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 thereB次元官网网址檚 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.
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.
B次元官网网址淗owever, 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,B次元官网网址� the review, dated Nov. 15, reads.
B次元官网网址淭his 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 B次元官网网址� including the $47.8 billion commitment,B次元官网网址� 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 CanadaB次元官网网址檚 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 didnB次元官网网址檛 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.
B次元官网网址淭his was about maybe $4.7 billion in the first year, and then see what happens after that,B次元官网网址� she said.
She said the Canadian Human Rights Tribunal, along with CanadaB次元官网网址檚 own estimates, peg the costs of reform at around $45 billion plus actuals, B次元官网网址渟o weB次元官网网址檙e somewhere in that neighbourhood anyway.B次元官网网址�
B次元官网网址淎nd those are legal orders that are binding on any government,B次元官网网址� 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 B次元官网网址渆xpansiveB次元官网网址� 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.
B次元官网网址淎re we to live in a fantasy world where there is a bottomless pit, that the well never goes dry? B次元官网网址� ItB次元官网网址檚 pretty evident by the leader of the Conservative party that he has an agenda that does not mirror the current governmentB次元官网网址檚 agenda,B次元官网网址� he said.
B次元官网网址淲hatever 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.B次元官网网址�
This report by The Canadian Press was first published Dec. 12, 2024.
Alessia Passafiume, The Canadian Press
