MKO 22nd LEGISLATIVE GOVERNMENT HOUSE
Annual General Assembly Opaskwayak Cree Nation
September 9, 10, 11, 2003

Background

The Assembly of Manitoba Chiefs signed the Framework Agreement Initiative in December 1994. There are currently three negotiating ‘tables' within the Framework Agreement Initiative. The tables include the Comprehensive (Main), the Education and the Child and Family table. MKO has assumed the lead for the Child and Family table, this table has representation from the three Aboriginal Political Organizations and includes representation from the Federal and Provincial Governments. There are three working groups within the Child and Family table: the Internal and Technical CFS Working Groups and the Joint CFS Working Group.

The Internal Child and Family Working Group is working on developing an Agreement In Principle on Child and Family Matters: the work involves completing research and First Nation position papers for use and reference during the negotiation meetings. The principles and objectives of the Blue Book are used as guides in the negotiation process. It is anticipated the Agreement in Principle will be signed before end of this fiscal year.

Working Group Members

The Internal CFS Working Group members: consists of First Nations representatives:

• Vice Chief Sydney Garrioch, Lead Negotiator, CFS MKO
• Louisa Constant, Social Services Advisor MKO
• Joe Guy Wood, FAI Director MKO
• Karen Anderson, Family Secretariat Director MKO
• Charlene Cook, Administrative Support MKO
• Stuart Wutkke, FAI Director SCO
• Loretta Keeper, Project Manager SCO
• Priscilla McIvor, CFS / FAI Liaison AMC
• David Monias, Executive Director Awasis Agency
• Dave Rundle, Executive Director Anishinaabe CFS
• Alfred Wood, Executive Director (alt.) Island Lake Family Services
• Burma Bushie, Executive Director (alt.) Southeast CFS
• Harold Cochrane, Legal Counsel (as required) D'Arcy & Deacon

he Joint CFS Working Group is the group negotiating the Agreement in Principle on Child and Family Matters. The Joint CFS Working Group consists of Federal, Provincial and First Nations (listed above) representatives:

• Craig Gideon, Lead Negotiator - Federal Table Lead DIAND, Ottawa
• Hector McLeod, Assistant Negotiator DIAND, Ottawa
• Julie Wallace, Manager, FAI DIAND, Manitoba Region
• Jody McFetridge, Legal Counsel (as required) Federal Department of Justice
• Peter Dubienski, Asst. Deputy Minister Family Services & Housing, MB
• Brian Gudmundson, Policy Analyst Aboriginal & Northern Affairs, MB
• Neil Trenholm, Legal Counsel Manitoba Justice
• Gord Hannon, Legal Counsel Manitoba Justice - alternate

Substantive Issues Requiring Further Discussion within the AIP on Child and Family Matters

The Internal CFS Working Group requires further discussion on the following substantive issues which remain outstanding in the current on-going negotiations.

Federal Inherent Right Policy - The federal negotiations mandate is based on their Inherent Rights Policy, Gathering Strength, and other policies. There has been written correspondence between AMC and two former DIAND Ministers confirming that the MFAI falls outside of the Inherent Right Policy. In other words, Canada is not prepared to recognize First Nations' Inherent and Treaty Right to be self-governing as asserted by First Nations. First Nations are of the view the Federal Reps continue to negotiate within the Inherent Right Policy.

Treaty and Inherent Rights - The federal negotiators have stated that the purpose of a self government agreement is to implement practical self government arrangements for First Nations. However, Canada cannot define any rights which might be set out in historic treaties or which might be interpreted as being included as inherent rights in relation to governance.

Legal Status and Capacity - The federal position is that First Nations can have the legal status and capacity of a Natural Person (rather than the capacity of a Government) so that the First Nations Governments have the capacity to enter into agreements, to sue or be sued, to acquire or sell property, to raise or borrow money, and to carry out business. First Nations want the Capacity of a Government as in the past. Currently, the courts have decided First Nations have a sui generis or unique capacity.

