Executive Summary of Agreement-in-Principle on Long-Term Reform

In the context of the discussion leading up to this Agreement-in-Principle, a key aim was to enable First Nations and First Nations authorized service providers to provide predictable, evidence informed services calibrated to distinct community needs and circumstances. Research is underway to inform the development of a longer-term funding approach that recognizes the distinct needs and circumstances of First Nations children, youth and families. In the interim, a new funding methodology will be put in place for continuity of existing services that will support families whilst the expanded range of prevention supports are developed.

This document summarizes the Agreement-in-Principle on Long-Term Reform of the First Nations Child and Family Services Program and Jordan’s Principle, which was signed by the Assembly of First Nations, the First Nations Child and Family Caring Society, the Chiefs of Ontario, the Nishnawbe Aski Nation, and the Government of Canada (collectively, the "Parties"), on December 31, 2021 (the "Agreement-in-Principle on Long-Term Reform").

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Overview

Purpose

The purpose of the Agreement-in-Principle on Long-Term Reform is to provide a framework for reform of the First Nations Child and Family Services Program (the "FNCFS Program"), for improved implementation of Jordan’s Principle, and to reform Indigenous Services Canada to prevent the recurrence of discrimination. These reforms aim to satisfy the Canadian Human Rights Tribunal ("the Tribunal") orders regarding discrimination perpetrated by Canada in its FNCFS Program and its narrow application of Jordan’s Principle. The reforms, designed to be in the best interest of First Nations children, youth, young adults and families, also aim to ensure that the discrimination they have experienced is not repeated. The reforms will also respect and conform to First Nations jurisdiction based on the inherent right to self-determination, recognized and affirmed by section 35 of the Constitution Act, 1982.

The FNCFS Program

Indigenous Services Canada provides funding to First Nations child and family services agencies, which are established, managed and controlled by First Nations and delegated by provincial authorities to provide prevention and protection services. The Program also provides funding to First Nations for the delivery of culturally appropriate prevention and well-being services for First Nation children and families on reserve and in the Yukon, and will fund First Nations Representative Services.

Amount

The Agreement-in-Principle on Long-Term Reform dedicates $19.807 billion over five years for reforming the FNCFS Program and for major capital relating to the FNCFS Program and Jordan’s Principle. The Parties recognize that this amount does not include all program funding, such as for the implementation of Jordan’s Principle.

Next Steps

In 2022, the Parties will undertake to negotiate and seek to conclude a final settlement agreement that will set out the details of long-term reform of the FNCFS Program, establish a path forward for reformed implementation of Jordan’s Principle, and consider other initiatives to reform Indigenous Services Canada (the "Final Settlement Agreement").

Immediate Measures

Canada will also implement the CHRT’s orders to fund First Nations, FNCFS agencies and Jordan’s Principle service providers for the purchase and construction of capital assets to assist in delivery of child and family services, First Nations Representative Services and Jordan’s Principle services, and to support capital needs assessments and feasibility studies.

On April 1, 2022, Canada will begin funding:

  • Prevention based on a formula that multiplies $2,500 by the on-reserve First Nations population and the First Nations population in the Yukon (to be allocated among agencies and First Nations);
  • First Nations Representative Services based on a formula that multiplies $283 by the First Nations population on-reserve and in the Yukon (or $332.9 million over five years for First Nations in Ontario - funded to First Nations);
  • The actual costs of post-majority care to former children in care up to and including the age of 25 (to be funded to agencies, or where a First Nation does not receive services from an FNCFS agency, then directly to the First Nation or service provider authorized by the First Nation); and
  • The National Assembly of Remote Communities (NARC) over a five-year period.

Details

The following describes the contents of the Agreement-in-Principle on Long-Term Reform, to be implemented by April 2023.

Recipients of FNCFS Funding

First Nations and FNCFS service providers (which are organizations – most often FNCFS agencies – that provide FNCFS) will receive the funding. First Nations and FNCFS service providers will use the funding to deliver child and family services to First Nations children, youth and families on-reserve and in the Yukon.

