Law firm warns $47.8B First Nations child welfare reforms could be lost with election

Assembly of First Nations National Chief Cindy Woodhouse Nepinak attends the Special Chiefs Assembly in Ottawa, on Wednesday, Dec. 4, 2024. THE CANADIAN PRESS/Spencer Colby

A legal review commissioned by the Assembly of First Nations is warning a $47.8-billion deal to reform the First Nations child welfare system could be moot if there's a change in government in the upcoming year.

The agreement was struck in July after decades of advocacy and litigation from First Nations and experts seeking to redress discrimination against First Nations children who were torn from their families and placed in foster care.

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The Canadian Human Rights Tribunal had ordered Canada to come to an agreement with First Nations.

When chiefs voted against the proposed deal at a special assembly in October, it left the AFN scrambling to figure out what happens next. Indigenous Services Minister Patty Hajdu has repeatedly expressed her disappointment with the deal not moving forward, and said Tuesday her government is looking at its options.

Fasken Martineau DuMoulin LLP, which carried out the legal review for AFN, warns there is no guarantee a new government would be willing to negotiate or make similar commitments to what the governing Liberals have proposed.

"However, were the final settlement agreement (or a revised version) to be approved and enter into force, it would constitute a legally binding and enforceable contract, which could not be modified by a new government absent the consent of the parties or judicial intervention and would therefore be binding on a future government," the review, dated Nov. 15, reads.

"This means that, until such time as a binding agreement is entered into, a new government will not be bound by the negotiations which have taken place, to date, with Canada — including the $47.8 billion commitment," it adds.

The Conservatives, who have a wide lead in the polls, did not respond to repeated requests for comment about whether they would negotiate with First Nations or whether they would commit to meeting the $47.8-billion figure.

The Canadian Human Rights Tribunal said Canada’s underfunding of child welfare services was discriminatory because it meant kids living on reserve were given fewer services than those living off reserves, and tasked Canada with reaching an agreement with First Nations to reform the system.

The agreement was meant to cover 10 years of funding for First Nations to take control of their own child welfare services from the federal government.

Chiefs and service providers critiqued the deal for months, saying it didn’t go far enough to ensure an end to the discrimination. They also blasted the federal government for what they say is a failure to consult with First Nations in negotiations, and for the exclusion of the First Nations Child and Family Caring Society, which helped launched the initial human rights complaint.

In October at a special chiefs assembly in Calgary, the deal was struck down through two resolutions.

The Assembly of First Nations sought a legal review of those resolutions and the potential consequences of the deal not being accepted. A former national chief of the organization, Perry Bellegarde, works as a special adviser at Fasken Martineau DuMoulin LLP. The firm also represented the Assembly of First Nations in the class-action portion of the human rights complaint against Canada.

Cindy Blackstock, who heads the First Nations Child and Family Caring Society and helped launched the initial human rights complaint, said the $47.8 billion proposed was never secure, because the funding was subject to parliamentary appropriation.

"This was about maybe $4.7 billion in the first year, and then see what happens after that," she said.

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She said the Canadian Human Rights Tribunal, along with Canada's own estimates, peg the costs of reform at around $45 billion plus actuals, "so we're somewhere in that neighbourhood anyway."

"And those are legal orders that are binding on any government," she said.

Chief Joe Miskokomon of Chippewas of the Thames First Nation in southwestern Ontario, who was a vocal supporter of the deal that was struck down, said it may be irretrievable, and the alternative would be going back to the tribunal and hoping they receive a judgment that is as "expansive" as what is currently in front of them.

Or, he said, the courts could find Canada is only obligated to pay for the minimum required to rectify the issue, taking away housing funds and other benefits the deal allows for.

"Are we to live in a fantasy world where there is a bottomless pit, that the well never goes dry? … It's pretty evident by the leader of the Conservative party that he has an agenda that does not mirror the current government's agenda," he said.

"Whatever government comes in, and whatever necktie they wear, we must impress upon them that there are still these human rights tribunal orders that must be met, and we would be insistent that they be met at least to the minimum standard of where we are right now through the negotiations through the draft final agreement. Now, does that mean to say that they would agree? Of course not."

This report by The Canadian Press was first published Dec. 12, 2024.

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