Confidentiality agreements a ‘red flag’ in exercising Bill C-92, says Indigenous leader

Richard Gray is warning Indigenous communities against signing confidentiality agreements with the government as they reclaim authority over their child welfare systems under Bill C-92 — also known as the Act respecting First Nations, Inuit and Métis children, youth and families.

Gray is the social services manager with the First Nations of Quebec and Labrador Health and Social Services Commission (FNQLHSSC), which monitors and provides oversight to ensure Indigenous groups and communities have access to “culturally-appropriate and preventive health and social services programs,” according to their website. 

“This is a huge problem and we can’t allow the feds to utilize these confidentiality agreements in negotiations or discussions,” he said at a virtual gathering focused on the implementation of the Act, hosted on Feb. 9 by the Assembly of First Nations (AFN).

The Act establishes a framework for First Nations, Métis and Inuit communities to exercise their authority and create their own child welfare laws. 

Through the Act, Indigenous governing bodies can either notify the federal government of their intent to establish their own laws, or they can request to “enter into a tripartite coordination agreement with [Indigenous Services Canada] and relevant provincial or territorial governments” — as previously reported by IndigiNews.

Gray says he knows of at least one instance where a confidentiality agreement was signed as part of a coordination agreement — between Wabaseemoong Independent Nations, Canada and the province of Ontario. 

He says he’s worried that confidentiality agreements could “really put a damper on our ability to share information and to give strategies and to advise and counsel First Nations communities that are interested in following this road.”

“Canada will have all the information, and once again, First Nations are left stuck on their own.”

‘Stuck on their own’

Since the Bill came into force on Jan. 1, 2020, nine Nations have sent notice and 17 Nations have requested to enter into coordination agreements discussions, according to Indigenous Services Canada (ISC). 

In an interview with IndigiNews, Gray says the practice of signing confidentiality agreements is “almost a bit of a contradictory approach” because the government is “supposed to be working with the First Nations at a national level and regional level to support the implementation of coordination agreements.”

“If you sign one of these things, you can’t share any information with the AFN [and] you can’t share any information with a First Nations community about things that are happening in terms of your coordination agreement discussion,” he says.

As part of the Act’s development, the AFN and ISC signed a protocol agreement in June of 2020. 

The agreement established a structure to support the implementation of Bill C-92, according to a news release by the Assembly of First Nations Quebec-Labrador (AFNQL) and FNQLHSSC.

“This agreement is a crucial step that should allow First Nations to develop effective long-term plans. This protocol ensures that Canada will work with our governments, but that the implementation of Bill C-92 will be led by First Nations,” says Ghislain Picard, regional chief of the AFNQL.

But for Gray, not being able to share how nations are doing at coordination tables puts them at a disadvantage.

He says that the federal government knows everything that nations are sharing while the nations themselves, if they sign a confidentiality agreement, cannot speak with each other on how they are working to exercise jurisdiction. 

“Collectively, this is something that affects First Nations all across Canada. Why would we get into these processes where we’re hiding our discussions? Or not showing any transparency about how we’re going to work with our communities?” asks Gray.

“First Nations are going to try to get the best deals possible,” he says. “I think that one of the ways to achieve that is by sharing as much information as possible amongst First Nations.”

Gray says he wants the federal and provincial governments to respect this, “rather than trying to impose their processes on us.” 

“We’ve got to break these cycles or these patterns that [Indigenous Services Canada] uses and open up new processes and new ways of doing things to help one another.”

IndigiNews followed up with both Indigenous Services Canada and Wabaseemoong Child Welfare Authority for comment, but did not receive a response by the time this article was published. 

The virtual gathering is part of a series on sharing best practices for implementing the Act respecting First Nations, Inuit and Métis children, youth and families, also known as Bill C-92. Anyone can register to attend and there is no cost. The next session is March 2, 2021.