Tribunal believes that even if this took many additional months to arrive to this Revised Settlement, it was well worth it for the victims/survivors of human rights violations.
[4] According to the parties, this is the largest compensation settlement in Canadian history so far and it now includes a commitment from the Minister of Indigenous Services to request an apology from the Prime Minister. The Tribunal believes this was an example of grace under pressure and commends the parties to the Revised Agreement and everyone involved for this outstanding achievement that will provide some measure of justice to First Nations children and families who have unjustly suffered because of their race instead of being treated honorably and justly.
[5] First Nations children ought to be honored for who they are - beautiful, valuable, strong and precious First Nations persons. Governments, leaders and adults in any Nation have the sacred responsibility to honor, protect and value children and youth, not harm them.
[6] Complete justice will be achieved when First Nations children will have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have when systemic racial discrimination no longer exists. The compensation in this case is only one component. The Tribunal, assisted meaningfully by the parties, has always focused on the elimination of the systemic racial discrimination found and the need to prevent similar practices from arising. The Tribunal has found this requires a complete reform. Making available to First Nations children and communities the rights, opportunities and privileges they have been denied and ensuring Canada ceases the discriminatory practices at issue in this case requires a transformation that will protect generations to come. This continues to be the Tribunal’s focus.
[7] The Panel is grateful for the Commissions’ human rights centered contributions and for the Caring Society’s courageous leadership ensuring that no child is left behind and that no one loses entitlement to compensation ordered by the Tribunal. The Panel also commends the First Nations Chiefs-in-Assembly at the AFN for their leadership in adopting a resolution in the spirit of reconciliation and prompting further negotiations on compensation to ensure that no child is left behind.
[8] The Panel recognizes the valuable contributions of the Chiefs of Ontario and the Nishnawbe Aski Nation.
[9] The Panel also recognizes Amnesty International’s past contributions on this important issue of compensation.
[10] Finally, the Panel recognizes the AFN’s and the Caring Society’s instrumental role in an effort to obtain meaningful compensation for First Nations children and families.
[11] The Panel wishes to recognize and honor the true overcomers and heroes in this case, the First Nations children and families.
[12] The Panel Chair speaks peace to every First Nations child, youth and young adult’s heart in Turtle Island (Canada) and, to all First Nations individuals and their Communities and Nations.
[13] The Panel is pleased that Canada demonstrated effective leadership in going back to negotiations and for doing the right thing in reincluding the victims/survivors that were left out of the previous settlement agreement (2022 FSA).
[14] The work is not finished, there is much more to do. Compensation is but one aspect of this case. Racial and systemic discrimination must be eliminated and similar practices must not arise or be perpetuated.
[15] Finally, while there is more to do, this milestone deserves to be celebrated as it will be transformative for thousands of First Nations children and families.
A. Context [16] 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.
[17] 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 Canadian Charter of Rights and Freedoms, 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.
(emphasis changed)
[18] 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.
[19] 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.
[20] 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.
[21] The Tribunal encouraged the parties for years to resolve compensation issues.
[22] 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.
[23] 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 Tribunal 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.
[24] 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.
[25] Indeed, on September 6, 2019, the Tribunal rendered its decision on compensation (2019 CHRT 39), wherein it ordered Canada to compensate and pay interest to: (i) certain victims of discrimination under the FNCFS Program who were removed from their homes, families and communities; (ii) their parents or caregiving grandparents and, (iii) certain victims of Canada’s discriminatory application of Jordan’s Principle. Included in the decision were First Nations children on-reserve and in the Yukon who were unnecessarily removed from their homes and communities from 2006 onwards (later confirmed to include children in out-of-home placements on January 1, 2006), and First Nations children who were denied the essential services needed, or received the essential services after an unreasonable delay, because the Government of Canada failed to meet the legal requirements of Jordan’s Principle (the “Compensation Entitlement Order”).
