In early July, Ottawa agreed to spend $47.8 billion over 10 years to reform Canada’s First Nations child and family welfare system.
The agreement, which still needs to be ratified by First Nations leadership, would settle a legal battle that dates back nearly two decades. In 2007, two prominent First Nations organizations — the Assembly of First Nations and the First Nations Child & Family Caring Society — lodged a complaint with the Canadian Human Rights Tribunal alleging Ottawa discriminated against Indigenous children by underfunding their child and family services.
The tribunal ultimately agreed with the claimants, forcing Ottawa to negotiate with the parties. But now that a negotiated agreement is on the table, the Assembly of First Nations and Caring Society have parted ways on whether the agreement is one First Nations should accept.
“[The agreement] is a critical step towards rectifying past wrongs and ending discrimination under First Nations Child and Family Services,” said Cindy Woodhouse Nepinak, national chief of the Assembly of First Nations, a national advocacy organization that represents more than 600 First Nations, which backs the agreement.
But the Caring Society walked away from negotiations in December 2023, citing concerns with the government’s conduct and key terms of the proposed agreement, which would settle key parts of their lengthy legal battle.
“[The Canadian government] has broken multiple negotiated agreements in this process and breached legal orders,” said Cindy Blackstock, executive director of the society.
Since 2016, when the Canadian Human Rights Tribunal first found Canada’s funding of First Nations child and family services to be insufficient and discriminatory, the tribunal has issued more than 30 non-compliance agreements against the government for failing to end its discriminatory conduct.
“So how can we be confident that they will honour the terms of this new agreement? I’m not confident,” Blackstock said.
‘More than a cheque’
In 2016, the Canadian Human Rights Tribunal determined that Canada was providing First Nations child welfare service providers with between 25 to 50 per cent of the funding they provide to provinces for the same services, says Claire Truesdale, a partner at JFK Law LLP who specializes in Indigenous law.
One of the orders the tribunal made was that Canada reform the funding and delivery of child welfare services on reserves, Truesdale says.
In October 2023, Ottawa reached a $23.3-billion settlement with the Assembly of First Nations and a group of class-action plaintiffs to compensate First Nations children and families harmed by past discriminatory underfunding of the child welfare system.
The new $47.8-billion agreement reached in July is “about providing more funding to the agencies that [are administering child and family services] and reforming the system,” Truesdale says.
Currently, 80 per cent of First Nations are served by a child welfare system administered by the federal government, according to the Institute for Fiscal Studies and Democracy, a public finance think tank. The new agreement would enable First Nations to assume responsibility for their own child welfare systems.
“[C]ommunities know best what they need, which is why almost two-thirds of the money is going directly to communities,” said Jennifer Kozelj, press secretary for Minister of Indigenous Services Patty Hajdu, in a written statement. “Gone are the days of the Federal Government imposing one-size-fits-all solutions.”
However, many First Nations currently do not provide the kinds of child welfare services that they will be empowered to provide under the agreement. They therefore lack the personnel, training and infrastructure to do so. Ottawa will fund First Nations that decide to transition from using a federally or provincially run child welfare program to a First Nations-led program, the agreement says.
The agreement allocates funding to First Nations communities on a per capita basis, and also funds First Nation agencies specifically focused on child welfare.
In fiscal year 2024-2025, the government has committed to provide First Nations with $2,604 per person in their community, subject to a minimum of $75,000. Additionally, the government would provide First Nations child welfare agencies with $295 per person, again subject to a minimum of $75,000.
According to Blackstock, “Whatever drawbacks there are [to First Nations administering their own programs] can be overcome. But this agreement is not structured in a way that sets up First Nations for success.”
She says the funding amounts are highly unspecific and the agreement ignores detailed suggestions made by the Institute for Fiscal Studies and Democracy, which was engaged by the Assembly of First Nations to conduct a multi-phase analysis of First Nations child welfare reform.
“It doesn’t say what First Nations are actually obliged to provide. Under the [Institute for Fiscal Studies and Democracy] model, we could tell people down to the penny what their budget would look like next year,” she said.
In an interim analysis published March 2024, the institute flagged concerns with the reforms as they were drafted at the time.
“Ending the discrimination and ensuring it does not reoccur takes more than writing a cheque,” the think tank said. “It means fixing the policies, rules, terms and conditions, performance indicators, reporting requirements, and incentives that shape the decisions of actors in the system, both inside and outside of government.”
“[Indigenous Services Canada] has pulled apart a model that was designed as a holistic approach,” it adds. “Efforts have been focused on a funding amount and how it is to be divided among stakeholders, rather than considering how to end discrimination and ensure it does not reoccur.”
Ryan Tyndall, a spokesperson for Indigenous Services Canada, said in a written statement that “the agreement is designed to provide enough flexibility to First Nations to design and deliver their programs and services within their specific contexts and to address the specific needs of their children and families.”
Tyndall also noted that the agreement commits the department to providing “all its employees with cultural humility and competency training, with the intention of becoming a more responsive organization and preventing a recurrence of the discrimination that led to the complaints.”
Not locked in
Blackstock is also concerned that the agreement lacks effective accountability mechanisms.
The agreement would end the Canadian Human Rights Tribunal’s jurisdiction over the matter. In its place, it would create an alternative dispute resolution mechanism that would include a president and cultural officers who are appointed by the government.
Putting government officials into these roles “feels a bit like a fox in a henhouse,” Blackstock said.
But according to the Assembly of First Nations, removing the tribunal’s oversight and creating an alternative dispute resolution mechanism is essential to ending decades of litigation. The new mechanism also has the backing of key stakeholders, Woodhouse Nepinak says.
“First Nations legal experts supported the development of a mechanism that will hold Canada accountable for its implementation of the program and which is accessible by First Nations and agencies themselves,” she said.
Blackstock also worries that Ottawa could avoid making good on its commitment in future years.
“[T]his is really a one-year funding agreement, with the potential to renew over 10,” said Blackstock. The agreement has “no serious provisions about what happens in year 11 to safeguard kids from discrimination.”
The agreement is also subject to parliamentary appropriations. “So this money isn’t locked in, every year there will be a vote in parliament,” Blackstock said.
However, if parliament fails to appropriate adequate funding, the agreement does permit First Nations to seek a court order and reopen the complaint at the Canadian Human Rights Tribunal.
For the Institute for Fiscal Studies and Democracy, it is clear that funding is just one piece of the puzzle.
“True reform of the [First Nations Child and Family Services] system will take years. It’s time to stop pretending that it will be fixed by an amount of money,” its analysis says.
“Canada has not responded with the requisite changes to structure, funding, and accountability in FNCFS to uphold the [Tribunal’s] orders. It is likely that First Nations and their service providers will find themselves back before the Tribunal on the same matters unless more meaningful changes are made.”
Editor’s Note: This agreement has been updated to incorporate written statements from Indigenous Services Canada spokesperson Ryan Tyndall, which were received after the piece was first published.