Citizenship and Portability of Rights - The determination of citizenship is up to First Nations, but the Federal Government will retain the authority to grant treaty status and Canadian Citizenship. The federal negotiators have stated that citizenship is part of the jurisdictional matter but the application of laws will likely be limited to reserve boundaries.

Ratification - The federal negotiators have indicated that the ratification process will have to be spelled out. For example, in other Self Government Agreements, First Nations did not hold a vote rather First Nations opted-in through a BCR. First Nations also need to agree at the onset what the "minimum threshold" or "critical mass" will be in terms of the number of First Nations that will be required to opt-in, in order to proceed with the Sectoral AIP. In fact, at one time, the Federal Government stated they may be prepared to proceed with one third of First Nations opting-in within Manitoba. As well, there has to be agreement on how First Nations will opt-in at a later time. The issue regarding opting-out will also need to be discussed.

There are two separate areas regarding approval of the AIP, one is the above which refers to the Final Agreement where there is a need to consult all members at the local level and the other is the signing of the AIP to proceed with negotiations to a Final Agreement. AMC Resolution # NOV-2001.06 states the Chiefs in Assembly agree to allow the Grand Chiefs to negotiate a Sectoral Agreement in Principle on Child and Family Matters. Once the AIP is complete, the First Nation approval process will be to have the Grand Chiefs sign.

Aggregation of Jurisdiction - The federal negotiators have outlined the advantages of aggregation on paper for our consideration. The aggregation of jurisdiction refers to economies of scale, where smaller First Nations may give their authority to central organization due to funding, population, etc. The First Nations position is that each First Nation have the choice to decide if they will aggregate their authority to another entity or organization. The Federal Government previously wanted a description of how aggregation would occur before the Agreement in Principle was signed but have since stated the issue could be settled between the AIP stage and Final Agreement.

Harmonization of Laws - The federal government wanted First Nations to spell out the approach we will take with regard to the harmonization of laws. Should any conflict in the laws occur, the parties have to agree which law will prevail. The relationship of laws will need to be determined separate from harmonization of laws. The Province of Manitoba has also stated they would like to see the framework of how this would occur as it will be mainly their laws that will be affected.

Dispute Resolution Mechanisms - The federal negotiators require a dispute resolution mechanism be spelled out for the purpose of addressing issues arising from the agreement. AMC is proposing a Canada / First Nation Commission in the Comprehensive Agreement to address issues arising from the agreements. The Federal Government has stated they have no issue with this approach. There will need to be other dispute resolution mechanisms arranged in other areas of the agreement; for example, in fiscal relations.

Implementation / Capacity Development - An implementation section is required which will detail the implementation plan to include: a process for establishing an implementation committee; the negotiation of the plan; details to be included in the plan, and how often an audit of the implementation of the agreement will occur. The federal government has agreed that there has to be training and capacity building to enhance the capacity of First Nations to assume responsibilities associated with self government. The issues need further discussion as Canada had stated implementation process (training) would only be provided in the beginning and would not be ongoing.

Canadian Charter of Rights and Freedoms - The federal government wants to continue to have the Canadian Constitution and the Charter of Rights and Freedoms to apply to all First Nations and residents on reserve. At this time, Canada is willing to discuss what First Nations want included in a First Nation Charter but would find it difficult to agree to remove their own Charter from any Agreement. There are a few options available to First Nations: on is to remain silent and not address the issue in the AIP or develop a clause that would ensure there is room for change if a future legal ruling was favorable to First Nations. More research is needed regarding the Canadian Charter.

Scope of Law Making Power in relation to CFS - The federal government wants First Nations to define and discuss the specific scope of law making power that First Nations will exercise in relation to child and family matters. This is being discussed at the Working Groups. Canada is wanting to limit the scope to Child Protection and feels the scope of jurisdiction in the AIP is too broad. First Nations want to make laws and have jurisdiction over all child and family matters, this include issues outside child protection such as marriage, daycare and addictions and treatment.