[26] The Tribunal ordered Canada to consult with the Caring Society and the AFN to develop a compensation distribution framework to arrive at a final order for the distribution of the compensation ordered.
[27] On October 4, 2019, Canada applied for judicial review of the Compensation Entitlement Decision and sought a stay of the Tribunal’s proceedings. After the Federal Court dismissed the stay motion on November 27, 2019, Canada agreed to work with the Caring Society and the AFN on the framework.
[28] On February 21, 2020, the Caring Society, the AFN, and Canada submitted a first draft compensation framework to the Tribunal (the “Compensation Framework”). From February 2020 to December 2020, the Caring Society, the AFN and Canada worked to finalize the Compensation Framework. While many aspects of the compensation framework were the result of negotiation and consensus, certain issues were resolved through adjudication before the Tribunal.
[29] The Tribunal ultimately addressed the issues raised before it by the parties and issued further orders clarifying various elements of its Compensation Entitlement Order, including: the age of majority, eligibility for those who remained in care as at Jan 1, 2006 and the eligibility for the estates of deceased victims (2020 CHRT 7); the definitions of “service gap”, “essential service” and “unreasonable delay” for the purpose of Jordan’s Principle compensation (2020 CHRT 15); the definition of a “First Nations child” in relation to eligibility under Jordan’s Principle (2020 CHRT 20); and that compensation owing to minor beneficiaries and those without legal capacity be held in trust (2021 CHRT 6).
[30] On February 12, 2021, the Tribunal approved the final Compensation Framework as revised by the parties (2021 CHRT 7). While this Order substantively addressed aspects of the distribution process for compensation, the parties understood that a significant amount of future work would be required by the parties to address items which included, but were not limited to, how eligibility would be determined, the operation of the implementation process and the continued role of the Tribunal. This work remained subject to Canada’s judicial review of the Compensation Entitlement Order and the Tribunal’s orders regarding eligibility under Jordan’s Principle (2020 CHRT 20 and 2020 CHRT 36), as addressed in Federal Court File Nos. T-1621-19 and T-1559-20.
[31] The judicial reviews were heard on June 14-18, 2021. On September 29, 2021, the Federal Court dismissed Canada’s applications in their entirety (2021 FC 969).
[32] On October 29, 2021, Canada appealed the Federal Court’s order (2021 FC 969) upholding the Compensation Entitlement Decision to the Federal Court of Appeal (Federal Court of Appeal File No. A-290-21).
The Class Actions and Procedural History of the Revised Final Settlement Agreement
[33] On March 4, 2019, a class action was commenced in the Federal Court seeking compensation for First Nations children who suffered comparable discrimination related to a lack of prevention services leading to the placement of First Nations children in out-of-home care as well as the discriminatory application of Jordan’s Principle, beginning on April 1, 1991 (Federal Court File No. T-402-19) (“Moushoom Class Action”).
[34] On January 28, 2020, a proposed class action was filed by the AFN and other representative plaintiffs seeking compensation for removed First Nations children and those who experienced discrimination under Jordan’s Principle (Federal Court File No. T-141-20) (“AFN Class Action”). A separate class action involving Canada’s discrimination in the provision of essential services, products and supports prior to December 2007 was commenced on July 16, 2021 by the AFN and the representative plaintiff Zacheus Trout (Federal Court File No. T-1120-21) (“Trout Class Action”).
[35] The Moushoom Class Action and the AFN Class Action were consolidated on July 7, 2021 and certified on November 26, 2021 (2021 FC 1225). The Trout Class Action was certified on February 11, 2022 (together, the three class actions are referred to as the “Federal Court Class Actions”).
