The 1965 Indian Welfare
Agreement is a bilateral agreement between the Province of Ontario and the
Government of Canada. It requires Indigenous and Northern Affairs Canada
to reimburse Ontario 93 cents for every dollar of services provided
in social assistance, child and family services, child care, and
homemaking.
There are several reasons
that this is a problematic agreement, first of which being that it was
negotiated bi-laterally between the governments of Canada and Ontario with no
input from First Nations. It also is outdated, limits innovative programming,
and fails to live up to nation-to-nation relationships. In 2016 the AOCC
resolved to call for its replacement (Resolution 12/16).
In practice, the Indian
Welfare Agreement (IWA) has been demonstrably harmful for First Nations.
Recently the Canadian Human Rights Tribunal's decision in First Nations Child & Family Caring Society
of Canada et al. v. Attorney General of Canada (representing the Minister of
Indigenous and Northern Affairs Canada) ruled that First Nations children are subject to blatant
disparity in access to funding and services. The decision read in part:
Indigenous
Affairs and Northern Affairs Canada’s (“INAC”) design, management and control
of the First Nations Child and Family Services Program (“the FNCFS Program”),
along with its corresponding funding formulas and other related
provincial/territorial agreements, results in denials of services and creates
numerous adverse impacts for many First Nations children and families living on
reserve.
In section 3 of the
decision, INAC was ordered to reform the 1965 Agreement while broadening the
definition of Jordan's Principle. Responding to this decision, the Chiefs in
Assembly released the above mentioned Resolution 12/16 instructing COO to
explore options to replace the Agreement and implement a new mechanism that
would be consistent with Section 35 of the Constitution Act, would respect the
Indigenous right to self-governance, and would be built "with full
participation and final consent of the First Nations in Ontario."
Much of the recent coverage of the Indian Welfare Agreement has justifiably focused on child welfare especially relative to the CHRC rulings, but it is important to remember that the agreement is broader than this coverage may suggest.
MIRR has indicated that the IWA has tied their hands as well. The question is one of definitions - while the IWA holds INAC responsible for "child welfare," what exactly are the parameters that fall in that definition? In practice, this leads to a reticence to invest in innovative programming provincially for fear that it will come entirely from the provincial budget. This, again, is symptomatic of the problems of a bilateral funding agreement that did not consult with First Nations in its formulation.
Next Steps
Efforts towards replacing
the IWA are ongoing. The Ministry of Community and Social Services has a
one-year mandate to pursue replacing the agreement, and First Nations are using
that time to establish new mechanisms for the federal government to fulfill its
treaty obligations.
Meetings with the PTOs,
COO, and the Ontario and Federal governments are working towards resolution of
the matter. Bilateral discussions are being held at the PTO level, with Nishnawbe
Aski Nation specifically having indicated that the government of Canada would
likely be open to negotiating concerning the IWA. By the fall of 2017, Ontario
hopes to be able to identify options for children’s tripartite funding
approaches, which could ultimately replace the IWA.
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