Honouring the Past, Securing the Future: Historic $23.34 Billion Settlement In First Nations Child Welfare Class Action Sets New Precedent

On October 24, 2023, the court approved a $23.34 billion settlement agreement in two class actions requiring the Government of Canada to compensate the victims of its systemic discrimination against certain First Nations children since 1991.[1]

The class actions followed a landmark decision of the Canadian Human Rights Tribunal (CHRT) in January 2016 ordering the federal government to end its discrimination and immediately reform the First Nations Child and Family Services Program.[2] Since this decision, the CHRT has issued over 13 non-compliance orders against Canada. In September 2019, the CHRT issued a Compensation Decision ordering the federal government to pay eligible First Nations children and their caregivers $40,000 in compensation.[3]

The two class actions advanced since early 2019 seek compensation dating back to 1991. They thus expand the scope of First Nations children and families eligible for compensation beyond what is captured by the CHRT’s orders, which only dated back to 2006. They also expand the scope of the CHRT’s orders by advancing the claims of First Nations children apprehended since 2006, but who were placed within their communities. The class proceedings were advanced on behalf of First Nations children living on-reserve and in the Yukon to seek justice against the systemic discrimination perpetuated by the federal government. They were also advanced on behalf of First Nations children anywhere in Canada who needed an essential health or social service since 1991, but faced delay, denial or a service gap.

The Settlement Agreement

This settlement agreement will compensate tens of thousands of First Nations Children and some of their caregiving parents or caregiving grandparents for two forms of systemic discrimination.

First, the denial of proper funding to child welfare agencies responsible for the protection and well-being of First Nations children has directly contributed to the epidemic numbers of First Nations children on reserves being removed from their homes and communities and placed in state care. As a result, the settlement provides compensation to First Nations children living on reserves or in the Yukon who were removed from their homes by child welfare agencies operating in First Nations communities and placed in out-of-home care between April 1, 1991 and March 31, 2022.

Second, the federal government has delayed and denied essential services and products to tens of thousands of First Nations children, and in doing so also failed to honour Jordan’s Principle, which required the federal government to provide First Nations children with these necessary services and products. The settlement therefore also provides compensation to First Nations children who did not receive timely access to essential services and who had a confirmed need for those services between April 1, 1991 and November 2, 2017.

In addition, the settlement also provides compensation to certain families and caregivers of the affected First Nations children.

Further Reform to Canada’s Child Welfare System

Child welfare emerged as a key concern highlighted in the report of the Truth and Reconciliation Commission in 2015 after its thorough investigation of the traumatic church-administered, government-funded residential school system that was in operation until 1996.[4]

This settlement agreement sets an important precedent in the recognition of these fundamental issues and provides a stepping stone for reform. The effect of any settlement of this nature is retroactive and constitutes a single facet of a comprehensive process to fix the harms perpetuated against Indigenous peoples in Canada. Further structural reforms are necessary to prevent the persistence of discrimination. As part of such reform, the Canadian government has committed an additional $20 billion to restructure the child welfare system.

The Claims Process

At this time, the claims process is not yet open. Details on compensation eligibility and the application process will be available at a later date.

Importantly, the federal government will not be directly involved in the process of administering compensation to the First Nations children and the families captured by this settlement agreement. Implementation of the settlement is First Nations-led.

For updates and information about the settlement and to sign up, please visit fnchildclaims.ca or call 1-833-852-0755.

[1] Moushoom v. Canada (Attorney General), 2023 FC 1466.

[2] First Nations Child and Family Caring Society of Canada et al. v. Canada (A.G.), 2016 CHRT 2.

[3] First Nations Child and Family Caring Society of Canada et al. v. Canada (A.G.), 2019 CHRT 39.

[4] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), https://irsi.ubc.ca/sites/default/files/inline-files/Executive_Summary_English_Web.pdf.