[36] On December 31, 2021, the parties to the to the Federal Court Class Actions concluded an Agreement-in-Principle (“AIP”) addressing compensation. On June 30, 2022, a final settlement agreement was reached (the “2022 FSA”) and in July 2022, the AFN and Canada brought a motion to the Tribunal seeking a declaration that the 2022 FSA was fair, reasonable, and satisfied the Compensation Entitlement Order and all related clarifying orders (the “Joint Motion”). In the alternative, AFN and Canada sought an order varying the Compensation Entitlement Order, the Compensation Framework Order and other compensation orders, to conform to the 2022 FSA.
[37] The Panel agreed the victims/survivors have been waiting long enough and emphasized 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.
[38] The Tribunal heard the Joint Motion in September 2022 and dismissed the Joint Motion by letter decision on October 25, 2022, with full reasons set out in 2022 CHRT 41 and can be accessed online at: https://canlii.ca/t/k08tm.
[39] The Tribunal in 2022 CHRT 41 on the Joint Motion found that the 2022 FSA substantially satisfied the Compensation Entitlement Order. However, the Tribunal identified three (3) key areas where the 2022 FSA departed from the compensation orders, disentitled or reduced entitlements for certain victims already entitled to compensation which, as it will be explained below, was contrary to human rights principles carefully applied in the Tribunal’s findings on compensation and corresponding orders. These derogations included the following:
(a) children removed from their homes, families and communities and placed in non-ISC funded placements were improperly excluded from receiving compensation (2022 CHRT 41 at paras. 283-331);
(b) the estates of deceased caregiving parents and grandparents were excluded from receiving compensation, which was not in keeping with 2020 CHRT 7 (2022 CHRT 41 at paras. 332-350);
(c) certain caregiving parents and grandparents would receive less compensation either in circumstances of multiple removals or if there was an unexpected number of claimants which required a reduction in compensation to the class to ensure that all caregiving parent and grandparent victims received compensation (2022 CHRT 41 at paras. 351-360).
[40] The Tribunal also raised concerns regarding eligibility under Jordan’s Principle and the uncertainties introduced in the 2022 FSA regarding the class action approach, with questions around the meaning of “significant impact” and the definition of “essential service”. The Tribunal determined that uncertainty existed with respect to whether the implementation of Jordan’s Principle under the 2022 FSA would result in the victims identified by the Tribunal receiving $40,000.
[41] The Tribunal also expressed concern about the opt-out regime in the 2022 FSA (2022 CHRT 41 at paras. 385-390).
[42] The Tribunal said in 2022 CHRT 41 at paragraph 10:
that 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 in its compensation decision 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.
[43] Notably, in 2022 CHRT 41 at paragraph 169, the Tribunal stated the question of quantum of compensation was never up for discussion and no suggestion was made by the Tribunal or the parties to modify the quantum of compensation or to reduce or disentitle categories already recognized by the Tribunal in its compensation orders. In fact, this aspect was final and supported by findings and reasons and sent a strong deterrent message to Canada and a message of hope to the victims/survivors whose rights were vindicated by those findings and corresponding orders. Further, the Tribunal’s reasons illustrate the significant difference between systemic human rights remedies and those flowing from tort law. The Tribunal noted the important purpose of individual compensation for victims of discrimination:
was necessary to deter the reoccurrence of the discriminatory practice or of similar ones, and more importantly to validate the victims/survivors’ hurtful experience resulting from the discrimination.
(2019 CHRT 39 at para 14).
[44] The Tribunal reiterated that in the Compensation Entitlement Decision, 2019 CHRT 39, at para. 206, the Tribunal also made clear that its obligations are to safeguard the human rights of the victims/survivors it identified, irrespective of any proposed class proceedings:
The fact that a class action has been filed does not change the Tribunal’s obligations under the Act to remedy discrimination and if applicable, as it is here, to provide a deterrent and discourage those who discriminate, to provide meaningful systemic and individual remedies to a group of vulnerable First Nations children and their families who are victims/survivors in this case.
[45] The Tribunal in its reasons rejecting the 2022 FSA, the Tribunal mentioned that it is responsible for applying the CHRA and the human rights framework reflected in that legislation.
