The Decibel - Why the AFN rejected a $47.8-billion child welfare deal

Episode Date: October 23, 2024

Last week, the Assembly of First Nations voted to reject a $47.8-billion child welfare deal with the federal government. The agreement would have funded long-term reforms to child welfare for First Nations children on reserve. Chief Cindy Woodhouse Nepinak, the AFN National Chief, urged the chiefs to pass the deal so that it would be in place before the next federal election.Dr. Cindy Blackstock is a member of the Gitxsan First Nation and the Executive Director of the First Nations Child and Family Caring Society. She’s on the show to talk about how this deal was more than a decade in the making and why she and others say it fell short.Questions? Comments? Ideas? Email us at [e-mail]

Last week, the Assembly of First Nations Chiefs voted down a landmark $47.8 billion child welfare deal with the federal government. It's the latest development in a years-long effort to secure compensation and finance institutional reform. And though this specific deal was voted down, the issue of child welfare reform persists. Well, Canada has a long history of separating First Nations children from their families using discrimination, first through residential schools, then through mass removals

through something called the Sixties Scoop, where they would literally take buses into communities and remove all the kids and adopt them out primarily to non-Indigenous families. That's Dr. Cindy Blackstock, a member of the Gitxsan First Nation and the executive director of the First Nation's Child and Family Caring Society. She's worked in child welfare and Indigenous rights for over 30 years. She's also a professor at McGill University's School of Social Work. Dr. Blackstock helped bring forward a complaint against the Canadian government back in 2007,

when the Caring Society, along with the AFN, took the government to the Human Rights Tribunal to hold it accountable for providing less funding for child welfare to First Nations children on reserves. In 2016, the tribunal ruled in their favor, and Canada was compelled to reach an agreement to reform the system. The federal government finally proposed the $47.8 billion deal in July. And although the AFN rejected it, work is already beginning on a new one. So today, Dr. Cindy Blackstock is here to talk about how this deal came to be, and why she, and others, say it fell short. I'm Maina Karaman-Wilms, and this is The Decibel from The Globe and Mail. Cindy, thank you so much for taking the time to be here.

Oh, thanks for having me. Before we get into the arguments in favor and against when it comes to this deal, which we're going to be talking about, let's talk about what was actually in this proposal. This is a $47.8 billion proposal. What exactly was that money supposed to do? So what that money was supposed to do is end Canada's discrimination in First Nations child and family services. So others would know that as child welfare. And this arises out of an 18-year-old and ongoing legal case where Canada was found responsible for discriminating against First Nations children by seriously underfunding child welfare services in a way that was driving

First Nations children into care at dramatic over-representation rates that in fact exceeded those of residential schools. And if we can be specific here, when we're talking about that money, where exactly would that money have gone then in order to address this issue? Right. It would have gone to a variety of places. It would have gone to First Nations to start delivering prevention services. A shortcoming, though, was there was no capacity built in there to ensure those nations who wanted to deliver those services were ready and able to do so in all cases. It would have gone to First Nations child welfare agencies

that have been running for 50 years, and they deliver frontline services to children and families that are under the law, child welfare laws. And then it would have also gone to provinces. It would have gone to Canada. Canada would have been paying itself back. I think that's a bit curious. Like the government of Canada.

Yeah, exactly. It pays money and then it takes it back. We don't know how much. And then the parties of the agreement would have also received some funds, that being the Assembly of First Nations, Chiefs of Ontario, and the Shnabiaski Nation. The agreement provides for that anyway. Okay. And we are going to talk a little bit more about the agreement itself, but I think maybe we

should just talk about some very basic context here. When we're talking about the federal government discriminating against Indigenous children, what exactly are we referring to here? Yeah. Since Confederation, Vinika, the federal government has funded public services for First Nations folks, primarily on reserve, while the provinces fund it for everybody else. And throughout that long history, they've underfunded every public service. So you can imagine being a parent, having a child, and you're getting less because of who your child is, something you can't change. In this case, they were providing about 70 cents on the dollar to try and keep families together than for non-Indigenous families. And

that doesn't take account of the multi-generational harms of residential schools. So there were serious harms that could have been addressed as early as 2000, and they weren't. And that launched us into the human rights case. And when you say 70 cents on the dollar, so children off reserve are getting essentially kind of the full dollar of funding here, but children on reserve would only get 70 cents than an equivalent. That's right.

