AFN March 3, 2025, Affidavit of Amber Potts submitted to the Tribunal re Long-Term Reform
Press Release
March 3, 2025
I, AMBER POTTS, of the City of Ottawa, in the Province of Ontario, AFFIRM:
1. I am the Vice-President of Strategic Policy Integration for the Assembly of First Nations (AFN), a co-complainant in this matter and, in this capacity, I have personal knowledge of the matters to which I hereinafter affirm, unless the matters are stated to be on my information and belief, in which case, I verily believe them to be true.
1. I have been working at the AFN since 2017 and I’ve held several senior management positions, including acting as the Chief Executive Officer, the Senior Director of the
Social Branch, as well as the Director of Policy and Research Coordination. Before joining the AFN, I spent more than twenty (20) years as a federal public servant, where I worked for Indigenous and Northern Affairs Canada and Human Resources and Skills Development Canada.
3. The AFN is a not-for-profit corporation, incorporated pursuant to the Canada Not-for-profit Corporations Act, S.C. 2009, c. 23. First and foremost, it is a national advocacy organization for First Nations across Canada.
3. The AFN advances the aspirations of First Nations in Canada, which includes more than 1,048,400 people living in 634 First Nations communities and in cities and towns across the country. The AFN is mandated to protect the rights and interests of First Nations peoples in Canada, as set out in its Charter.
3. The AFN functions according to a democratic process. At least twice a year, the Chiefs of all member First Nations across Canada gather to examine and vote on issues of interest to their constituents. Together, these representatives are referred to as the “First Nations-in-Assembly.” They provide direction to the AFN and define its mandate by way of formal Resolutions.
3. The AFN Executive Committee, which also functions as the Board of Directors for the AFN Secretariat, is comprised of the AFN’s Regional Chiefs and the National Chief and is responsible for implementing the directions of the First Nations-in-Assembly, as well as tending to the regular operations of the AFN further to their Charter derived responsibilities and authorities.
3. The AFN has been actively involved in the child welfare space and the proceedings before the Tribunal for a significant period time, culminating in the Tribunal’s landmark decisions on the Merits and Compensation (2016 CHRT 2 and 2019 CHRT 39). The following outlines the AFN’s participation in advancing long-term reform efforts of the First Nations Child and Family Services (“FNCFS”) Program.
The Consultation Protocol
8. Further to the directions of the Panel in 2018 CHRT 4, the AFN, along with the First Nations Child and Family Caring Society of Canada (“Caring Society”), Canada, the Chiefs of Ontario (“COO”), the Nishnawbe Aski Nation (“NAN”) and the Canadian Human Rights Commission (the “Commission”) engaged on the development of a Consultation Protocol, which was completed by these parties on March 2, 2018.
8. The Consultation Protocol established funding commitments to facilitate the parties efforts, and the creation of a Consultation Committee and its role in overseeing the development and implementation of immediate relief measures, noting that said role would be extended to mid and long term relief measures unless otherwise agreed by the parties. The Consultation Protocol further noted that as the Tribunal had yet to rule on mid and long term relief issues, a final Protocol on same may be premature, however provided room for the Consultation Protocol to be amended by the parties for the purposes of its application to mid and long term relief.
Mediation (1)
10. The Consultation Committee met regularly, until in and around December of 2020, at which point in time the AFN, Caring Society and Canada entered into mediation before the Honourable Justice Leonard Mandamin following the Canadian Human Rights Tribunal decision in 2019 CHRT 39 (“Compensation Decision”) which was released in September of 2019. The scope of the mediation, the discussions of which were and remain privileged, sought to resolve both the issue of compensation, as well as long-term reform of the FNCFS Program.
10. Intensive mediation took place regularly before Justice Mandamin, with the AFN participating in same with the Caring Society and Canada at the long-term reform table from December 2020 until in and around September of 2021. At said time, the AFN Executive Committee was asked to consider potential terms of resolution of relating to compensation and rejected same. The mediation before Justice Mandamin was paused in the interim, with the Consultation Committee engaging in its last recorded meeting in or around October of 2021.
12. During this period of time, the AFN and other parties to the proceedings before the CHRT also continued to engage on supporting efforts derived from the Panel’s capital order (2021 CHRT 41).