[46] Moreover, in 2022 CHRT 41, the Tribunal reasoned as follows:
More importantly, the Tribunal frowns on reducing compensation or disentitling victims/survivors once they have been vindicated at the Tribunal and upheld by the Federal Court. This dangerous precedent would send a very negative message to victims/survivors in this case and other human rights cases in Canada and could potentially become a powerful deterrent to pursue human rights recourses under the CHRA. Victims/survivors would never have the peace of mind that their substantiated complaints and awarded remedies would be forthcoming to them if, at any time before remedies are implemented, these remedies can be taken away from them without the need for a successful judicial review (See at, para. 259).
This is even more troubling when we consider the nature of the complaints before the Tribunal in this case. The very nature of human rights rests upon the protection of vulnerable groups. From the beginning the Tribunal found and wrote that this case is about children and the Tribunal’s mandate to eliminate discrimination and prevent similar practices from arising. Permitting reductions or disentitlements of compensation for victims/survivors who have been recognized in evidence-based findings and corresponding orders does not breathe life into human rights. Rather, it takes its breath away, (See at, para. 260).
This cannot be how the human rights regime is administered in Canada (See at, para. 261).
Once rights have been recognized and vindicated (which is no small task for complainants and victims who often face powerful respondents challenging their claim at every turn), they
are no longer up for debate by outside actors or respondents who may disagree with the orders made against them and therefore cannot contract out of their human rights obligations under the CHRA (See 2022 CHRT 41. at, para. 236).
The Tribunal cannot overstate the importance of securing victims/survivors’ rights across Canada. […] Human rights are fundamental rights that are not intended to be bargaining chips that parties can negotiate away. Similar to how human rights
legislation establishes minimum standards parties cannot contract out of, the Tribunal’s compensation orders generate binding compensation obligations on Canada. Canada cannot contract out of these obligations through an alternative
Proceeding, (See 2022 CHRT 41, at, para. 502).
[47] The Tribunal urged the parties to this proceeding and the parties to the Federal Court Class Actions to work together to allocate additional funds to cover all victims/survivors entitled to compensation as already ordered by the Tribunal and to uphold the human rights regime in a manner that respects and acknowledges those orders and the pain and suffering of all victims/survivors identified by the Tribunal in its previous reasons and orders.
[48] On December 7, 2022, the First Nations-in-Assembly unanimously adopted Resolution 28/2022 regarding compensation for the victims of Canada’s discrimination. Resolution 28/2022 included the following critical direction:
Support compensation for victims covered by the 2022 FSA on compensation and those already legally entitled to $40,000 plus interest under the Canadian Human Rights Tribunal (CHRT) compensation orders to ensure that all victims receive compensation for Canada’s wilful and reckless discrimination.
Support the principles on which the FSA is built, including taking a trauma-informed approach, employing objective and non-invasive criteria, and ensuring a First Nations-driven and culturally informed approach to compensation individuals.
Continue to support the Representative Plaintiffs and all victims of Canada’s discrimination by ensuring that compensation is paid out as quickly as possible to all those who can be immediately identified and to continue to work efficiently to compensate those who may need more time.
[49] With the guidance set out by the Tribunal in 2022 CHRT 41 and the direction and support provided by First Nations leadership, the parties to the Federal Court Class Actions and the Caring Society engaged in negotiations resulting in the Revised Agreement. The Revised Agreement was approved by the First Nations-in-Assembly on April 4, 2023, and executed by the parties to the Federal Court Class Actions on April 19, 2023. As the Caring Society was not a party to the Federal Court Class Actions, the AFN, the Caring Society and Canada executed Minutes of Settlement in this proceeding on April 19, 2023.
