AFN Assembly, Dec. 06, 2023. Flags of the First Nations in attendance are displayed. APTN File photo
APTN News: As First Nations chiefs get ready to head to Calgary to vote on a $47.8 billion agreement to reform the child welfare system next week, a growing number of leaders, including the chief of the Tŝilhqot’in National Government (TNG), are opposing the ratification of the draft.
The Final Settlement Agreement, or FSA, was finalized by the Assembly of First Nations (AFN) and the federal government and signed in July 2024. At the time, AFN National Chief Cindy Woodhouse Nepinak said “we are closer than ever to signing a draft settlement agreement.”
But as chiefs get closer to voting on the draft document, there are concerns that not enough is known about how this will affect the child welfare system in years to come.
The TNG said it is “deeply concerned” by the implications of the proposed settlement agreement.
“There are significant concerns regarding the certainty of fiscal commitments, how funding allocations and decisions are made and who makes those decisions,” said Chief Joe Alphonse in a statement released on Wednesday. “TNG does not view the current process as transparent or inclusive and is deeply concerned that AFN has not fully utilized or included leading experts in the field.”
One of the main concerns of TNG is that once it’s ratified, the agreement would “remove the legal orders issued by the Canadian Human Rights Tribunal that currently hold Canada accountable to discrimination against First Nations children.”
“The Tribunal conclusions of discrimination to our people and our children is not news to us, it’s what Tŝilhqot’in fight for and we will continue to ensure our children are given the chance they deserve in this country,” said Alphonse.
“Any final settlement must meet the needs of our Tŝilhqot’in children and families, this is not it. Let’s work together, be inclusive, get the experts in the room and all roll up our sleeves to help get this on track.”
The AFN is also facing two resolutions at the upcoming SCA calling on the FSA to be voted down.
According to a resolution put forward by Chief Ross Perley, Neqotkuk (Tobique) First Nation in New Brunswick, “the proposed reforms potentially deleteriously impact on the self-determination, sovereignty and autonomy of First Nations in administering child and family services,” said a resolution in part.
Perley is calling on chiefs to “Direct the AFN not to approve or sign the Agreements until all First Nations have 90 days to review the final drafts of the Agreements and all supporting materials, seek amendments to the Agreements and AFN to respond to any suggested amendments to the Agreements.”
The resolution also calls for “Canada to fully implement the funding principle of predictable, stable, sustainable, needs-based funding in the form of an unconditional grant consistent with the principles of substantive equality and cultural continuity to secure long-term positive outcomes for First Nations children, families and societies.”
The AFN released an approximate breakdown of how much money each region will receive during the first five years of the $47.8 billion agreement.
At the top end, Ontario will receive $3.6 billion, and at the bottom end, Prince Edward Island will receive $15 million. The draft document notes that there is a funding review mechanism that will examine the sufficiency of funding in the first 5 years that will inform changes to the funding for the final 5 years of the agreement.
Complaint against Canada started in 2007
The pushback against the FSA started in June, ahead of the organization’s meeting in Montreal. Before the meeting, three regional chiefs who sit on the executive issued a letter to Woodhouse Nepinak.
“The AFN has exceeded its mandate in advocacy for First Nations and is now making decisions that will directly impact First Nations children and families and assuming a policy and practice oversight role without the consent of First Nations or fulfilling the duty to consult them,” said the letter signed by Bobby Cameron, chief of the Federation of Sovereign Indigenous Nations, Ghislain Picard, head of the Assembly of First Nations Quebec/Labrador and Terry Teegee, AFN regional chief in British Columbia.
“Indeed, AFN appears to be consolidating its control over child and family services and Jordan’s Principle contrary to the UN Declaration on the Rights of Indigenous Peoples and without authorization by First Nations.”
The FSA is the result of a settlement of two class action lawsuits against the federal government and a ruling from the Canadian Human Rights Tribunal that said Canada “willfully” and “recklessly” discriminated against First Nations in the child welfare system who lived on reserve.
In its compensation ruling, it ordered Canada to pay $40,000 for every child who had been apprehended. The compensation was to go to caregivers as well.
The complaint against Canada was started by the AFN and Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society (the caring society) in 2007.
Since then, she’s kept track of how the government has changed its policies on First Nations child welfare – but also the agreement Canada and the AFN wrote.
In an August 2024 “report card” on the FSA, Blackstock gave the AFN and the federal government a failing grade in several areas of the FSA draft.
