Opposition to the Final Settlement Agreement (FSA) on Long-Term Reform of the First Nations Child and Family Services (FNCFS) Program, Explained

First Nations Leadership from across Canada will vote this week in favour or against accepting a 10-year $47.8 Billion deal that many feel contain flaws and needs to be further negotiated.

Final Settlement Agreement (FSA) on Long-Term Reform of First Nations Child and Family Services (FNCFS)

The Final Settlement Agreement (FSA) on long-term reform of First Nations Child and Family Services (FNCFS)  aims to restructure child welfare services for First Nations children. The goal is to resolve the systemic discrimination identified by the Canadian Human Rights Tribunal (CHRT) in 2016. However, many First Nations leaders have raised significant concerns, highlighting issues around funding security, inadequate funding, lack of regional decision-making power, and the risk of ongoing discrimination. Below is a detailed explanation of the key reasons for opposition.

Background of the Final Settlement Agreement (FSA)

The Canadian government funds many public services for First Nations, but often at lower levels than what others receive and what First Nations children deserve. As a result, First Nations children, youth, and families face severe consequences, including high rates of over-representation in child welfare and tragic child deaths. The Final Settlement Agreement (FSA) stems from a 2007 human rights complaint filed by the Assembly of First Nations (AFN) and the First Nations Child and Family Caring Society against the Canadian government. The complaint argued that Canada was underfunding First Nations child and family services and failing to implement Jordan’s Principle, which guarantees that First Nations children receive timely services without delays caused by jurisdictional disputes. In 2016, the Canadian Human Rights Tribunal (CHRT) ruled in favour of the complainants and ordered Canada to end its discriminatory practices.

The FSA, negotiated between AFN, the Chiefs of Ontario, the Nishnawbe Aski Nation (NAN), and Canada in 2024, is intended to resolve the CHRT complaints. While the FSA addresses some structural issues, First Nations leadership is now tasked with endorsing or rejecting this agreement. This agreement could replace the ongoing CHRT oversight with a new framework with more limited powers to hold Canada accountable.

Role of BC First Nations in the FSA

Like most regions across the Province, BC First Nations are particularly concerned about their limited role in drafting and implementing the proposed FSA.  Once the agreement is signed, BC First Nations regional organizations, such as the First Nations Leadership Council (FNLC), BC AFN, and others, will not have formal decision-making power. A confidential committee will make all decisions. This means that BC First Nations will not know what decisions are being made for their children, will not be consulted on delivering child welfare services post-FSA and will not have a say in how the reforms are implemented or how funding is allocated.

Furthermore, BC First Nations are classified as “service providers” under the FSA, meaning they can request additional funding or participate in dispute resolution, but only by waiving their right to file complaints with the CHRT. This lack of a formal role in decision-making undermines BC First Nations’ self-determination and raises concerns about whether their voices will be adequately represented.

Funding Concerns Under the FSA

Funding under the Final Settlement Agreement (FSA) is a crucial dispute. While the agreement claims to allocate $47.8 billion over ten years, this funding depends on annual parliamentary approvals and other vague Canadian government processes. In reality, this is a one-year funding commitment with a 10-year forecast, and there are no safeguards to prevent Canada from resuming discriminatory practices once the 10-year period ends. Concerns also exist about whether the funding is sufficient. The FSA departs significantly from the solid and evidence-based solutions that First Nations and their experts have helped develop. Many experts doubt that the committed amounts will cover the costs of child and family services, particularly in BC, where prevention services remain underfunded. Additionally, the funding for the first five years is capped at $24.477 billion, with no clear plan to address potential funding shortfalls.

Another significant concern is that the Dispute Resolution Tribunal under the FSA lacks the authority to order Canada to increase funding or make systemic changes, even if discrimination continues. In contrast, CHRT orders, which remain in force as long as necessary, can be varied to ensure Canada complies with its obligations, providing a stronger legal safeguard.

