Canada won't go back to the table, so a First Nations child advocate goes back to court

Canada has told a First Nations child advocate it will not negotiate in line with Assembly of First Nations (AFN) resolutions rejecting a $47.8-billion proposal to reform the on-reserve child welfare system, according to a recently released letter.

So if the government won't go back to the table, Cindy Blackstock is going back to court.

In October and December last year, chiefs voted to renegotiate a federal offer to partially settle an 18-year-old complaint at the Canadian Human Rights Tribunal over the chronic underfunding of child and family services in their communities.

But according to a letter written by Paul Vickery, legal agent and counsel for the Department of Justice, those resolutions would expand the program in question to off-reserve funding and maintain the tribunal's jurisdiction over the program indefinitely.

And it seems that's something the government won't consider.

"Canada is not prepared to negotiate in line with resolutions that exceed both the [agreement-in-principle's] framework and the complaint on which the Tribunal made its findings of discrimination," Vickery wrote in a Jan. 14 letter to the First Nations Child and Family Caring Society.

In 2016 the tribunal ordered Canada to reform the First Nations child and family services program, which it found to be racially discriminatory. The parties signed an agreement-in-principle worth $19.8 billion over five years in 2022. It was upped in a final agreement to $47.8 billion over 10 years.

The letter is the clearest indication from the government yet that it has no intention to abide by the AFN's demands. In a  Jan. 6 letter, Vickery informed the national organization that Canada would be seeking a standalone deal with chiefs in Ontario, with no mandate to negotiate nationally.

On the same day she received Canada's latest correspondence, Caring Society executive director Blackstock filed a motion to compel Canada to restart consultations nationally.

She says the society has serious concerns that the government is breaching the Crown's duty to act honourably toward First Nations and retaliating against chiefs.

"It feels a lot like Canada is saying, 'You either agree with us or we take our toys and go home.' That kind of response to this kind of serious matter is really concerning," Blackstock said Wednesday.

"And that's why we are following the chiefs' direction and pursuing a legal remedy to force Canada to talk to First Nations across the country. It's astounding to me that we even have to bring such a motion."

But Derek Nepinak, chief of Minegoziibe Anishinabe in Manitoba and a supporter of the original agreement, says Canada's position is unsurprising. 

"That was the risk of rejecting the negotiations: that we may not be able to crack it open again," he said, calling it "short-sighted" to think otherwise.

Canada doesn't want to be involved in these systems forever, Nepinak added, and would rather see communities take back responsibility and self-determination. That's something he feels the original agreement would have done.

Outcome delayed amid political questions

Because the negotiations were legally mandated, there was never any guarantee chiefs could force Canada to reopen them, he said. While the Caring Society may or may not succeed, a legal fight could prolong the outcome by months and even years.

"Even if there is a good outcome at the human rights tribunal, to what extent is the government, a new government, going to be compelled to fund an agreement?" he said.

"They may decide to appeal. They may decide to drag this thing out for a very long time and continue the process of having our children and families put at risk."

In its rulings, the tribunal slammed the government for capping funding for prevention services while offering unlimited money to maintain kids in care. This created what's been called a perverse financial incentive for the state to scoop children from their homes and tear families apart. 

Without a reform plan, the risk is that more kids will fall through the cracks, said Nepinak.

"I think that we had an opportunity, back in 2024, back in October, to put a stopgap measure in place."

In a statement, a spokesperson for Indigenous Services Minister Patty Hajdu said the agreement would have ensured the long-term sustainability of key investments already being made to prevent children from being taken into care.

"Canada has made every effort to reach a fair, equitable, and comprehensive resolution," wrote press secretary Jennifer Kozelj.

The Chiefs of Ontario and Nishnawbe Aski Nation, two of the four tribunal parties, have asked to work with Canada on the original deal, and that's what the government has done, she continued.

Hajdu recently suggested the First Nations negotiating side is still organizing itself, which Blackstock disputed. The newly established national Children's Chiefs Commission is up and operating, Blackstock said.

"I believe strongly that this decision will land in our favour, and frankly, I think it's a real breach of good faith negotiations" by Canada, she said.

Nepinak said "the AFN is in a bit of an identity crisis" right now but he expressed hope the new commission can create a tangible way forward.

The AFN has not yet responded to a request for comment.