And even though those kids on reserve had higher trauma due to Canada's discrimination. I believe when we look at the TRC, the Truth and Reconciliation Commission, and their calls to action, I believe looking at child welfare is actually a pretty high priority on that, isn't it? Oh, yeah, absolutely. You know, when you think about the survivors, they told their truths through their tears, so their grandchildren didn't have to go through it. So ending this discrimination is the top thing that the survivors wanted. The top six deal with the inequalities in education, health care, Jordan's principle, which is also part of this case, and of course, because the over-representation rate right now is that a First Nations child is about 19 times more likely to be in foster care than other kids.

19 times more likely. Yeah. And it's driven by all that trauma and the lack of services to be able to address that. And just like when you're dealing with family crises, if you get in there early with help, then things get back on track. But if you don't get in there early, then the trauma just starts to build and deepen. And sadly, that's what we've seen in a long history. Cindy, you mentioned Jordan's principle. Can you just very briefly remind us what that is? Yeah. Well, for your listeners, this was recorded on Jordan's birthday, October 22nd. And Jordan River Anderson was a little boy from Norway House Cree Nation. And he was in hospital for medical reasons. But around the age of two, he should have been

discharged and put into a family home. But because he's First Nations, Canada said, well, yeah, I guess we got to pay for some of it because he is a First Nations kid. And so under the Indian Act, we got to pay something. But the province, well, you should be picking up the tab. So Canada and Manitoba argued over his at-home care costs. They would have been paid if he was non-Indigenous. But they argued for over two and a half years, and the little guy fell into a coma and died in a hospital, never having spent a day in a family home, just because he's First Nations. And I just want to let your listeners know that none of this makes economic sense. Cheaping out on kids doesn't make economic sense. It would have been cheaper to put Jordan in a family home with supports than to keep him in

a hospital, you know, and also much better for Jordan to be in a family situation. So Jordan's principles named after him. And it's to make sure First Nations children get the health, social and education supports they need when they need them. Okay, Cindy, let's talk about this deal and how it actually came to be. I know that you were part of the group that took the federal government to the Human Rights Tribunal back in 2007. Can you explain why you wanted to take that action at that time? Yeah, we had already worked on two reports with Canada showing these inequalities, but importantly, coming up with economic and evidence-based solutions to fix this discrimination. Canada didn't do it. And that's why we had to do something. During the time

when we were sitting at the table, Menaka, the number of First Nations children in foster care grew exponentially. And the chiefs and the AFN together, along with the Caring Society, said enough. And we filed that human rights case. And honestly, back in 2007, I thought, well, maybe that'll wake them up and they'll do the right thing for kids. But it didn't. They fought it tooth and nail. And it wasn't until 2016 that we eventually got the ruling for the Canadian Human Rights Tribunal that found Canada was discriminating and ordered them to stop. But Canada didn't do it. Even though the Truth and Reconciliation Commission recommendation, number one call to action, as you know,

came up the year before and the Canadian government accepted it. So we've had now 20 plus non-compliance and procedural orders. And what non-compliance means is basically Canada was breaching the order. It wasn't doing what it needed to for kids. And so we had to take them back to court to enforce that order. Okay, so that's how we got here. And now this deal that was rejected last week, Cindy, how did that come to be? So eventually in about 2020, the ministers finally agreed that yes, the discrimination was ongoing. And that was a real breakthrough and a breath of fresh air. So they said, well, how about

if we try to agree to something that would stop discrimination, and then we'll go back together to the tribunal? Well, I'm all game for that. If they're actually going to agree to something and make things better for kids, then let's try it. The Caring Society, AFN, Chiefs of Ontario and the Shabby Asking Nation, we all sat around in good faith with Canada. It wasn't too long till Canada breached that agreement under Jordan's principle. And that breach created situations where children were being seriously, seriously harmed. And in fact, since January of this year, we've had three child deaths linked to Canada's non-compliance. In that agreement, it said, well, we'll negotiate with you. Canada will negotiate with you, but you can't bring

