First Nations groups concerned after delay in $20B child-welfare reform talks

The federal government says it's willing to speed up negotiations to reform the on-reserve child-welfare system, after First Nations groups blamed Ottawa for a months-long "standstill," raising concerns a final deal could be at risk.

The high-stakes talks were "subject to a pause," "at a standstill," "essentially stalled" and "treading water" since April 2023, wrote four First Nations advocacy organizations in separate letters to the Canadian Human Rights Tribunal on Oct. 10.

In those six months, the Liberal cabinet failed to provide federal negotiators with the new mandate they needed to finish the nearly $20-billion deal, sparking what the letters described as serious and increasing concerns.

In the meantime, retired senator Murray Sinclair withdrew from his official role mediating disputes, while one organization, the First Nations Child and Family Caring Society, left the process to restart litigation.

The federal team finally got its instructions in November, said Caring Society executive director Cindy Blackstock, but she added little progress was made since, while her organization remains troubled by the pace.

"Children only have one childhood, and when they have serious needs that need to be remedied, we can't take six, seven months," she said.

In its letter, Canada suggested the Caring Society and Assembly of First Nations (AFN) were responsible for the slowed pace because of their proposed "joint path forward" to finalize the agreement. 

This proposal departed from the original agreement-in-principle, meaning cabinet had to provide a new mandate to negotiate, Canada's lawyer wrote. 

Indigenous Services Minister Patty Hajdu was not made available for an interview, but in a statement a spokesperson said the talks are resuming.

"Our negotiators are at the table doing their crucial work. They are meeting again with all parties involved this week," wrote communications director Simon Ross. 

"We are fully invested in coming to a settlement and we are ready to increase the pace of negotiations to do so."

In the agreement-in-principle announced in December 2021, Canada committed $19.8 billion toward systemic, long-term reform of First Nations child and family services.

This formed roughly half of a proposed umbrella settlement, worth more than $40 billion, to finally resolve the human rights complaint Blackstock and the AFN filed in 2007.

The other part of the settlement — $23.3 billion to compensate victims of the system which the tribunal found in 2016 to be racially discriminatory — was approved this year.

Mediator withdraws

On reform, Canada's letter to the tribunal earned a sharp rebuke from the Caring Society, which branded Canada's response anemic and inadequate, another sign the talks struggled. 

The parties were under "the illusion of progress" and "not currently actively negotiating," the society wrote in October, saying meaningful negotiations will be impossible if Canada needs more than half a year to discuss new proposals.

For its part, the AFN said the proposed path forward was designed to reflect the wishes of First Nations chiefs, expressed in a resolution adopted in December 2022.

"While the AFN understood that significant delays could be expected or that the mandate itself could be jeopardized, it has now been a half a year since the Joint Path Forward was proposed," wrote AFN general counsel Stuart Wuttke.

Meanwhile, the Caring Society became so concerned by Ottawa's alleged failure to honour Jordan's Principle, which ensures First Nations youth get timely access to essential health and social services, that it reignited litigation at the tribunal.

"What we're seeing is this chronic non-compliance, chronic resistance, in ways that are really harming children," Blackstock said.

The agreement-in-principle says disputes will be resolved through a mediation led by an "eminent First Nations person," which means the society has left that process, casting uncertainty on its role going forward, Blackstock said.

Her group took the position that the negotiations were weakened when Sinclair, who was serving as the eminent First Nations person, withdrew on Sept. 29.

Nevertheless, she said there remains a strong possibility a deal will get done.

"But it needs to be done in a very thoughtful way that puts children at the centre," she said.

It's unclear why Sinclair withdrew. He did not reply to an emailed request for comment. Canada said in December it was seeking someone to fill the post.

Cash reportedly withheld

In its letter, Nishnawbe Aski Nation (NAN), which represents 49 First Nations in northern Ontario, expressed concern the delay jeopardized the possibility of concluding a final settlement agreement.

"NAN is seriously concerned about the consequences of this delay for the First Nation children, youth, and families who continue to suffer discrimination," wrote lawyer Christopher Rapson of Falconers LLP.

The delay already impacted some remote First Nations because Ottawa won't release cash committed in the draft agreement until the final is signed, the Chiefs of Ontario (COO) provincial umbrella organization said.

"This has meant the delay of needed remoteness funding, and therefore ongoing inequality as a result of high costs in remote [areas]," wrote Maggie Wente, partner with OKT Law.

CBC Indigenous contacted the AFN, COO and NAN with interview requests but spokespeople were not made available.