Funding Mechanisms

Indigenous Services Canada will distribute funding to the recipients using block and flexible funding mechanisms. These mechanisms will allow the recipients to move funding across expenditure categories in order to meet the real needs of the children, youth and families they serve, and to roll over unused amounts into future years. Flexible funding will be available to recipients until they are able to transition to a block funding mechanism.

Reformed CFS Funding Approach

The Agreement-in-Principle outlines a reformed funding approach for the FNCFS Program (the "Reformed CFS Funding Approach"). The Reformed CFS Funding Approach draws from the work by the Institute of Fiscal Studies and Democracy ("IFSD") in its reports Enabling First Nations Children to Thrive ("Phase 1") and Funding First Nations Child and Family Services (FNCFS): A performance budget approach to well-being ("Phase 2"). IFSD’s upcoming work, Research for the Modeling of a Well-being Focused Approach for First Nations Child and Family Services Through Performance Budgeting ("Phase 3"), will inform adjustments to the Reformed CFS Funding Approach as well as supports to transition First Nations and FNCFS service providers to the Reformed CFS Funding Approach.

Elements of the Reformed CFS Funding Approach

Until such time that a permanent arrangement is in place in April 2023, funding will be provided to those who are currently delivering the services, so that children, youth and families will not experience service disruptions in 2022-23. Meanwhile, the IFSD’s Phase 3 work will inform a mid- to long-term strategy for transitioning to the reformed funding approach, which may include changing who receives the funding and delivers the services, in a way which ensures that children, youth and families do not experience service disruptions.

  • Baseline Funding for FNCFS Service Providers: Baseline funding is provided based on the 2019-2020 expenditures of the FNCFS Program. Baseline Funding will increase year over year to reflect inflation and population growth.
  • Prevention: Funding for prevention activities is provided based on a formula that multiplies $2,500 by the First Nations population on-reserve and in the Yukon. Prevention funding will be allocated between First Nations and/or FNCFS service providers that deliver prevention services.
  • First Nation Representative Services (previously known as Band Representative Services): Funding for First Nation Representative Services is provided to each First Nation based on a formula that multiplies $283 by the First Nations population on-reserve (with the exception of First Nations in Ontario) and in the Yukon (for First Nations in Ontario, see Main Ontario-Specific Elements).
  • Information Technology: Additional top-up funding for information technology is provided in an amount equivalent to 6% of Baseline Funding.
  • Results: Additional top-up funding for results is provided in an amount equivalent to 5% of Baseline Funding. This supports the implementation of the Measuring to Thrive framework premised on well-being indicators in relation to child, family and community outcomes.
  • Emergency Fund: Additional top-up funding for an emergency fund is provided in an amount equivalent to 2% of Baseline Funding. This fund will support responses to unanticipated circumstances affecting or related to the provision of FNCFS.
  • Poverty: Additional top up funding is provided to address poverty gaps.
  • Post-Majority Care: Additional funding is provided for post-majority care for youth aging out of care and young adults formerly in care up to and including the age of 25 across all provinces and territories.
  • Capital: Additional top up funding is provided for the purchase and/or construction of capital assets needed to support the delivery of FNCFS and/or Jordan’s Principle services to First Nations children, youth or families on-reserve or in the Yukon, and for needs assessments and feasibility studies for such capital assets.

Additional investments over and above the $19.807 billion may be required in order to achieve long-term reform, informed by measures including but not limited to, periodic funding reviews, IFSD Phase 3 and future First Nations authorized research, including needs assessments for First Nations that are not served by an FNCFS agency.

Provisions Specific to Remote Communities and Nishnawbe Aski Nation (NAN)