B. Issue to be decided by this Tribunal [50] The parties submitted the following notice of motion to the Tribunal:
MOTION FOR APPROVAL OF THE REVISED COMPENSATION FINAL SETTLEMENT AGREEMENT and CONSENT RELIEF OF THE ASSEMBLY OF FIRST NATIONS, FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA and ATTORNEY GENERAL OF CANADA
THIS CONSENT MOTION IS MADE under Rule 3 of the Tribunal’s Rules of Procedure (Proceedings Prior to July 11, 2021) and is for orders under paragraph 53(2)(b) of the Canadian Human Rights Act (the “CHRA”) and under Rule 1(6) and 3(2)(d) and pursuant to the Tribunal’s continuing jurisdiction in this matter. …
AND TAKE NOTICE THAT THIS CONSENT MOTION IS FOR orders confirming that the revised First Nations Child and Family Services, Jordan’s Principle and Trout Class Final Settlement Agreement (the “Revised Agreement”), made respecting Federal Court File Nos. T-402-19 (Moushoom et al v Attorney General of Canada), T-141-20 (Assembly of First Nations et al v His Majesty the King) and T-1120-21 (Trout et al v Attorney General of Canada) dated April 19, 2023, fully satisfies the Tribunal’s Compensation Orders (2019 CHRT 39, 2020 CHRT 7, 2020 CHRT 15, 2021 CHRT 6, 2021 CHRT 7 and 2022 CHRT 41) in this proceeding.
[51] The parties jointly submit that the Revised Agreement presented to the Tribunal on this motion heeds the Tribunal’s guidance and the direction from the First Nations-in-Assembly: the derogations have been remedied; the uncertainties in relation to eligibility under Jordan’s Principle have been addressed; the approach to compensation in relation to the estates of parents/caregiving grandparents has been varied to ensure a better outcome for children impacted by Canada’s discrimination; and compensation to parents and caregiving grandparents under Jordan’s Principle has been aligned with the spirit and intent of the Tribunal’s finding in this case. The Assembly of First Nations, the Caring Society, the Human Rights Commission, the Chiefs of Ontario, the Nishnawbe Aski Nation and Canada consent to this motion. The Revised Agreement can be consulted online at: https://afn.bynder.com/m/21fa33f66e9b73d1/original/04-2023-Compensation-Final-Settlement-Agreement-April-17-with-schedule
C. Decision [52] After careful consideration, the Panel agrees.
The joint motion is allowed.
D. Legal framework [53] The Tribunal relies on the same legal framework detailed in length in its reasons in 2022 CHRT 41 to support the finding that it has jurisdiction to determine if the Revised Settlement fully satisfies the Tribunal’s compensation orders. The Panel outlined the proper approach to reviewing a request for a consent order in 2020 CHRT 36 at para. 51:
The first step for this consent order is to do the analysis under section 53 of the CHRA in order to determine if the consent order sought is within the Tribunal’s authority under the Act. If the answer is negative, the analysis stops there and the Tribunal cannot make such an order. If the answer is affirmative, the Tribunal then determines if the consent order sought is appropriate and just in light of the specific facts of the case, the evidence presented, its previous orders and the specifics of the consent order sought.
[54] Moreover, the legal framework pertaining to the requested orders will be addressed in turn in the analysis below.
E. Analysis (i) Has the Revised Agreement addressed the Tribunal’s concerns raised in 2022 CHRT 41 and does it now fully satisfy the Tribunal’s orders? [55] The Tribunal will not embark on a clause-by-clause comment of a very voluminous document. The Tribunal has carefully reviewed the Revised Agreement and will comment only on the parts that it had found problematic in 2022 CHRT 41 and that needed changes in order to fully satisfy the Tribunal’s orders. In sum, the Tribunal agrees that the rest of the Settlement Agreement and claims process set out in the Revised Agreement and further measures to be developed by class counsel in consultation with experts and approved by the Federal Court satisfies the requirements under the compensation framework as ordered in 2019 CHRT 39 and 2021 CHRT 7. The Revised Agreement does not require children to testify and will be culturally appropriate and safe. This formed part of the Tribunal’s compensation orders. Indeed, the Tribunal stressed the importance of avoiding the retraumatizing of children in its compensation orders. The Revised Agreement adopts a trauma informed approach best suited in this case. Further, subject to the Federal Court’s approval, a Settlement Implementation Committee composed of five members will be established and will include two First Nations members and three Counsel members. As per the Tribunal’s orders, subject to some exceptions, the compensation will be paid directly to the victims/survivors or in a trust fund until they have reached the age of majority as determined by law and administered by a Court appointed independent Trustee. Upon careful consideration and, in applying a human rights lens, the Tribunal finds the Revised Agreement in the best interests of First Nations children and families who are entitled to compensation under the Tribunal’s orders.
