The Current - The push for a new deal on First Nations child welfare

Episode Date: November 14, 2024

Last month the Assembly of First Nations voted down a draft agreement with the federal government on child welfare reform, worth $47.8 billion. Matt Galloway talks to Chief Derek Nepinak, who says his community needed this agreement; and advocate Cindy Blackstock, who says the goal isn’t a perfect deal, but a just one.

In 2017, it felt like drugs were everywhere in the news, so I started a podcast called On Drugs. We covered a lot of ground over two seasons, but there are still so many more stories to tell. I'm Jeff Turner, and I'm back with Season 3 of On Drugs. And this time, it's going to get personal. I don't know who Sober Jeff is. I don't even know if I like that guy.

On Drugs is available now wherever you get your podcasts. This is a CBC Podcast. Hello, I'm Matt Galloway and this is The Current Podcast. Last year, we had more First Nations children removed from their communities and families than at any other time in Canadian history. That's Assembly of First Nations National Chief Cindy Woodhouse-Nepanak speaking last month in Calgary to a room full of First Nations leaders from across this country. They were voting on whether to accept a draft agreement with the federal government on child welfare reform. The agreement was worth almost $48 billion and aimed to address decades of discriminatory funding underfunding of Indigenous child welfare services. Ashley Bach was one of the people who

spoke at the Assembly First Nations meeting. Ashley was placed with a foster family at birth and had no connection to her Indigenous family. She was in favour of the deal. I was able to do a freedom of information request to the BC government to access my foster care files. I learned that my biological grandmother, a residential school survivor, had requested to be kept in contact with me. That request was never fulfilled and she passed away shortly after my adoption was finalized. My story really hurts me to share, but I'm not sharing it for sympathy. I'm sharing it because I know that you guys have the opportunity before you today to prevent such stories from happening to other First Nations children in care.

Those First Nations children in care right now, or at risk of being in care, need action. They need it now, and they can't wait decades again for a perfect settlement agreement. By then, they won't wait decades again for a perfect settlement agreement. By then, they won't be kids anymore. They'll be like me, and they'll already have been impacted by the system. In the end, the deal was voted down. AFN National Chief Cindy Woodhouse-Nepanak responded this way. Since the results, many have asked me, what are we going to do now?

We've been getting calls all evening, all morning. Our children are watching and continue to wait patiently. And we can't help but think that the kids and families lost something with yesterday's votes, because the status quo will prevail. While disappointed with the results of the vote, we know our assembly has come a long way. We have had a difficult discussion, but we are here together having substantive dialogue about real issues. And we remain united by a common belief that First Nations families should be empowered to look after their own children. Carl Sillem is the council chairperson for the Squamish Nation in British Columbia.

He put forward the motion to reject the deal and explained his reasons in a recent podcast. The chiefs and the leadership was really focused on, is this agreement going to help end the discrimination, yes or no? And the contents of that agreement spoke to, I think, reasonably, the chiefs and proxies and leadership said, I don't think that this is a good agreement that's going to help us end the discrimination against our children. And it's not a good agreement to sign with Canada at this point. There's room for improvement, and we're committed to improving that agreement as long as Canada is willing to as well. Chief Derek Nepenak represents the Minigozibe Anishinaabe Nation in Manitoba. He supported this deal and joins us now. Chief Nepenak, good morning to you.

Good morning, Matt. Who were you thinking about as you voted to support this deal? Well, because I'm a chief in the community, I'm thinking about the grandmothers back home who have for years been advocating for a more localized response to families and children in need. I'm thinking about the advocates in the community who are stepping up to help with the healing process in our community. And of course, most of all, I'm thinking about our little ones who deserve to have that opportunity to live in a safe place, to be with mom and dad, and to not be cast into the institution of child and family services where they become disconnected and lose their identity very quickly. That's who I was thinking about first and foremost.

And so in that context, tell me more about why you supported this deal. Well, it's important to observe the AFN for what it is. It is a forum for conversation, it is a forum for national-based decision-making, but that has a trickle-down effect at the community. And at the community. And at the community, we're already implementing some of the budgetary opportunities within the Canadian Human Rights Tribunal decision, factoring in forecasting budgets that were post-settlement agreement to make sure that we're ramping up our ability to provide quality services to children and families at the community.