12. Parallel to these processes, Canada had proceeded with its judicial review of the Tribunal’s Compensation Decision, the hearing of which proceeded in June of 2021. The Federal Court released its decision on the matter in September of 2021, upholding the Tribunal’s Compensation Decision. Canada, while filing for judicial review, highlighted its intention publicly to seek a resolution of Compensation and Long-Term reform by way of Agreement by December of 2021.
Mediation (2) and the Agreement-in-Principle
14. Further to Canada’s commitments, the AFN, Caring Society and Canada, joined by COO and NAN, thereafter engaged into a second round of intensive mediation on the issue of long-term reform, which proceed in parallel to discussions regarding compensation. These sessions were led by the Honourable Justice Murray Sinclar, another eminent First Nations person, and the parties engaged in an intensive mediation schedule with an eye to reaching some level of agreement on the issue of both compensation and long-term reform by the December deadline.
14. Ultimately, the Agreement-in-Principle on long-term reform of the FNCFS Program (“AIP”) was endorsed by each of the parties to the mediation on December 31, 2021, which reflected a $19.807 billion dollar commitment by the Government of Canada and the broad strokes which would inform ongoing negotiations between the parties to the AIP in developing a Final Settlement Agreement. While the full AIP was not made public, an Executive Summary was, outlining the Parties intention that it would act as a framework for the long-term reform of the FNCFS Program, i.e. the basis for a comprehensive settlement and necessary actions. The AIP also provided for capacity for the parties’ participation, including funding by Canada for the necessary legal expertise and other associated participation costs. The AIP also contemplated a Final Settlement Agreement being finalized by December 31, 2022.
Post-AIP Discussions and Engagement
16. Following the execution of the AIP, the AFN, Caring Society, Canada, COO and NAN (the “AIP Parties”) launched into regular settlement privileged discussions and negotiations relating to terms associated with a Draft Final Settlement Agreement. Said discussions occurred over the full 2022 calendar year. As part of these efforts, and further to the commitments under the AIP, the AIP Parties endorsed a joint-motion before the Tribunal culminating in the consent order as provided for within 2022 CHRT 8. During 2022, the AFN also proceeded in both regional and national level engagements in relation to the ongoing work based on the AIP.
16. With respect to regional engagement, the AFN provided each of the AFN regions with funding to conduct regional engagement on long-term reform of the FNCFS Program and Jordan’s Principle in 2022. These engagements and reports informed the AFN’s positions on long-term reform. The AFN participated in several of the regional engagement sessions during 2022, both virtually and in-person, to share information about long-term reform, hear input from leadership and technicians and identify next steps. To support engagements, the AFN developed a Workbook providing an overview of long-term reform and providing questions for consideration. Several regions, technicians and working groups provided feedback utilizing the Workbook to inform the AFN’s positions on long-term reform.
16. With respect to National Engagement, on October 18-20, 2022, the AFN hosted the “Virtual National Townhall on First Nations Child and Family Services and Jordan’s Principle Long-Term Reform”. The Townhall provided First Nations leadership and their technicians with information about long-term reform of the FNCFS Program and Jordan’s Principle, including goals, priorities and next steps, and facilitated feedback from First Nations to inform the AFN’s ongoing efforts in relation to the development of a Final Settlement Agreement. Speakers at the Townhall included representatives of the AFN, Caring Society, Indigenous Services Canada, the Institute for Fiscal Studies and Democracy (IFSD), and Youth and Elders.
16. In July 2022, at the AFN Annual General Assembly, the AFN held plenary and dialogue sessions on long-term reform, and held further sessions at the December 2022 Special Chiefs Assembly. These plenary sessions provided opportunities for
the AFN to share information on the state of negotiations and related research, as well as for First Nations leadership and their technicians to provide feedback on the path forward.
20. At the December 2022 SCA, the Chiefs in Assembly provided further direction by way of mandate to the AFN as it pertained to long-term reform of the FNCFS Program and Jordan’s Principle by way of Resolution 40/2022 To Ensure Quality of Life to the First Nations Child and Family Services Program and Jordan’s Principle, which reflected on the AIP being signed as “a framework for the negotiation of a Final Settlement Agreement on First Nations child and family services, Jordan’s Principle, and the reform of Indigenous Services Canada. While providing direction on some long-term reform measures, it also highlighted a desire the creation of evidence and policy-based options for the long-term reform of Jordan’s Principle, and returning to the First Nations-in-Assembly for review and approval. It further called on Canada to extend the timeframe for the signing of a Final Settlement Agreement on long-term reform. A copy of Resolution 40/2022 is attached hereto as
Exhibit “A”.
