First Nations leaders say they are being “gagged” by the federal government because it’s asking them to sign confidentiality agreements before Ottawa will negotiate funding deals under Canada’s new child and family welfare law.

Toronto Star: OTTAWA — First Nations leaders say they are being “gagged” by the federal government because it’s asking them to sign confidentiality agreements before Ottawa will negotiate funding deals under Canada’s new child and family welfare law. 

Neil Perley, chief operating officer at Tobique Child and Family Services Agency Inc., said Neqotkuk (Tobique) First Nation was asked by Indigenous Services Canada to sign a nondisclosure agreement before negotiating the co-ordination and fiscal agreements required to hand jurisdiction of child and family welfare over to its community. 

The federal government denies it has asked First Nations to sign nondisclosure agreements, but acknowledged asking them to sign confidentiality agreements while negotiating, which it says are not mandatory or “permanently binding.”

But child welfare leaders say this distinction is not clear, and that Ottawa’s negotiation practices are preventing them from fully exercising their jurisdiction, and unfairly prevent First Nations from speaking to one another when they are all trying to achieve the same goals.

“It’s infringing on our inherent right to (self-govern) ourselves with respect to child and family services,” Perley said, calling the tactic “disheartening.”

“There are other First Nations across Canada that are having a hard time reaching their fiscal agreement, but they can’t reach out to anybody else because of this nondisclosure agreement that they have.”

A federal law passed in 2019 gives Indigenous nations the sole authority over child and family services within their communities through self-government powers. Nations that wish to use these powers must establish their own legislation and sign co-ordination agreements with the federal government.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, told the Star she has heard of many cases in which the federal government asked First Nations to sign nondisclosure agreements. She described the tactic as a “colonial rollover” that isolates First Nations from sharing information with each other.

“The government of Canada is the group that negotiates with all these different nations when it comes to rights, so we need to make sure that we’re sharing best practices and experiences, and learning the lessons from things that have not worked,” Blackstock said.

“They shouldn’t be gagged from sharing information, and information that’s material to their nation should not be kept from them. That’s inconsistent with the informed part of free, prior and informed consent.”

Indigenous Services Canada spokesperson Ryan Tyndall said the federal government “suggests” confidentiality agreements as a standard practice with all Indigenous governing bodies while negotiating co-ordination agreements as part of their “communication protocols,” after they were “regularly requested by Indigenous governing bodies and provinces/territories in the past.”

Tyndall said the government will negotiate with First Nations that don’t sign confidentiality agreements.

But Blackstock said “an ask can feel like a demand,” and that the historic power imbalance between First Nations and Canada makes First Nations feel they don’t have any choice when presented with a nondisclosure or confidentiality agreement.

“If it’s not required, why even ask for it?” she said.

Perley said Tobique First Nation began drafting its child and family welfare legislation in 2019 and gave notice to the federal government of its intentions to negotiate an agreement in June 2022. 

In its initial discussions with Indigenous Services Canada , he said Tobique First Nation was told it would be expected to sign a nondisclosure agreement before continuing negotiations .

Perley said Tobique declined to sign the agreement, saying it wanted full transparency in the process, including making videos of the meetings to create a historical record of the negotiations for the community.

“They weren’t real keen on pursuing or sitting down with us until we agreed to put in a ‘without prejudice’ clause in our terms and conditions,” he said, meaning anything shared or communicated during the negotiation process could not be used in future litigation.

Perley said Tobique has been negotiating with the government over the final contribution agreement since December 2022.

In 2016, the Canadian Human Rights Tribunal ruled that Canada’s child and family welfare system discriminated against Indigenous children living on reserves and required they ”get the services they need when they need them” through the application of what is now called Jordan’s Principle.

In October, the Federal Court approved a $23-billion settlement for families who had experienced racial discrimination through the child welfare system, nearly two decades after the First Nations Child and Family Caring Society first filed its complaint to the tribunal in 2007.

Joy SpearChief-Morris is an Ottawa-based reporter covering federal politics and Indigenous issues for the Star. Reach her via email: jspearchiefmorris@thestar.ca