Governance - The federal government require a description of the broad structure of all levels of First Nations Governments and the constitutional requirements of each Governments' Constitutions. The Federal Government have provided a list that is the minimum requirements that Canada would need to see in a First Nations constitution. First Nations have stated each First Nation would develop their own constitutions and these could be written or unwritten.

Communications with First Nation Communities

As directed by the Chiefs in the last fiscal year, the Internal Child and Family Working Group members conducted presentations in their member Communities, Organizations and Child and Family Agencies. The feedback from the leadership and communities has been positive and were directed to continue to advance the aspirations of our people to be self governing over child and family matters.

MKO Project staff have been providing the MKO First Nation Leadership, communities and membership information on the progress within the Jurisdiction Project through various means which include placing articles in the MKO Nations newsletter which is distributed on a monthly basis, staff are scheduled on the ‘MKO Weekly Live' NCI radio broadcast which airs on Mondays. Also, information packages and updated reports were provided to First Nations and at presentations in communities, to the Northern First Nations CFS Agency annual meetings and at the Northern CFS Agency Board meetings. The staff will continue to ensure all membership are aware of the activities of the Jurisdiction Project and the development of the Agreement in Principle on Child and Family Matters. The Southern Chiefs Organization provided updates and presentations to their member First Nations and Child and Family Agencies. The SCO project has also held working sessions with community members to obtain views of the goals and objectives of the project.

Status of Activities

Provincial Involvement - The federal position is that the province must be a party in the negotiations because the province has constitutional responsibility over CFS. They have stated the outcome of our negotiations can be two agreements but the province must be at the negotiations table. The federal negotiators have stated that the issue of provincial involvement must be addressed prior to proceeding with any further detailing on areas such as jurisdiction. In September 2002, Provincial representatives began to attend the Joint CFS Working Group meetings.

The Province has been attending the Joint CFS Working Group meetings on a regular basis. For the most part, the Provincial Involvement has been positive for first Nations. They are in support of some of the First Nation positions such as double bi-lateral agreements between First Nations and Federal Government and the Federal Government and Province and are in agreement to discuss off-reserve jurisdiction. They have also stated the Federal Government must take the lead role in the negotiations in relation to the Federal and Provincial Governments. The Province have stated they are very interested with the Harmonization of Laws, Aggregation and Standards sections of the agreement as these will impact their government as the Provincial Laws on Child and Family will be affected.

The Internal All Table Leads (Child and Family, Education and Comprehensive) - As the CFS Working Group Lead, Vice Chief Sydney Garrioch participates in the ‘All Tables Leads' discussions and undertakings on issues in relation to the process and negotiations. This is a forum for the ‘tables' to bring forward concerns from the on-going negotiations and to ensure each table is taking the same position on issues within the AIP negotiations. This has been positive for the CFS Table as the Working Group can be consistent with the other tables and discuss the negotiations at the different tables.

Briefing Session with three Grand Chiefs - A meeting In November 2001 was held to discuss the Internal CFS Working Group's issues and to request delegated authority from the Grand Chiefs to proceed independently with negotiations on the Sectoral Agreement in Principle on Child and Family Matters, the request included completing and negotiating workplans and budgets. The three Grand Chiefs had agreed to the following;

That the three Grand Chiefs of AMC, MKO and SCO endorses the recommendation for the Internal Child and Family Services Working Group to develop and negotiate a Sectoral Agreement-in-Principle on Child and Family Matters; subject to approval by CCOFAI; consistent with existing AMC processes and structure and consistent with the objectives of the FAI to conclude a Comprehensive Agreement-in-Principle.

It is the understanding that Vice Chief Garrioch and the Internal CFS Working Group have the authority to negotiate a Sectoral AIP on Child and Family Matters with the DIAND Negotiators. The Child and Family Table will meet with the three Grand Chiefs to provide an update of the developments of the Internal and Joint CFS Working Groups.

