Fisher River Cree Nation v Canada (Attorney General) 2025 FC 561 — Case Summary

On March 26, 2025, the Federal Court approved a class action brought by several First Nations located in Manitoba and Alberta against Canada regarding the harms their communities suffered as a result of Canada’s operation of discriminatory child welfare funding regimes from 1991 onward, during what is known as the “Millenium Scoop,” which resulted in the systemic discriminatory separation of First Nations children from their lands and communities causing a collective loss of language, culture, and tradition. The First Nations seek declaratory relief and damages for a breach of their right to freedom of conscious and religion as protected under subsection 2(a) of the Charter, breach of fiduciary duty, systemic negligence, and a breach of section 35 Aboriginal rights

Do the pleadings disclose a reasonable cause of action?

The Court found the First Nations had pleaded the material facts to establish all causes of action alleged, recognizing as novel the issue of whether a First Nation may advance a claim under subsection 2(a) of the Charter, which protects “freedom of conscience and religion.” The Court also found the First Nations had alleged facts to establish the right to practice and transmit language, culture and spirituality as an Aboriginal right protected by section 35. The connection between Canada’s operation of the First Nations Child and Family Service (FNCFS) program and Jordan’s Principle, and the infringement of the First Nations’ section 35 rights will be an issue to be determined at trial.

Subsection 2(a) Charter Claim

The First Nations argue that by removing First Nations children from their communities and preventing First Nations communities from practicing and transmitting their cultural practices and beliefs to those children, Canada has violated their rights to freedom of conscious and religion, as protected under subsection 2(a) of the Charter. Canada argued these claims could not succeed as it is not possible to distinguish between the religious and spiritual beliefs of the parents and the broader religious and spiritual beliefs of the First Nation.

The Court, recognizing that the question of whether a First Nation as a collective can advance a subsection 2(a) claim is novel, for the purpose of certification held that the First Nations had established that religious and spiritual beliefs are communally held, practiced and transmitted, and that the pleadings disclosed a reasonable cause of action in this regard.

Section 35 Aboriginal Rights Claim

The First Nations argued that Canada’s operation of the FNCFS program and Jordan’s Principle, resulting in the removal of First Nations children from their communities, breached their collective cultural, spiritual, and linguistic rights, including the right of each First Nation to pass on language, history, practices, and culture to future generations.

The Court found that these collective rights are integral to the distinctive cultures of the First Nations and that the First Nations had pleaded sufficient facts to support a section 35 Aboriginal right claim. The Court concluded that a link between an infringement of the section 35 rights to culture, spirituality and language and the removal of First Nations children from their communities would need to be established through evidence, but that the First Nations had provided a reasonable basis to find a cause of action for a potential infringement their Aboriginal rights.

Conclusion

The Court found that the material facts pleaded reasonably supported all causes of action areas alleged by the First Nations. The Court approved the proposed class definition as extending to every First Nation in Canada, including Indian Act bands and modern treaty Nations, who opts into the claim or is later added as a plaintiff.

This will be an important decision to follow as it progresses in the courts.