That's why I was in support of it. We've already been implementing for the past two years the prevention funding, as well as the family representative funding that's there. And with that funding, we're able to hire people to come in and actually start building wraparound services at a local level. And that's why I was behind it. It's very practical, a very practical approach to helping families. And that's why I was behind it. It's very practical, a very practical approach to helping families. And that's why I was behind this agreement. How do you understand the arguments of those who voted against the deal who say this is not good enough, that despite the dollar figure, despite the time spent on this, that this is not the finished article, that people feel cut out

by the process, but also that there can be more that can be achieved? but also that there can be more that can be achieved? I think that the way I look at it is that in a compromise negotiation, there's always going to be, you know, something that arrives that's less than perfect. Okay, so we do the best we can with what we have. And at some point, we have to move beyond the status quo. And the status quo has been resulting in tragic numbers of children, not only in care, but beyond that. I think that when we look at what happened,

I think we look at communities that perhaps are not implementing the services. Maybe they don't have the capacity to implement the services at this time because of the budgetary opportunities that are there. It shouldn't be a reason to say no, because many of us have begun moving forward with implementing these budgets and building the capacity locally. Just because a chief may be unaware that they have budgets in place and they have the opportunity to start building local services, that's not a reason to say no, because the status quo is not an acceptable place for us to be. Do you understand where they're coming from in saying no? I understand that there's oftentimes what I call the low-hanging fruit of politics, and that is you can say, oh, we weren't consulted enough, or oh, we didn't know about this deal. Oh, you know, we have sovereignty and we have

inherent rights, and I agree with all of those angles. But to me, there's a very practical reason why we needed to accept the settlement. And that's what my focus was. What concerns you the most about waiting for the process to resolve itself to get a new deal? itself to get a new deal? My concern is that any negotiated type of agreement with the federal government requires a mandate from, you know, the cabinet and from the prime minister's office. And from what I can tell is that it's not likely that we're going to see a new mandate to negotiate, you know, arrive at the Assembly of First Nations prior to Christmas and even into the New Year. Why do you believe that is, if you don't mind me asking?

I think that the government of the day is really focusing on whether it can survive into the New Year. I think that there's a lot of pressure we see nationally for perhaps changes within the Liberal Caucus, maybe even an election on the horizon. And if that does happen, this window of opportunity closes, and it's difficult to see whether or not any change in government would lead to a new mandate to negotiate the settlement. And to me, we're very, very dangerously close to the uncertainty that this situation has brought.

Dangerously close. I mean, you use that word deliberately. Yeah, absolutely. I'm concerned that if there is a regime change in Ottawa, such as, you know, for example, if the Conservatives come in under Polyev and the Liberals are pushed aside, that I don't think that this $48 billion settlement agreement is going to be at the top of Mr. Polyev's list

of things to do out of the gate. What would lead you to believe that? Well, it's too late to alleviate that now. I think we're facing the uncertainty of what a change in government might bring. And I'm concerned that there isn't going to be a mandate to try to negotiate. I think if it does come forward, it's going to be very, very marginal. It's going to be a very slight adjustment to what's already been decided, if anything. And that, you know, we didn't necessarily need to wait to take that time. We could have settled this last month and we could be, you know, creating certainty around what we're going to do for the future of children and families at the community level. Have you heard anything from the Conservatives?

Again, leading in polls, the suggestion is by many that they're a government in waiting. Things could change, obviously, when an election rolls around. But have you heard anything from the Conservatives that would suggest that this would not be, to your point, at the top of their agenda? Well, Matt, I've been a chief for a long time. I was the Grand Chief in Manitoba during the Stephen Harper years, and I've seen and lived through the austerity measures that are put in place impacting Indigenous communities and organizations, and I've seen it firsthand. So I have experience in seeing how Conservative governments have dealt with Indigenous issues and the cutting back of services and programs that are vitally needed. So I don't need to look too far ahead to know what I experienced in the past.

And so if we end by going back to that first question that I asked, which is who you were thinking about as you voted to support this deal, who are you most concerned about if a new deal is not signed? Well, I'm most concerned about our ability at the community level to reclaim the space for child and family wellness. We're working hard to make that happen now, rebuilding inherent rights, rebuilding the jurisdiction of families to take care of their young ones, where and when they see fit. And at the community level, I'm most worried about the children who are stuck in these institutions and these systems, these provincially mandated agencies and organizations that tell us how we're supposed to raise our children.

