A legal review commissioned by the Assembly of First Nations warns that a change of government next year could invalidate a $47.8 billion agreement to reform the Indigenous child welfare system.
The agreement was signed in July after decades of advocacy and litigation by Indigenous peoples and experts seeking to redress discrimination against Indigenous children who have been removed from their families and placed in foster care.
The Canadian Human Rights Tribunal had ordered Canada to reach agreements with First Nations.
Mayors voted against the deal at a special meeting in October, leaving the AFN scrambling to figure out what would happen next. Indigenous Services Minister Patty Hajdu has repeatedly expressed disappointment that the deal won’t move forward and said Tuesday the government is considering its options.
The law firm Fasken Martineau Dumoulin, which carried out the legal review for AFN, warned that there is no guarantee that the new government will negotiate or make similar commitments as proposed by the ruling Liberal Party.
“However, once the final settlement agreement (or amended version) is approved and becomes effective, it becomes a legally binding and enforceable contract and cannot be modified by the new government absent the consent of the parties or judicial intervention. ‘Thus, it would be binding on future governments,'” the review, dated November 15, said.
“This means the new government will not be bound by previous negotiations with Canada, including a $47.8 billion commitment, until a binding agreement is signed,” it added.
The Conservative Party, which has a large lead in opinion polls, did not respond to repeated requests for comment on whether it would negotiate with First Nations or commit to meeting the $47.8 billion figure.
The Canadian Human Rights Tribunal has called for reform, saying underfunding of child welfare services in Canada is discriminatory and means children living on reserves receive fewer services than children living on reserves. ordered Canada to reach agreements with indigenous peoples.
The agreement was intended to cover 10 years of funding for First Nations to manage their own child welfare services from the federal government.
Mayors and service providers have criticized the agreement for months, saying it does not go far enough to ensure an end to discrimination. They also accused the federal government of failing to consult Indigenous peoples in negotiations and of excluding the Indigenous Children and Family Care Association, which supported the original human rights complaint.
At a special meeting of mayors held in Calgary in October, the agreement was terminated by two resolutions.
The Assembly of Indigenous Peoples called for a legal review of the potential consequences if these resolutions and agreements were not accepted. Perry Bellegarde, the organization’s former national director, works as a special counsel at the Fasken Martineau Dumoulin law firm. The firm also represented the Assembly of First Nations in the class action portion of a human rights violation lawsuit against Canada.
Cindy Blackstock, president of the Indigenous Child and Family Care Association and who helped launch the original human rights complaint, said the proposed $47.8 billion was by no means safe because the money would be subject to parliamentary spending. He said no.
“The first year it was probably about $4.7 billion, and then we’ll see what happens,” she said.
He said the Canadian Human Rights Tribunal, combined with Canada’s own estimates, puts the cost of reform at about $45 billion plus actual costs, “so we’re somewhere around that in any case.” .
“And they are binding legal orders on any government,” she said.
Chief Joe Miscocommon of the Chippewa Thames First Nation in southwestern Ontario, who had been a vocal supporter of the scrapped deal, said the deal could be irrevocable and that the alternative was to go back to court and move on. He said he expected a similar verdict to be handed down. It’s just as “magnified” as what we currently have in front of us.
Alternatively, the court could take away housing funds or other benefits granted in the agreement, with Canada only obligated to pay the minimum amount necessary to correct the problem, he said.
“Do we have to live in a fantasy world where there is a bottomless pit and the well never runs dry?…Having policies that do not reflect those of the current government is It is clear from the leadership of the party,” he said. Said.
“We must impress upon them that no matter what government comes into being, no matter what tie they wear, there are still orders of the Human Rights Court that we must abide by. , we’re going to insist that we at least meet the minimum standards for the region we’re in.” Now that we’re negotiating through a final draft agreement, does that mean of course we won’t agree? ”
This report by The Canadian Press was first published Dec. 12, 2024.
