Reviewing the Rights of First Nations Children: Commenting on the Caring Society Litigation

  • July 16, 2021
  • Szymon Rodomar and Wei Yang

I. Introduction

The Federal Court recently heard submissions in an application for judicial review concerning a 2019 compensation order made by the Canadian Human Rights Tribunal (“CHRT”) for Indigenous victims of the discriminatory underfunding of child and family services (the “Compensation Decision”) [1] and the CHRT’s 2020 decision regarding the definition of “First Nations child” (the “First Nations child Decision”).[2] In the 2016 Merits Decision,[3] the CHRT found that the Caring Society substantiated their complaint that First Nations children and families living on reserve and in the Yukon are denied equal child and family services, and/or differentiated adversely in the provision of child and family services, pursuant to section 5 of the Canadian Human Rights Act (the “CHRA”).[4] The Compensation Decision set out the compensation categories for the different groups of victims of Canada’s discrimination, and the First Nations child Decision assessed the appropriate definition of “First Nations child” to be used in assessing eligibility for compensation. Canada sought judicial review of both CHRT decisions.

Oral argument concerning the Compensation Decision provides some insight into

  1. assessing harm to children in the context of human rights compensation;
  2. how international human rights obligations factor into reasonableness review; and
  3. Canada’s curious contradiction regarding the parameters of Jordan’s Principle.

Judicial review of the First Nations child Decision will provide the court with an opportunity to reflect on the detrimental effects of the Indian Act on the rights of First Nations children.