N.W.T. not included in $40B child welfare discrimination agreement

First Nations children and families in the N.W.T. are not entitled to compensation under a multi-billion dollar agreement-in-principle between the federal government and First Nations leaders to address those harmed by Canada's discriminatory child welfare system.

The $40-billion agreement, announced on Tuesday, sets aside $20 billion to compensate First Nations children on-reserve and in the Yukon who were removed from their homes between April 1, 1991 and March 31, 2022.

Another $19.8 billion over the next five years will be devoted toward long-term reform of the child welfare system.

The agreement-in-principle stems from a 2016 Canadian Human Rights Tribunal decision that found the federal government discriminated against First Nations children and families through its provision of child and family services and for its failure to honour Jordan's Principle.

The tribunal ordered the federal government to pay $40,000 to each child affected by the on-reserve child welfare system, as well as their primary guardians, unless their children were taken into foster care due to abuse.

The agreement comes 14 years after the Assembly of First Nations and the First Nations Child and Family Caring Society filed a complaint against the federal government for discriminating against First Nations children and families by failing to meet their needs through the First Nations Child and Family Services Program.

Why isn't the N.W.T. included?

The short answer: Child and family services in the N.W.T. and Nunavut are not funded through the First Nations Child and Family Services Program. 

This was the specific federal program at issue in the 2007 complaint. The tribunal found this program discriminatory in large part because it under-funded prevention services for First Nations on-reserve and in the Yukon that work to keep children with families, which contributed to large numbers of First Nations children entering and staying in foster care.

Although Indigenous Services Canada could not be reached for comment Thursday, its website states that "funding for child and family services in Nunavut and the Northwest Territories is provided by the Department of Finance Canada through transfer payment agreements with the territorial governments, which make up a portion of their annual budgets."

The N.W.T. and Nunavut governments "decide how and where to spend the funds."

Dene National Chief Gerald Antoine noted, via press release, he's had an emergency conference with the Assembly of First Nations "on the impact of excluding the Northwest Territories in the Federal Agreement in Principle for the Child Welfare agreement."

He could not be reached for an interview by CBC News on Thursday.

Limited N.W.T. compensation under Jordan's Principle

First Nations children in the N.W.T. are entitled to compensation for the government's failure to honour Jordan's Principle. The principle was put in place to ensure funding disputes between governments do not result in the denial or delay of access to essential services for First Nations children.

"The Jordan's Principle orders apply in the N.W.T. so that means families are, and will continue, to receive the benefit of the [Canadian Human Rights Tribunal's] orders on Jordan's Principle," Cindy Blackstock said, via email on Friday. Blackstock is the the executive director of the First Nations Child and Family Caring Society, which levelled the initial complaint in 2007.

Blackstock said this applies to children who "did not receive or were delayed receiving an essential public service or product between April 1, 1991, and Dec. 11, 2007," or those who were affected by the "government's narrow definition" of the principle between Dec. 12, 2007, and Nov. 2, 2017.

A system in turmoil

The N.W.T.'s child and family services system has been in a state of crisis for years, with foster care-givers decrying a lack of support and Indigenous youth continuing to be over-represented in child and family services cases.

A recent report released in the Legislative Assembly noted 98 per cent of the 1,044 children or youth involved with child and family services between April 1, 2020 and March 31, 2021 in the N.W.T. were Indigenous, in a territory where Indigenous children and youth make up 57 percent of the population.

Scathing reports from the Auditor General — from 2014 and 2018 — also pointed out major communication lapses and dysfunction in the system. The 2018 report found that child and family services authorities failed to keep the required regular contact with nine out of ten children placed in foster care. It also noted that two-thirds of guardians in charge of caring for children and youth were not adequately screened.

But Indigenous governments are starting to take child and family services into their own hands.

In January 2020, Bill C-92 came into effect, recognizing the rights of Inuit, First Nations and Métis governments to create their own laws for child and family services. 

In November 2021, the Inuvialuit Regional Corporation enacted a child and family services law for its people, designed to keep children in their home communities.