non-compliance orders against us anymore. Well, we saw the harms to kids and we had to step outside of that. We said, look, we have to stand up for the kids. They have to be our top priority. So we're stepping outside of this agreement to bring this non-compliance order. The rest of the parties, AFN, Chiefs of Ontario, and the Shabby Asking Nation decided to stay in that room with Canada. And then they released this agreement. I also want to ask you about a settlement agreement that happened last year. Canada approved a $23.3 billion class action settlement for children who were harmed by Canada's child welfare policies. I just want to clarify, is that settlement, is that going to be affected by the rejection of

last week's deal? No, they're completely separate processes. And it kind of broke my heart as I was watching the representative plaintiffs for the class action. That's something that they were at the assembly, and they were worried that their class action payments would be affected by what the chiefs were voting on. Those are completely separate things, and I'm hoping that their legal counsel was able to clarify with them so that they had some peace. We'll be right back. So this agreement, this was a deal for $47.8 billion. It did not

pass last week. And Cindy, you were not in favor of this deal being accepted. So what were some of the ways in your mind that it fell short? It was advertised as a $47.8 billion deal over 10 years. But we need to appreciate that the tribunal orders are already achieved substantial gains in the billions of dollars. So the margin of difference economically between what we had secured in legal orders versus what was in this deal was not significant in my view, based on what we know. Number two, every year it allowed for Canada to review and determine how

much money they were actually going to provide of that $47 billion based on whatever undefined approval process they have. That's a red flag. And then the third thing is it was only for another nine years. And there was no way of preventing the discrimination after that. And then on top of that, like I really believe in accountability and transparency when we're dealing with other people's children. This deal would have asked the First Nations leadership to approve the deal. And then it all goes to a secret governance process where there's a confidential governance group that makes all these decisions on all behalf

of all First Nations kids across the country without any accountability to First Nations, without any clear inclusion of First Nations experts on the ground, but doing this important work with families for decades, and without any real serious accountability back to Canadians. So for those reasons, we just felt like this is a deal that looks good in the headlines, but not good in children's childhood. It's not in the way

it should. So, Cindy, you've kind of laid out the reasons why you didn't believe this deal was a good solution here. There were many people, though, that did want this deal to go through. Right. If we look at how the voting broke down last week, 147 out of 414 voted for it. Right. Chief Cindy Woodhouse said a big risk to not taking this deal is if there's a change in federal government. And it sounds like we are going to likely have a change to a conservative government in the next election. At least that's what the polls tell us.

And the thought was that, you know, we might not get such a good deal under the Conservative government led by Pierre Polyev. What the Conservative leader has said is he won't cut into programs that are already in place for Canadians. Based on that, I say let's get this program in place before the next election.

What do you make of that argument? Well, you know, I've been doing this now for 40 years. I've seen a lot of changes in government. And what I want to make sure is that First said Canada didn't have to spend more money, that had an alternative dispute resolution mechanism that was very weak, and that allowed Canada every year to really lessen or decrease the money or put more restrictions around the money due to these undefined government of Canada financial approval processes. So we just feel the orders are more enforceable, more secure. So just to clarify, so this is the tribunal orders that you were

talking about before. You're actually saying, I would rather rely on that than what we're getting with this new deal. Exactly. And tribunal orders under the new deal would disappear. That's the critical thing, right? So they wanted all the orders and the jurisdiction of the tribunal to go away in favor of their deal. And when we look closely at it, we didn't feel there was enough there to hold Canada accountable. There was a lot said, though, last week about the dangers of not moving forward at this time. I want to play a clip actually from last week about the dangers of not moving forward at this time. I want to play a clip actually from last Thursday of Chief Joe Miskokomon. He's chief of the Chippewas of the Thames First Nation. So let's just listen to what he had to say.

We've heard about the hurts. We've heard about going forward. But what happens if we don't go forward today? What happens is that we are stuck in status quo. The resources will not get to our communities. The poverty will not magically go away. The addictions will continue to happen. The abuses will continue to happen. The abuses will continue to happen. And the children will be left the ones to bear the scars. I guess how do you respond to those concerns? Well, I should say that Ontario, that Ontario First Nations had a special rider that provided additional security that wasn't available to other regions across the country.