  • Remoteness Funding: The Agreement-in-Principle recognizes the barriers that impact remote First Nation communities, including governance issues and increased costs associated with remoteness. Canada will index funding to account for the increased costs of delivering child and family services in remote communities. The indexing will apply to Baseline Funding and to additional top-up funding for prevention, information technology, results, the emergency fund and poverty. Canada will collaborate with First Nations to develop a methodology to account for remoteness costs on a national basis, building on the Remoteness Quotient Adjustment Factor (RQAF) methodology developed by the NAN-Canada Remoteness Quotient Table.
  • National Assembly of Remote Communities (NARC): Canada will fund a NARC-Canada Remoteness Table to develop a First Nations-sighted, evidence-based statistical model to estimate the increased costs associated with remoteness and in relation to providing child and family services in remote communities across the country. Canada will continue discussions with Nishnawbe Aski Nation about how to test different approaches to addressing the needs of remote communities with a sample of remote communities from across the country.
  • Remoteness Secretariat: Nishnawbe Aski Nation and Canada will establish a dedicated Remoteness Secretariat with the primary responsibility for addressing remoteness issues. Canada will provide funding to this Secretariat. The Remoteness Secretariat will collect and analyze data in support of the NARC-Canada Remoteness Table, serve as a hub for best practices, and disseminate research and tools to assist First Nations and FNCFS service providers in accounting for remoteness issues including increased costs.
  • Choose Life: Canada will continue to fund Choose Life, which is an important suicide prevention program funded through Jordan’s Principle for youth in Nishnawbe Aski Nation communities, at least at current funding levels before the Final Settlement Agreement is concluded. Long-term funding for Choose Life will be agreed upon in the Final Settlement Agreement. To inform long-term funding and reform of Jordan’s Principle, Nishnawbe Aski Nation and Canada will formalize a high-level dialogue through a Choose Life Table based on agreed upon Terms of Reference.

Main Ontario-Specific Provisions

  • First Nation Representative Services: Canada will begin to flow funding of $332.9 million over five years on April 1, 2022, to First Nations or to service providers that First Nations indicate should receive the funding. No First Nations Representative Services program will be funded in an amount lower than its highest annual funding amount between 2019-2020 and 2020-2021. Funding for First Nations Representative Services at actual costs will end on March 31, 2023.
  • Capital: Canada will provide funding to First Nations for the purchase and/or construction of capital assets to support the delivery of First Nation Representative Services or prevention activities to First Nations children, youth or families on-reserve. Canada will also fund needs assessments and feasibility studies for such capital assets.
  • 1965 Canada-Ontario Agreement. Canada and the Chiefs of Ontario will determine an approach to reforming the 1965 Agreement (this approach will include reaching out to the Government of Ontario). Regardless of the 1965 Agreement’s status, FNCFS agencies and service providers in Ontario will benefit from the Reformed CFS Funding Approach to the same extent as FNCFS agencies and service providers outside Ontario.

National First Nations Secretariat

An independent and technical Secretariat function will be established to assist First Nations and FNCFS service providers through data collection, analysis, and operational support. The Secretariat will share research and tools to help in the transition to the Reformed CFS Funding Approach. The Secretariat is not necessarily envisioned as one organization, but rather could be a network that builds on existing First Nations regional and national capacity.

Jordan’s Principle

Canada will take urgent steps to implement the measures set out in the "Work Plan to Improve Outcomes under Jordan’s Principle, based on Indigenous Services Canada’s Compliance with the Tribunal’s Orders." The Work Plan specifically includes commitments to:

  • Identify, respond to and report on urgent requests;
  • Develop and implement Indigenous Services Canada internal quality assurance measures, including training on various topics, a complaint mechanism, and an independent office to ensure compliance;
  • Ensure privacy is protected, that least intrusive approach is used, and for the parties to engage the Privacy Commissioner;
  • Ensure that professional recommendations are respected, and that clinical case conferencing only takes place where reasonably required to ascertain needs;
  • Ensure that reapplications and/or cessation or disruption in funding, and/or payment procedures do not negatively impact First Nations children;
  • Increase national consistency and standards, especially with respect to group requests, develop and implement tracking to achieve this, and provide for re-review;
  • Increase specificity and personalization in denial rationales with prompt communication to requestor;
  • Implement "Back to Basics" approach and culture change to determination of Jordan’s Principle requests; and
  • Identify mechanisms for off-reserve capital where required to provide safe, accessible, confidential, and culturally- and age-appropriate spaces to support the delivery of Jordan’s Principle and confirmed through needs assessments and feasibility studies, in the course of negotiating Final Settlement.

The Parties will discuss options for First Nations to take on a larger a role in approving and delivering services, products and supports under Jordan’s Principle. Following a needs assessment and feedback from First Nations and service providers, the Parties will develop an implementation approach for long-term reform of Jordan’s Principle.