20. As the AIP Parties continued to work towards a Final Settlement Agreement on long-term reform, Canada secured a mandate extending the negotiations to March 31, 2023.
Bifurcation and a new negotiation mandate
22. While the negotiations continued to proceed into the beginning of 2023, the Caring Society and the AFN ultimately advised the parties in March of 2023 of a proposed redirection of the long-term reform negotiations, proposing the bifurcation of long-term reform of Jordan’s Principle and of the FNCFS Program. The Joint-Proposal reflected on the mandates of securing evidence informed solutions for Jordan’s Principle, as noted in Resolution 40/2022. As the evidence behind reform relating to the FNCFS Program was more advanced than Jordan’s Principle, it was proposed that efforts should be concentrated on securing a Final Settlement Agreement on
FNCFS, after which the parties could focus on Jordan’s Principle once additional evidence became available further to the ongoing work of the IFSD.
23. The AIP Parties were advised that Canada would have to seek out a new mandate on long-term reform as a result of the Joint-Proposal on bifurcation. While such a mandate was sought, the AIP Parties continued to meet regularly in an effort to push matters forward that were not necessarily subject to the obtainment of a revised mandate by Canada.
23. The AIP Parties continued to meet regularly until October of 2023, at which point Canada advised that it had secured a mandate to move ahead on the bifurcation of Jordan’s Principle, and seek a Final Settlement Agreement on long-term reform of the FNCFS Program by March 31, 2024, and Jordan’s Principle by December 31, 2024.
23. While the AIP Parties contemplated efforts at moving forward with negotiations on a Final Settlement Agreement, it became apparent that issues were arising with respect to a backlog of cases in Jordan’s Principle. The Caring Society announced in December of 2023 that it would removing itself from the AIP process in order to advance its non-compliance motion on Jordan’s Principle, which was filed in or around December 12, 2023.
Intensive FSA Negotiations
26. While the AIP Parties had always made efforts to meet regularly to advance the work associated with a Final Settlement Agreement, it became apparent that an extremely intensive schedule of negotiations would be necessary to achieve a Final Settlement Agreement and expedite resolution in the best interest of First Nations children and families, with consideration also being given for the window of Canada’s revised mandate and for the AFN’s governance obligations to seek approval from the First Nations-in-Assembly.
26. Following the Caring Society’s withdrawal from negotiations under the AIP process, the remaining AIP Parties (AFN, Canada, COO and NAN) prepared an exhaustive
schedule for negotiations, culminating in full week-long sessions at times between January and April 2024, and additional discussions between May and July of 2024.
28. The Caring Society advised the remaining AIP Parties that it remained available for discussion on the Final Settlement Agreement at various times during these intensive negotiations, but affirmed that it would not return under the rubric of the AIP, which was not agreeable to the remaining AIP Parties who had been operating under that settlement privileged space for over 2 years. The door was left open for the Caring Society’s return under the terms of the AIP, and it was provided with copies of the draft agendas associated with the ongoing negotiations between the remaining AIP Parties on a weekly basis, with a standing invitation to attend to provide perspectives. Further, a copy of the Draft Final Settlement Agreement, which was renamed the Draft Final Agreement, was provided to the Caring Society for consideration and comment in or around April 12, 2024.
28. I have been advised by AFN counsel, and do verily believe, that the Caring Society expressed its views to Canada during this period of an ongoing obligation for Canada to engage the Caring Society in ongoing discussions further to the Consultation Protocol and the CHRT’s consultation orders in 2018 CHRT 4. The Caring Society also sought to reconvene the Consultation Committee, and a response was provided by COO on behalf of the remaining AIP Parties identifying that the First Nations Parties (COO, NAN and the AFN) and Canada were of the view that the Consultation Process identified in the Consultation Protocol had evolved and been superseded by the AIP’s negotiation process (See Exhibit “C” of the Affidavit of Katherine Quintana-James affirmed the13th day of February, 2025).
28. The Draft Final Agreement was finalized and announced on July 11, 2024, with First Nations being notified that engagements would be taking place during the course of the summer of 2024. The Draft Final Agreement remained subject to approval by the First Nations-in-Assembly further to the direction from the First Nations-in-Assembly in Resolution 86-2023 To Ensure Quality of Life to the First Nations Child and Family Services Program and Jordan’s Principle, which called for regional engagement on the Draft Final Agreement and its approval by the First Nations-in-
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