Negotiation, not litigation, is the way towards reconciliation. This is the central message sent by the Aboriginal Law, Child and Youth Law and Constitutional and Human Rights Sections of the Canadian Bar Association in a letter to the Minister of Indigenous Services and the Minister of Justice, urging the government to cease further litigation in the matter of Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada.
At the end of October 2021, the government of Canada did file a notice to appeal the September 29 Federal Court decision in response to the government’s applications for judicial review of two rulings by the Canadian Human Rights Tribunal, or CHRT, on discrimination against First Nations children and families. But it has also indicated it would work with Indigenous groups to reach a negotiated settlement by the end of December 2021.
The September 2021 decision, the CBA Sections note, “follows a series of rulings on the initial 2007 complaint by the First Nations Child and Family Caring Society and Assembly of First Nations, alleging discrimination against First Nations children and families in Canada’s provision of First Nations Child and Family Services (FNCFS) and application of Jordan’s Principle.”
In January 2016, the Sections write, “the CHRT found that Canada was in fact discriminating against First Nations children and families in its provision and funding of the FNCFS Program and narrow application of Jordan’s Principle, and ordered Canada to reform its FNCFS Program and fully implement Jordan’s Principle.”
At the conclusion of his September 2021 decision, Justice Paul Favel stressed the importance of negotiations as a way to realize the goal of reconciliation. The CBA Sections wish to echo these comments and urge the federal government to cease any further litigation in this matter.
“This is important on behalf of all the children who did not make it home from residential schools and for the Indigenous people who struggle today to address the lingering effects of those injustices.”