One issue is that while the CHRT can make legal orders to prevent discrimination from taking place on an ongoing basis, the FSA doesn’t have that protection.
“The draft FSA expires after 10 years and provides inadequate protections against Canada reverting to its discriminatory conduct beyond year 10,” the Caring Society said in its report. “After the FSA expires, there is little clarity that First Nations children have adequate, sufficient, and enforceable safeguards to ensure Canada does not discriminate against them again.”
“Canada failed to consult with First Nations as required by United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and abide by AFN Resolution 40/2022 directing the Parties to develop options for long-term reform. Under the draft FSA, First Nations leadership cede governance of the overall agreement (including funding levels) to a confidential process without representation from all regions.”
The caring society was also critical of other key areas including secure funding across government changes, the funding level, the funding structure, as well as alternative dispute resolution, and internal First Nations governance, which all received a “D” on the report card.
In the area of FN governance, the report card says Canada will have new powers over First Nations and agencies and approval of First Nations and agency work plans.
Alphonse said this is an issue that is concerning to the TNG as well and is calling for a new process to be put in place.
“A revised process must use the current orders as a foundation and build upon the Canadian Human Rights Tribunal decisions to achieve more. The TNG will support a new process that is transparent, inclusive, collaborative, involves leadership from across this country, and has the child and family technical experts in the room.”
Alphonse told APTN he feels Blackstock should have been included in the draft agreement.
”We just want to be sure that the government doesn’t offload all its responsibility which often is the case when you’re dealing with government. We want to appoint a new negotiating team. Having Cindy Blackstock be part of that is what we would be most interested in,” Alphonse said.
“I think it was really disrespectful that the AFN didn’t include her. It’s been her whole career. If it wasn’t for her, we wouldn’t be here. To sit down and make sure all of her concerns are taken into account is high priority for us. We hold her in high regard and she should be utilized as much as we can and that’s in the best interest of everyone.”
‘A lot of issues to work through’
The national chief of the AFN was on Parliament Hill Thursday for an announcement on a water bill. Cindy Woodhouse Nepinak also addressed questions about dissent to the child welfare agreement.
“We’ve worked on amendments again yesterday to make sure we hear what the chiefs are saying so they feel comfortable moving forward with that. I know there’s lots of issues to work through on it,” Woodhouse Nepinak said.
She expects a high turnout of chiefs at next week’s special assembly.
“I know there’s lots of issues to work through on it and I know there’s always wanting to be a bit of a pause because we kind of wonder ‘is this going to be okay,’ but I look forward to the discussion next week with chiefs in assembly,” she said.
“There’s a high number that have already registered because everybody is so passionate about it.”
One of the parties who negotiated the deal along with the AFN and Canada voted to ratify the draft agreement Wednesday.
Nishawbe Aski Nation Grand Chief Alvin Fiddler acknowledged that the agreement has limitations, but provides a foundation for its communities.
“Ratifying this Agreement is just the beginning of the work we need to do, not just in NAN, but across the country. This is not the end of a process, but the beginning,” said Fiddler in the statement.
NAN was also a party involved with the complaint at the CHRT.
“We acknowledge that there are many voices across Turtle Island that have vested interests in this Agreement, and we respect them. We urge the Assemblies of Chiefs-of-Ontario and the Assembly of First Nations, as well as the First Nations Child and Family Caring Society of Canada, to support approval of the Final Agreement.”
It’s not clear how many Chiefs or their proxies will be in attendance for the Special Assembly of the AFN. It takes place Oct. 16 to 18 at the BMO Centre in Calgary. APTN will cover all 3 days of the assembly.
Meanwhile, governance is also a sticking point for Saddle Lake Cree Nation in Alberta. Its chief and council said they have concerns over the AFN speaking for its people. Three resolutions came out of a meeting of Chief and Council on Aug. 4.
The first notes: “Saddle Lake Cree Nation Treaty No. 6 hereby notify the AFN and Canada that their co-development activity will have no effect on the fiduciary relationship that exists between the Crown and Saddle Lake Cree Nation.”
The second resolution said that “The AFN is hereby notified, by this band council resolution it that it will expressly acknowledge that it does not represent Saddle Lake Cree Nation in any manner.”
The third and final resolution asks that “the AFN and Canada cease their dishonourable actions as Saddle Lake Cree Nation will never consent to altering the legal and binding, bilateral relationship set out under Treaty No. 6 between Treaty Six First Nations and the Imperial Crown in Canada.”
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