Canada has told the Assembly of First Nations that Ottawa has no mandate to negotiate nationally after chiefs rejected a $47.8-billion offer to reform the on-reserve child welfare system long term, CBC Indigenous has learned.

Instead, the federal government is opting to continue negotiations with First Nations leaders in Ontario — the only region that fully endorsed the agreement — to strike a region-specific deal based on the original proposal’s terms.

Indigenous Services Canada announced those talks with the Chiefs of Ontario and Nishnawbe Aski Nation political organizations in a news release on Tuesday. What the release didn’t say is that Canada has privately told the AFN that Ottawa will not be negotiating further at the national level.

Paul Vickery, Canada’s legal counsel, relayed that information in a letter, marked confidential and settlement privileged but obtained by CBC Indigenous, to the AFN’s lawyers on Jan. 6.

“The Chiefs of Ontario and Nishnawbe Aski Nation, whose First Nations approved the Final Agreement at their respective assemblies, have asked Canada to negotiate an agreement specific to Ontario based on the Final Agreement’s terms. Canada, the Chiefs of Ontario and Nishnawbe Aski Nation will begin those negotiations shortly,” wrote Vickery.

“At this time, Canada’s mandate does not permit further negotiations on reform of the First Nations Child and Family Services Program on a national basis. Canada is not currently in a position to engage in any negotiations beyond those with COO and NAN.”

COO is a provincewide umbrella group and NAN represents 49 First Nations in northern Ontario, while AFN represents chiefs across the country.

The letter raises questions about whether the Liberal government will honour AFN resolutions from last October and December. At those two AFN gatherings, chiefs voted to reject the proposed final settlement agreement in favour of renegotiation.

They urged Canada to return with a new mandate to engage with a newly formed Children’s Chiefs Commission. Opponents argued the money wasn’t guaranteed while the governance, regional representation and accountability of the reformed program had problems. Supporters warned of political uncertainty and argued the offer was the best Canada would make.

AFN disappointed

The agreement was designed to fulfil a binding order from the Canadian Human Rights Tribunal to reform the on-reserve child welfare system, which the tribunal ruled in 2016 was chronically underfunded and racially discriminatory.

The complaint has been before the tribunal for 18 years and includes four main groups: complainants AFN and the First Nations Child and Family Caring Society, plus interested parties COO and NAN.

National Chief Cindy Woodhouse Nepinak campaigned on getting the deal across the goal line and recommended the chiefs ratify it. CBC Indigenous requested an interview with Woodhouse Nepinak but she was not made available.

She called Canada’s decision “very disappointing” in a statement on Tuesday.

Assembly of First Nations National Chief Cindy Woodhouse Nepinak speaks in the Foyer of the House of Commons on Parliament Hill in Ottawa on Oct. 10, 2024. (Spencer Colby/The Canadian Press)

“The well-being of First Nations children and families remains our top priority, and we will continue to advocate for fair and equitable supports to ensure our children thrive, wherever they live,” she said in the statement.

“The AFN Executive Committee will continue its discussions to determine how best to support First Nations children and families, in light of this unfortunate development.”

Cindy Blackstock, the Caring Society’s executive director, said Canada owes a duty to remedy its discriminatory practices to all children in Canada.

“The federal government has discriminated against all First Nations children,” she said in an email.

“The discriminator must not be allowed to choose which of its child victims gets justice. Every child matters.”

‘We cannot wait,’ says regional chief

The fate of the program became even more uncertain this week when Prime Minister Justin Trudeau shut down Parliament until late March and announced his plan to resign once the Liberals select a successor. The party will now begin a leadership race.

Ontario Regional Chief Abram Benedict agreed it’s disappointing Canada will not agree to national reform but he pointed to the shifting federal political reality and Ontario chiefs’ strong direction that the proposal is still the best way forward.

“Every child does matter. The discrimination today still exists. My chiefs in my region have said we need to end this discrimination. They have said that we cannot wait for another 10-year process in the tribunal,” he said.

“We cannot wait for the government to change. We cannot hope that the government is going to do the right thing. There’s a proposal here. I have a mandate from my region to advance that proposal. And that’s what we’re doing.”

Ontario Regional Chief Abram Benedict looks on during the AFN Special Chiefs Assembly in Ottawa in December. (Spencer Colby/The Canadian Press)

In a series of text messages, Jennifer Kozelj, spokesperson for Indigenous Services Minister Patty Hajdu, said Canada is not cutting out the AFN nor refusing to engage with the chiefs’ directions.

The Caring Society left the reform talks and the AFN turned down the deal while “COO and NAN wanted to work with Canada, so Canada did,” Kozelj wrote. This isn’t a new deal being negotiated, but the one AFN rejected, she said.

Through COO and NAN, Ontario was the only region that participated directly in settlement negotiations. Other regions were represented through AFN.

The complaint remains before the human rights tribunal.