By Ken Coates, August 20, 2024
Some of the most profound governance revolutions are buried deep in the pages of complex constitutional documents and legal accords. Only a few people, reviewing the Canada Act 1982, forecast long-term political tensions over the use of the “notwithstanding” clause in the new constitution. The drafters of first set of amendments to the American constitution could scarcely have imagined that the “right to bear arms” would morph into contemporary gun culture in the United States. So, it is with the rather unpoetic “Agreement on Long-Term Reform on the First Nations Child and Family Services Program,” which has the potential to transform Indigenous governance as it currently operates in Canada.
This precedent setting settlement, worth close to $50 billion, is the first major achievement of National Chief Cindy Woodhouse Nepinak’s term as the head of the Assembly of First Nations. It is also potentially one of the most consequential developments in Canadian public policy in fifty years. The agreement is built off the tragic foundation of Indigenous residential schools, the Sixties Scoop of Indigenous children from their families, and intrusive, insensitive, and constantly underfunded social services for Indigenous families.
The result of this curious programmatic combination of federal paternalism, cultural superiority, neglect, and intervention was the stepwise destruction of many Indigenous families and the disruption of hundreds of communities. First Nations, Metis, and Inuit representatives challenged the Government of Canada repeatedly, but their claims and requests fell on unhearing ears. As Indigenous political power increased and, in particular, as the Assembly of First Nations emerged as a major voice for Indigenous empowerment, the issues gained greater currency.
The emergence of child and family services as a “top of mind” issue owes a great deal to community-level groups and Indigenous women’s associations. The women drew national and international attention to the incompetence and cultural injustice of the federal government’s management of children’s programs. There is a long way between the identification of a serious problem with Indigenous policy and the creation and implementation of workable solutions.
Governments in this country move extremely slowly, unless prodded by legal action, or in this instance, a favourable decision by the Canadian High Rights Tribunal. There was earlier agreement on high sounding concepts, including Jordan’s Principle demanding equity in the provision of government services, and notional commitments of billions of dollars. But an incredible amount of work remained to convert these concepts into workable policy, administrative arrangements, and financial accords.
Complicating the negotiations is the unique and evolving role of the Assembly of First Nations. Established as an advocacy group for the more than 630 First Nations in Canada, the AFN spent decades fighting to get Indigenous issues onto the national political agenda and to force the national government to provide an acceptable agreement. The AFN is not a rights-holding body; that authority rests with the individual First Nations. They are also not a governing institution, in that the AFN does not deliver programs to First Nations people. Some commentators type cast the AFN as a lobby group, but that understates the organization’s profile and effectiveness and its role in providing a national voice to the nations it represents.
The AFN has been directly involved in program negotiations in the past – and the Assembly intervenes routinely on a wide variety of Indigenous issues, government policies, national budgetary processes and program issues. The major foray into direct policy negotiations, one that ended in acrimony, involved National Chief Shawn Atleo’s work with the government of Stephen Harper on a new Indigenous education funding model. In this instance, the chiefs reacted against the concept of national agreement, rejecting both the accord and, over the next few months, forcing out the national chief.
The First Nations Child and Family Services Agreement, signed by AFN and the Government of Canada in July 2024, is a major step forward. But it is not a final agreement. The AFN will spend the summer and early fall of 2024 meeting with regional caucuses and explaining the financial and administrative arrangements. A Special Assembly of the Assembly of First Nations is scheduled for September 2024 for a final vote.
A positive vote is not assured. With more than 630 Chiefs, the AFN is a complex political organization, representing many different cultures, languages, communities and political priorities. Individual chiefs critical of the agreement have challenged the authority of the national chief to negotiate with the Government of Canada, even though Chief Woodhouse had clear instructions from the AFN to do just that. Given the nature of AFN and the stakes involved – a fundamental redrafting of the responsibility for First Nations child welfare in Canada – impassioned debate is inevitable.
The Final Agreement, if ratified, would have truly transformative effects on Indigenous affairs in Canada. Regaining control over child and family services would give Indigenous peoples, families, and governments authority over the most critical responsibility for any society. It would eliminate the inherent paternalism and colonial elements of government policy and programming, allowing First Nations to set their own course on family matters. State control over Indigenous children and families produced generations of heartache; Indigenous decision-making and management will return power to where it belongs – in the hands of Indigenous agencies.