Self-Government and Treaty Funding

The FSA’s provisions for self-government and treaty funding are vague and do not offer the clarity needed by First Nations exercising jurisdiction over child and family services. The FSA says  First Nations that are parties to self-government agreements, treaty arrangements, or child welfare law-making agreements under the Act Respecting First Nations, Metis, and Inuit children, youth and families will not receive less funding than they would under the FSA. However, the enforcement of this provision is not transparent. The lack of detail on how this funding will be calculated and provided raises concerns about whether these First Nations will receive the support they need to implement their child and family services systems.

Addressing Future Discrimination

While the FSA is intended to stop Canada’s systemic discrimination in child welfare services, it falls far short of guaranteeing that such discrimination will not happen again. Funding is capped and subject to annual appropriations and other approvals by the Canadian government, meaning there is no guarantee of funding levels within or after the 10-year period, introducing financial instability for child and family services. Additionally, the lack of a robust dispute resolution mechanism means that First Nations will have limited recourse if future funding shortfalls or discrimination arise.

The CHRT orders, which are currently in place, provide a stronger legal framework for addressing discrimination. These orders have binding legal force, can be varied to address changing needs and ensure Canada remains accountable for complying with its obligations across government changes.  By replacing the CHRT’s oversight with the FSA, there is a risk that future discrimination will not be adequately addressed.

Concerns Regarding the Dispute Resolution Process Under the FSA

The dispute resolution process under the FSA has been widely criticized for being weaker than the existing CHRT process. On its face, a First Nations-based Tribunal is a good idea, but not if it has fewer protections than the mainstream system. The FSA Dispute Resolution Tribunal does not have the power to compel Canada to increase funding, make systemic changes, or resolve discrimination. Instead, it primarily serves as a mediator with limited legal authority to enforce its decisions.

This is particularly concerning given Canada’s track record of non-compliance with CHRT orders, even when those orders have the binding force of law. By removing the CHRT’s oversight, the FSA reduces the ability of First Nations to hold Canada accountable for addressing ongoing discrimination.

What Happens if First Nations Leadership Disapproves the FSA?

If First Nations leadership chooses not to approve the FSA, it can be renegotiated. This occurred with the compensation component of the FSA, where the agreement was revised after First Nations leadership raised concerns. Rejecting the FSA would allow First Nations to push for a more favourable agreement that addresses their concerns around funding, decision-making, and self-determination and protects generations of First Nations children from Canada’s discrimination.

Does the FSA Meet the Standards of International Law?

There are serious concerns that the FSA does not meet the standards set out by international law, including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP enshrines the right of Indigenous peoples to be consulted through their representative institutions and to give free, prior, and informed consent before any decisions are made that affect them.

However, the FSA negotiation process has been criticized for excluding key stakeholders, such as the First Nations Child and Family Caring Society, and failing to consult meaningfully with First Nations leadership. The process did not involve broad public consultations or include the participation of First Nations in developing measures to eliminate systemic discrimination, as required by international law.

What Are the Next Steps?

If First Nations leadership approves the FSA, Canada, AFN, COO, and NAN will move to end the CHRT’s jurisdiction and replace its orders with the terms of the FSA. This would effectively remove the CHRT’s oversight and replace it with the Dispute Resolution Tribunal established by the FSA.

If the FSA is rejected, it can be renegotiated and revised to address the concerns raised by First Nations leaders. This process would provide an opportunity to push for a more robust agreement that ensures meaningful consultation, adequate funding, and long-term solutions to discrimination in child welfare services.

At the Special Chiefs Assembly in Calgary, Draft Resolution 01 calls for Chiefs and Proxies to approve the draft FSA. This resolution could be opposed, which paves the way for Resolution 02, which calls for a renewed negotiation with improved principles to guide it and meaningfully address the concerns of First Nations leadership and experts.

Conclusion

In its current form, the Final Settlement Agreement does not adequately meet the needs of First Nations children and communities. By centralizing decision-making power with the Canadian government, limiting the role of First Nations and key stakeholders, and failing to provide guaranteed long-term funding, the FSA does not deliver the reforms needed to end Canada’s systemic discrimination. Many First Nations leaders are advocating for a better agreement that upholds self-determination, includes all voices, and guarantees real, lasting change for future generations of First Nations children.