I'm most concerned about them. And that's who I was thinking about when I was voting for the agreement. We can't stand in the status quo. I think it's too tragic. and the status quo, I think it's too tragic. There's a lot of tragedy happening every day in jurisdictions like Manitoba, where it's historically been known as the epicenter for child apprehension in North America. Chief Nepenak, good to have you here. I appreciate your time this morning. Thank you.

Thank you. Chief Derek Nepenak represents the Minigozibi Anishinaabe Nation in Manitoba. He was in Regina this morning. In 2017, it felt like drugs were everywhere in the news. So I started a podcast called On Drugs. We covered a lot of ground over two seasons, but there are still so many more stories to tell. I'm Jeff Turner, and I'm back with season three of On Drugs.

And this time, it's going to get personal. I don't know who Sober Jeff is. I don't even know if I like that guy. On Drugs is available now wherever you get your podcasts. Cindy Blackstock is executive director of the First Nations Child and Family Caring Society. She helped launch the discrimination case against the federal government that led to this deal, and she has been listening in. Cindy, good morning to you. Good morning. Let me begin with the same question that I've been asking this morning, which is, who were you thinking of when you recommended that this deal be rejected?

I think it's the very same children that Chief Niponak was thinking about. It's a decision about how do we ensure for all generations to come that First Nations children are lit free of the hardship of Canada's discrimination and communities get a chance to recover from the residential schools. Keep in mind, Matt, this was a 10-year agreement with nothing to follow that was binding on Canada. And it was already in year one, so we're really at nine years. And then it was keep your fingers crossed for the generations to follow after that. And so given that, why did you feel that the agreement needed to be voted down? Well, you know, when you look at the marquee headline of $47.8 billion, you know, the question becomes, well, why wouldn't you vote for it, right? But when you looked at the fine print and you did greater scrutiny on the agreement, you realize that none of that money was really that secure.

cure. In fact, there's a clause in the agreement that says any and all the funding is subject to undefined approval processes by the government of Canada. So Canada could come up with something that says it was a required approval process and it could put much of that money at risk. The other thing is, is that it's not a zero-sum game. We have existing orders from the Canadian Human Rights Tribunal for the types of things that Chief Niponak was already talking about for prevention for post-majority services, which are so vitally needed in the community. So what the agreement would have done is taken away the ability

to rely on those legal orders and replaced it with an agreement that didn't have strong provisions to ensure the money would be there, that it would be there beyond the 10 years and that it could be enforced with Canada if they backslid. The headline is partially around this agreement and the dollar figure is a part of that headline. $48 billion is a lot of money. It is. What would you say to people who say that rejecting this is a case of perfection being the enemy of good? Yeah, I would say no, it's not about that. It's about achieving non-discrimination for kids.

That's literally what this is about. That's what the requirements are, the Canadian Human Rights Act. And, you know, we appreciate that nothing will ever, quote, be perfect, but it has to achieve that legal baseline and for all generations to follow. You know, just last week, we lost Marie Sinclair. And the top Truth and Reconciliation Commission call to action was ending this kind of discrimination in child and family services and reforming the system so it better serves kids. And Jordan's principle, which is another part of this Canadian Human Rights Act case, was the third one. And Canada is actively breaching Jordan's principle at the same time as asking chiefs to really accept this agreement and get rid of

the tribunal. The tribunal has been the only way we've been able to enforce Canada to really make steps to better children's lives. And it's a big gamble giving up the sure thing for something that might happen. But there's provisions in the agreement where Canada has wide discretion to say, well, we don't really want to do this anymore. In the absence of that deal, though, as you heard from the chief, he says the status quo is not satisfactory, that it's tragic right now, that communities can't wait for this money. What would you say to the members of those communities who say that a deal is needed now

and the money that would flow from a deal like that is needed now? Right. So when we did the calculations with the Canadian Human Rights Tribunal orders, it came to, based on the Department of Indian Affairs' own figures, to about the equivalent of $45 billion over 10 years plus actual costs for things like actuals, etc. So it was roughly in the same ballpark. I don't see it as a significant difference between what was advertised and what is already provided for on legally binding orders, other than legally binding orders, in my view, are much more reliable, particularly if there is a change in government. And it's not to me a question of whether the conservatives are in power

or liberals in power. The issue is that children have a right to be free of discrimination regardless of who's in power. I'll come back to that in a moment. But in the meantime, back to the chief's concern, that in the absence of that agreement, the status quo isn't satisfactory. Again, what is the message to the people who would say this money is overdue and waiting any longer is not, I'll use that word again, is not satisfactory, that that doesn't meet the bar? Well, I'd say two things. One is, first of all, like we talked about just a moment ago, we're not sure that money was actually in the can. I mean, if it was there, why didn't Canada put it into a trust? It was subject to this annual decision making.