A further briefing session was held with the three Grand Chiefs on January 10, 2003 to provide an update of the activities of the Child and Family Table. The main issue discussed at that time was the approval and endorsement of the Child and Family Agreement in Principle, the AMC Resolution #Nov.2001.06 states the Grand Chiefs of AMC, MKO and SCO have the authority to sign the Agreement in Principle. The federal position is that there may be a need for a BCR from each First Nation, this issue has not yet been determined. In May 2002, a further AMC Resolution (May-03.02) was passed at a Special Chiefs Assembly directing the AMC to continue to negotiate the Agreements in Principle and provided support to the FAI negotiating tables.

Accomplishments and Next Steps

The following documents were completed and submitted to the AMC / FAI Legal Team during the last fiscal year:

A. Two draft Table of Contents
B. Draft # 2 Concept Paper on Jurisdiction
C. Federal Response to First Nations Concept Paper on Jurisdiction
D. Amalgamated First Nations and Federal Government Positions on Jurisdiction
E. Draft # 5 Concept Paper on Governance
F. Draft # 3 Circular Governance Conceptual Model on First Nations Family Law
G. Concept Paper on Fiscal Relations in Relation to CFS completed by Romanow & Bear Consultants
H. Responses to Questions on Fiscal Relations (July 9,2001) I. Four drafts of the CFS Agreement in Principle (dated September 19, 2001, October 2, 2001, July 5, 2002, November 7, 2002 and the latest draft tabled dated March 25, 2003)

The following documents were also submitted to the federal negotiators in the last fiscal year as per the Joint Working Group Terms of Reference: Documents A, B, C, D, E & F - from the list above.

The last rolling draft of the Agreement in Principle dated March 25, 2003 has been submitted to the Federal and Provincial Representatives. The Child and Family Table did not receive any comments until May 2003 as the Federal Government did not want to provide their review and comments until they could review comments from the Manitoba representatives. Negotiations are continuing between all the parties and substantial progress is being made.

The three tables are also continuing to meet and discuss First Nation positions and comments from the Federal and Provincial parties. This is to ensure the First Nations are consistent in their positions and to ensure Canada does not take different positions at different tables. There has been instances where the Federal representatives have made statements that were not accurate after discussion with the other negotiating tables. It is important the three tables continue this dialogue. The Joint Child and Family Working Group is optimistic the Agreement in Principle will be complete and ready for signing within the next few months.

The Internal CFS Working Group has completed the Internal and Joint Child and Family Workplans for the 2003-2004 fiscal year. The workplans were complete in March 2003. MKO and SCO have also completed and submitted budgets to accompany the workplans. There has been an increase of funding for the entire FAI Process and the Child and Family Table will likely receive an increase, the 2003-2004 workplans will be revised to reflect the funding change.

The Internal CFS Working Group members are continuing to research and develop First Nation position papers on the outstanding substantive issues for use during the negotiations of the Agreement in Principle on Child and Family. The working group members from the three organizations have been assigned issues to collect information and begin to develop position papers from a First Nation perspective.

The Internal CFS Working Group and any sub-committees will continue to meet and compile information and develop the chapters of the draft Sectoral Agreement in Principle on Child and Family Matters. The Working Group had anticipated that the Agreement in Principle on Child and Family would be complete by March 31, 2003. The negotiations of the issues has held up progress and the Internal Working Group is optimistic the AIP can be completed and signed as soon as possible.

The Joint CFS Working Group will begin to develop a plan in regards to the Pre-Approval Activities (Schedule A) of the Joint CFS Workplan. A t the beginning of this year, it was unsure if this activity would occur and with the increase in funding, the plans will be finalized with the Joint Working Group.

The Internal Working Group members will continue to keep their respective Leadership, Chiefs Committees, Organizations and Members informed of the process and progress of the on-going negotiations.