Appeal court denies First Nations child welfare class action

The Federal Court of Appeal has overturned the certification of a class action by 10 First Nations that sought compensation from Ottawa for the collective harms of Canada’s First Nations child welfare system, ruling on Oct. 22, 2026, that the case cannot go ahead as a class proceeding in the Federal Court.

In Canada (Attorney General) v. Fisher River Cree Nation, 2026 FCA 176, a three-judge panel allowed the federal government’s appeal, set aside the Federal Court’s March 2025 certification order and dismissed the certification motion. The reasons were written by Justice Sylvie Roussel, with Justices Anne Mactavish and Nathalie Goyette agreeing. No costs were awarded because neither side asked for them.

The plaintiffs are Fisher River Cree Nation, Poplar River First Nation, Horse Lake First Nation, Swan River First Nation, Sioux Valley Dakota Nation, Manto Sipi Cree Nation, Whitefish Lake First Nation, Sucker Creek First Nation, Dene Thá First Nation and Dakota Tipi First Nation, each acting through its chief. According to the decision, they claim that the operation of the First Nations Child and Family Services program, in breach of Jordan’s Principle, led to the removal of First Nations children from their lands and communities. They say that caused a collective loss of the communities’ ability to pass on their cultures, spirituality, traditions and languages.

The claim is based on Aboriginal rights under section 35 of the Constitution Act, 1982, freedom of conscience and religion under section 2(a) of the Charter, the honour of the Crown, fiduciary duties and systemic negligence. It excludes individual children and families from the class, and the claim period starts in April 1991.

The appeal court did not rule on whether those allegations are true. It decided the case on procedure. Roussel found that the certification judge’s reasons on the “preferable procedure” requirement, one of five conditions for certifying a class action, were too thin for meaningful appellate review. The judge’s analysis of that requirement ran five paragraphs, the appeal court said, and the only apparent explanation was that separate provincial proceedings might carry cost consequences.

Rather than send the matter back, the appeal court decided the motion itself. It relied on its 2025 decision in Canada v. Stonechild, 2025 FCA 105, which found that a Federal Court class action over Indigenous child welfare was not the preferable procedure because the Federal Court cannot compel provinces, which have immunity from discovery, to produce documents. The decision notes that Stonechild is the subject of an application for leave to appeal to the Supreme Court of Canada.

Roussel wrote that the provision of child and family services “lies at the heart of the proceeding”, and that before federal legislation in 2019, provinces and territories generally held primary jurisdiction over child welfare. She concluded that the provinces, territories and provincially mandated child welfare agencies are “essential participants in the fair resolution” of the claims, and that the preferable procedure is one in which a court can compel their participation.

The court noted that the Supreme Court of Canada upheld the constitutionality of the federal Indigenous child welfare law in 2024 (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5), but said the alleged wrongs mostly predate 2019 and so must be judged against the earlier patchwork of provincial laws and policies.

The ruling also carries a limit. Roussel wrote that her conclusion should not be read as deciding that the subject matter is justiciable, or that it does not involve core public policy decisions better examined through public inquiries. The decision does not say what the First Nations may do next. Parties to a Federal Court of Appeal judgment generally have 60 days to apply to the Supreme Court of Canada for leave to appeal.

Canada argued before the courts that the claim could not move forward without the provinces and territories, that the class was poorly defined and that some of the losses had already been compensated in other proceedings. The First Nations, according to the decision, argued that Canada’s own funding and program design for child welfare was the conduct at issue. The Federal Court had certified the case in 2025, finding a class proceeding was preferable.

The ruling lands as First Nations weigh other routes for child welfare claims. The Assembly of First Nations recently urged First Nations to file child welfare claims, and Ottawa is also in Federal Court over the Canadian Human Rights Tribunal’s handling of the long-running child welfare case, as we reported in Ottawa’s third court bid against the tribunal. Earlier this month, the Saskatoon Tribal Council signed a $269-million child welfare deal.

The full reasons are available on the Federal Court of Appeal’s website and on CanLII.

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