It was subject to this annual decision making. And then the third thing is that the chiefs made on the 18th two very clear resolutions to take steps forward to really put this back on the trail, to plug some of those loopholes that Canada had in the agreement that really resulted in an agreement that would take it below the standard of the Canadian Human Rights Tribunal and ensure success for First Nations children beyond year nine. We owe it to the residential school survivors to make sure all children for all generations are protected from discrimination. You and I have spoken about this issue a number of times over the many years. I just wonder, what kind of message do you think turning down a deal like this sends to Ottawa? I think what it says to Ottawa that, you know, you have to, you can't contract out of your human rights obligations and you can't contract out of your responsibilities

to ensure that all First Nations children, regardless of the conditions of the community they're living in, are able to live free of discrimination. I'm hoping that that's a message from Canada. You know, one of the things that doesn't get talked about a lot in this thing is the governance that was proposed under this final settlement agreement, which is that it would go to a committee that operates completely secretly, and they would govern this whole agreement and the money over the 10-year period with no real accountability back to anyone. That type of governance process is not something that we feel comfortable when decisions are being

made on behalf of First Nations children across 633 different communities. It ought to be transparent, it ought to be accountable, so that we know where the money is making the best difference for children, and that we can recalibrate, right? Because we may be, you know, starting a program that may not work, and we want to be able to shift course to make sure that it's more effective, if that's the case. What are the options that you have now in this moment to force a better deal? I mean, are there conversations that are happening now to get a better agreement? Oh, yeah. There's not only conversations, there's work that's happening to implement those resolutions from the chiefs. And the chiefs have decided that they really want to create a

chief's commission to oversee the whole thing and make sure that this is done in a way that keeps kids at the center and sets up all First Nations children across Canada for success. And I think that they're going to be able to do that. It's not going to take much more time to do this. We've already done so much work on this that we have a lot to build on. And we have experts across the country and amazing leadership who, you know, have really dedicated themselves to understanding what's happening to with their kids and their communities and are working with their experts to propose a better solution. And if the federal government falls and the liberals are swept out of power, and for

example, as the polls reflect, the conservatives become the government, Chief Nepenak was concerned. I mean, he said he's been around long enough that he has seen the effects of austerity before. Are you confident that you will have a partner at the table? Well, if we don't have a partner at the table, we take them to the Canadian Human Rights Tribunal. I mean, that's the reality, Matt, is that this is not just a negotiation where that's the only course. This is Canada trying to negotiate a conclusion to a legal proceeding where it's already been found responsible for egregiously discriminating against First Nations children in ways that they lost their childhoods and they lost their lives. So if they don't agree to negotiate something,

then the fallback is they will see you in court. Having reached what seemed to some people to be an agreement, I just wonder finally, and again, I ask you this as somebody who has been a champion for the rights of Indigenous children for years and years now, is your optimism still sound? Do you believe that you'll be able to get to that step beyond the step that was rejected, that you will be able to get closer to that idea of perfection with a new deal, with a new arrangement? It's not perfection. It's to non-discrimination. That's what we need to get to.

And that's a floor, not a ceiling, by the way. And I feel entirely confident we can get there i've just met so many amazing first nations leaders and experts on the ground youth in and from care uh and families who can be part of this journey and we have the structures in place to be able to take this across the finish line in fact you might remember that there was a 20 billion dollar deal on compensation and uh they had made an agreement with Canada, and it turned out in fine print that it would have literally taken checks away from children in care who are already legally entitled to compensation, taken it away from them,

and given it to other people. Well, that's not justice. And it turned out that we had to oppose that. And the tribunal agreed that you can't take away compensation from people who are already egregiously hurt just because you want to reach an agreement with Canada. And we were able to get another $3.4 billion on the table to make sure that those kids are taken care of. And that was with the direction and support of the leadership. So we've done this before. It's always good to talk to you. Thank you very much. Thank you very much. Cindy Blackstock is Executive Director of the First

Nation's Child and Family Caring Society. For more CBC podcasts, go to cbc.ca slash podcasts.