So that's number one. Number two, this is a legal proceeding. So it's not an all or nothing game. This is, for example, we're comparing really the legal orders for the tribunal against the promise money, although uncertain, in this final settlement agreement. And when we weighed it up, we felt it was, you're in a better situation to take the Canadian Human Rights Tribunal orders, reset these negotiations, and address some of the shortcomings in there. So that's important. And the other thing the Chief is pointing out, though, that is really critical is, remember I was

talking about how widespread these inequalities are in public services? And one of the key areas is addictions. And addictions come from the multi-generational trauma. So Canada has to plug the holes in these other underfunded programs to really give these kids a fair shot at success. We shouldn't just have, after 18 years of litigation, equality in public services in just one area. You know, kids still drink water. There's still their families are struggling with opioid addictions. Canada needs to address that, too. But I mean, I guess to get back to the idea of, well, if you reject this one, you've got to kind of figure out another new deal. If it's a conservative government that you're negotiating with, we don't exactly know what they would put up for an offer. I mean, couldn't the next deal be for a lower amount of money?

Well, we don't just have to negotiate something. This is a legal proceeding. So we have credible evidence that we've been working on with public finance experts and First Nations and First Nations child and family service providers. The tribunal has said repeatedly, any solution to end the discrimination has to be evidence-based. Can't be just some kind of airy-fairy idea that you come up with. So we could actually go to the tribunal

and get legal orders against the Canadian government. And there is a process to be able to enforce those legal orders. All the parties supported the Truth and Reconciliation Commission's calls to action, including the Conservative government. And I would hope that with that kind of due diligence, economically, making sure the dollars make maximum impact for children, and really adhering to the TRC calls to action and setting First Nations up

for success, I'm hoping that any government, regardless of party, would fully support that and want to be a part of that negotiated solution. But if they don't, we just take them to court. I guess people would wonder, though, because you were just talking a little bit earlier about how hard it was to get the federal government to actually come to this deal, how it took years in order to just get this one. So, I mean, even if this deal wasn't perfect, isn't it maybe better than not having anything like there's no guarantee for another deal right now? In my professional opinion, having done this for 40 years, I would say that I would rather take what's on offer with the tribunal orders than what was proposed under that final settlement

agreement in terms of the security of the money and making sure that the money was actually paid, like when you look at the fine print, there's lots of loopholes and outs for Canada. We weren't even confident that they would actually be obliged to pay that money versus under the tribunal order, they're legally enforceable. And what we're dealing with here are little kids. And one of the things I always say to people, you know, over-representation of First Nations kids in Chubb Opera, it's almost, I don't even like saying it because it's too easy to say. How is it the kids think about that? And one of

the exhibits I saw at the tribunal that still breaks my heart was an Excel spreadsheet. And it answered the question, if you were a child who was separated from their family, because Canada is not giving you the same chances to succeed, but is giving you more than a double dose of the trauma to put your family at risk, how many sleeps until you see your mom or your dad when you're in foster care? They added up those nights between 1989 and 2012, and it was 66 million nights away from their families. That's what's at stake here. We need to make sure that First Nations children, youth, and families have the tools to recover from this multi-generational impact and that the First Nations and First Nations Child and Family Service agencies that

are out there on the front lines are set up for success and being able to meet those needs of those families. So Cindy, you've been working in this space for a long time now. What does an ideal solution here look like to you? Well, I think the Chiefs really laid out an ideal solution. On the governance side, they're going to kind of set up a Chiefs Committee and they're going to make sure all the experts are listened to in the revamping of a new agreement. We're hoping to get that underway right now. In fact, the work is already started on the technical side. To me, it needs to achieve the goal of stopping Canada's discrimination, preventing it from happening again. It needs to be based on First Nations evidence and it needs to be also good public finance.

And it needs to be transparent and accountable so that we can watch the progress as we're rolling these programs out. All of us want to make sure that the efforts that we have underway achieve that goal of making sure this is the last generation of First Nations kids that has to recover from their childhoods. Cindy, thank you so much for taking the time to speak with me today. Hey, thank you for having me. That's it for today.

I'm Nainika Raman-Wilms. Our producers are Madeline White, Michal Stein, and Ali Graham. David Crosby edits the show. Adrian Chung is our senior producer, and Matt Frainer is our managing editor. Thanks so much for listening, and I'll talk to you soon.