The reverse is also true. The AFN negotiated this hard-won accord over many months. If the chiefs reject the agreement, as is their right, they will undermine the ability of the Assembly to negotiate future agreements with the Government of Canada. With the free-spending and Indigenous-aware Trudeau government in the waning months of its third term and with the possibility of a Conservative government looming, the prospect of a similar or better settlement is uncertain, at best. Major agreements come together in unique and promising circumstances; the convergence of interests, rulings and Canadian politics around Indigenous child and family services is an opportunity not to be missed.
In the absence of a negotiated settlement, a return to the unpredictability of the courts is likely. The federal government has been pushing the envelope to get final agreements on a wide variety of Indigenous legal and policy matters, but further concessions are uncertain, at best. Returning to the courts limits the ability of the chiefs, working through the AFN, to shape the outcome. Furthermore, asking the courts to make the final decision on this critical matter could delay a resolution considerably, at a direct cost to Indigenous children and families across the country.
The current agreement, if ratified, would be the start and not the end of a process of truly national significance. The money needed to manage this large and complex portfolio would be transferred to Indigenous governments. The Ottawa-centric bureaucracy of Indigenous Services Canada would finally start to shrink and would eventually disappear as a factor in the everyday lives of Indigenous families. A tangible and dramatic shift in power from the federal, provincial, and territorial governments to the First Nations is at hand.
The impact of the agreement would be dramatic. Western approaches to child protection and family affairs would be replaced by culturally appropriate and community-based strategies. Professional training would shift from college and university social work and early childhood care programs to Indigenous knowledge and training systems. Elders, knowledge keepers and family and community members would take on a far greater role in childcare and family maintenance.
These changes will not be immediate, will follow multiple paths, and will evolve over time. There will be bumps on the road, to be sure, but Indigenous peoples have shown exceptional resilience and determination in reaching this point. Emerging from generations of state paternalism and the systematic undermining of Indigenous families will not happen overnight, but the new path holds out much greater hope.
The size and nature of First Nations governments will also change dramatically. At present, most First Nations governments devote way too much time to managing their relationships with Indigenous Services Canada, including through grant applications, reporting, negotiations and dispute management. There will be new challenges, largely internal to the First Nations – likely including service collaborations between First Nations to address diseconomies of scale among smaller First Nations and innovative approaches to serving both on- and off-reserve First Nations people.
The size of most Indigenous governments will grow, resulting in a variety of challenges from internal management, staff recruiting and retention, and appropriate training, to the provision of facilities and administrative support to oversee much larger service responsibilities. Battles over opioids, substance abuse and domestic violence will be much better handled with the levers of family welfare in Indigenous hands. First Nations will be able to make better connections between education and training, also coming increasingly under Indigenous control, and general social welfare, aiding in efforts to build economic activity and create additional “own source” revenues.
Gaining control over child and family services is no panacea. It will not immediately solve the challenges and capitalize on the opportunities facing First Nations communities. But it is a huge leap forward, one made possible by the Government of Canada’s much-belated recognition that the federal bureaucracy is the source of much despair in Indigenous communities and more part of the problem than the solution.
National Chief Woodhouse Nepinak has brought the Assembly of First Nations within a whisker of the finish line on a race that, until recently, seemed destined to never end. There is a strong agreement – not yet a full consensus – that the final settlement agreement gives First Nations the tools and resources needed to seize control of the administration of child family affairs in their communities. The agreement seems much more transformative than most commentators currently assume. The re-empowerment of First Nations is at hand, and the relationship between First Nations and the rest of Canada is about to take a dramatic and welcome turn.
Canada and First Nations came close to a comparable transformation in 2005, in the last months of the government of Liberal Prime Minister Paul Martin. The Kelowna Accord promised the transfer of billions of dollars to Indigenous governments, offering a major step toward meaningful autonomy and real self-government. In this case, the Martin government fell before the agreement was ratified. Indigenous governments lost a vital opportunity for sustainable independence. Now, through the First Nations Child and Family Services Program agreement, the chance is once more at hand. Indigenous peoples should watch the AFN discussions with great interest, for both the nature of family and child welfare and the future shape of First Nations governments are at stake.
Ken S. Coates is a distinguished fellow and director of Indigenous Affairs at the Macdonald-Laurier Institute and a professor of Indigenous Governance at Yukon University.