Funding Review

An effective periodic funding review will help in determining future funding needs for the FNCFS Program to address ongoing discrimination and prevent its recurrence.

Reform of Indigenous Services Canada

An Expert Advisory Committee will support the design of an independent expert evaluation to identify and provide recommendations to redress internal departmental processes, procedures and practices that contribute to the discrimination identified by the Tribunal. These measures will be complemented by mandatory staff training, revisions in performance metrics for staff that affirm non-discrimination, and other reforms recommended by the evaluation and/or Expert Advisory Committee.

Implementation

On April 1, 2023, Canada will fully implement long-term reform of the FNCFS Program, including the Reformed CFS Funding Approach. Canada will therefore cease to fund actual expenditures as of that date.

Consent Orders Sought from the Tribunal

By March 31, 2022, the Parties will bring a joint motion to the Tribunal to, among other things:

  • Require Canada to fund prevention as of April 1, 2022, based on a formula that multiplies $2,500 by the First Nations population on-reserve and the First Nations population in the Yukon;
  • Require Canada to fund post-majority care at actual costs;
  • Require Canada to assess the resources required to provide assistance to families and/or young adults in identifying supports for needed services for high needs Jordan’s principle recipients past the age of majority;
  • Require Canada to consult with the parties to implement the mandatory cultural competency training and performance commitment for Indigenous Services Canada employees;
  • Require Canada to fund research through the IFSD; and
  • Declare that the term for compensation eligibility for removed children and their caregiving parents or grandparents will begin January 1, 2006, and end March 31, 2022.

By November 30, 2022, after the Final Settlement Agreement is signed, the Parties will bring a joint motion to the Tribunal for an order implementing long term reform measures and for a final order resolving the complaint in the CHRT process and ending the Tribunal’s jurisdiction as of December 31, 2022.

Dispute Resolution

An interim dispute resolution mechanism, led by an "Eminent First Nations Person" (meaning a First Nations person well known to have expertise in the area of dispute resolution), will resolve disputes related to the Tribunal’s orders, major capital, or the Agreement-in-Principle between now and the time the Final Settlement Agreement is signed. The Final Settlement Agreement will include a final dispute resolution mechanism.

Selected Items to be Determined Prior to the Final Settlement Agreement:

  • The subset of indicators from IFSD’s Measuring to Thrive framework that Indigenous Services Canada will report to Parliament;
  • Potential funding for regional technical secretariats as described under the Reformed CFS Funding Approach;
  • The allocation of prevention funding between First Nations and FNCFS service providers;
  • Planning and accountability measures between First Nations and FNCFS service providers to facilitate the capacity of FNCFS agencies and First Nations to undertake this work;
  • Funding for an independent and non-political regional and national network of First Nations children and youth in care and young adults formerly in care;
  • The scope of capital asset categories and collaboration on drafting a major capital guide and an accountability mechanism for major capital projects;
  • As noted above, the form of a binding and enforceable dispute resolution process that shall be First Nations-led, culturally-appropriate and funded by Canada;
  • Steps involved for First Nations and FNCFS service providers to qualify for block funding;
  • How to ensure non-discrimination in Canada’s provision of FNCFS and Jordan’s Principle in year 6 and beyond; and
  • Positive measures to reform Indigenous Services Canada to prevent the recurrence of discrimination.

Compensation

A separate agreement-in-principle was also signed on December 31, 2021 relating to the payment of compensation to resolve class actions between the plaintiffs Xavier Moushoom, the Assembly of First Nations and Zacheus Joseph Trout (respectively, plaintiffs in court file nos. T-402-19, T-141-20 and T-1120-21), and the defendant Canada. The agreement-in-principle on compensation commits to the future payment of $20 billion in compensation to children affected by discrimination in the FNCFS Program and the narrow implementation of Jordan’s Principle, as well as to family members of those children. Those parties will seek to conclude a separate final settlement agreement relating to compensation. The final settlement agreement on compensation will aim to satisfy the Tribunal’s orders on compensation and to settle the AFN-Moushoom and Trout class actions.

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