[56] For the above reasons, the Tribunal only needs to focus on the sections that will be discussed below.
[57] Of note, the Revised agreement now includes a request for an apology from the Prime Minister, standing in Federal Court for the Caring Society, a longer opt-out deadline for victims/survivors and interest on compensation as per the Tribunal’s compensation orders. The Tribunal will also discuss these in turn below.
[58] While the Tribunal ruled that a settlement need not mirror all the Tribunal’s compensation orders as long as the spirit of its orders is honoured, it cannot disentitle, reduce or strip away the victims/survivors’ compensation guaranteed in the Tribunal’s orders. Therefore, ensuring this is remedied in the Revised Agreement is the focus and the framework in the Tribunal’s analysis of the Revised Agreement.
[59] A summary of joint submissions from the parties is reproduced below. The Tribunal decided that it was wise to use the parties’ own description of how they consider having addressed the Tribunal’s concerns instead of rewording them. The Tribunal will address them in turn and provide its reasons under each of the parties’ descriptions.
(ii) The Derogations Regarding Kith Placements and Multiple Removals Have Been Remedied [60] In 2022 CHRT 41, the Tribunal found that the 2022 FSA settlement amount of $20,000,000,000 did not include a budget to compensate First Nations children removed from their homes, families and communities who were placed in placements not funded by Canada (“Non-ISC Funded Placements”).
[61] The joint parties submit that the Revised Agreement now includes compensation for First Nations children removed from their homes, families and communities and placed in alternative non-ISC funded placements and compensation for their parents/caregiving grandparents. These placements are referred to as “Kith Placements” in the Revised Agreement. Children placed in Kith Placements, as well as their parents/caregiving grandparents, are entitled to $40,000 plus applicable interest.
[62] Article 7 of the Revised Agreement sets out the principal eligibility requirements for First Nations children removed from their homes, families and communities, and placed in Kith Placements. Given the challenges with the available documentation for Kith Placements, the parties will craft a separate and unique approach for the verification of eligible class members under this category. The approach will involve the participation of the Caring Society, as well as input from youth in care and youth formerly in care and First Nations Child and Family Services Agencies (“FNCFS Agencies”), (See, Article 7.01(8), Revised Agreement, Exhibit “F” to the AFN Affidavit). No member of the Kith Child Class will be required to submit to any form of interview or viva voce (oral) evidence taking and the claims process will be designed with the goal of minimizing risk of causing harm. Further, the joint parties state that compensation in relation to Kith Placements will require a specific approach given that data relevant to Kith Placements is often collected in a different manner than those in ISC-funded placements. The process for determining eligibility will be structured with guidance from records management experts, youth in care and youth formerly in care, and input from the Caring Society. The Revised Agreement fully satisfies the Compensation Entitlement Order in relation to these victims (See, Article 7.01(1) and (2), Revised Agreement, Exhibit “F” to the AFN Affidavit).
[63] The Revised Agreement provides for a budget of $600 million for the Kith Child Class and $702 million for the Kith Family Class, (See, Article 7.02 (5) and 7.04(2), Revised Agreement, Exhibit “F” to the AFN Affidavit). These are new amounts being committed by Canada and are not a redistribution of f