AFN accused of second guessing chiefs with outside legal opinion on child welfare resolutions

The Assembly of First Nations (AFN) is being accused of second guessing its own chiefs through an outside legal review of the decision to reject a multibillion-dollar offer to reform the child welfare system in October, according to two second opinions obtained by CBC Indigenous.

A draft of the AFN-commissioned opinion was completed on Nov. 30 by law firm Fasken Martineau DuMoulin, which argued two resolutions rejecting the deal "are null and void" and "cannot be implemented," says a review sought by the assembly's British Columbia Regional Chief Terry Teegee.

The Fasken author argued the resolutions were "ultra vires the First Nations-in-Assembly," meaning the chiefs exceeded their power and jurisdiction by breaching the AFN's charter and corporate bylaws, says the B.C. region's review, which rejected that conclusion.

"It is my view that the author of the draft opinion draws black and white conclusions that do not adequately consider key aspects of the AFN governance structure," wrote Darren J. Haines, of Vancouver law firm Ratcliff, in a letter to Teegee.

Chiefs are eligible to participate in AFN assemblies, where they or their proxies adopt resolutions directing the national advocacy organization's executive committee, which comprises the regional and national chiefs who in turn direct the secretariat. 

At a special Calgary assembly in October, delegates rejected a 10-year, $47.8-billion proposal to reform the First Nations child and family services program, representing a federal offer to settle a nearly 18-year-old discrimination case at the Canadian Human Rights Tribunal.

The AFN's draft opinion did not fully consider the distinction between the actual assembly, an unincorporated association where chiefs exercise their right to self-determination, and the assembly's secretariat, a not-for-profit corporation that provides administrative and technical support, wrote Haines.

"Although there are certain elements in the resolutions which may be inconsistent with AFN's governance structure and/or present practical implementation challenges, the resolutions are not void at law."

CBC has not obtained the Fasken opinion, and the AFN would not provide a copy nor make a spokesperson available for an interview. The organization said via statement that the opinions formed by external counsel do not reflect the AFN's view.

"The AFN's legal review was part of its due diligence to support the effective implementation of these resolutions," said AFN CEO Andrew Bisson in the statement. 

"The legal and technical reviews were conducted in good faith, not to undermine the chiefs' direction. The chiefs have provided clear direction, and the AFN is committed to following that direction."

'Questioning the wisdom' of direction

A different review says the AFN did not provide its draft opinion to the chiefs but used it to "advocate for partisan changes to already-passed resolutions" in a bid to modify the chiefs' direction.

"Instead of implementing that direction, it appears to us that the AFN executive arm is questioning the wisdom of the First Nations-in-Assembly's direction," wrote Scott A. Smith and Keith Brown of law firm Aird & Berlis on Dec. 2.

This legal opinion was sought by Mary Teegee, chair of Our Children Our Way Society and board member of the First Nations Child and Family Caring Society, who was a chief's proxy during both the October and December assemblies.

Cindy Blackstock, the executive director at the caring society and co-complainant with AFN in the original human rights complaint, said she doesn't give the AFN opinion much weight, particularly since chiefs haven't seen it.

"I did find it concerning, I guess, that any decision would be cited to the chiefs as a reason for not following their direction, but that there wouldn't be a release of that document to inform them," she said.

Chiefs met in Ottawa last week for their annual December gathering, just three days after the date of the AFN's draft opinion, where the future of the child welfare system remained a major agenda item.

The Ratcliff review is also dated Dec. 2, one day before the Ottawa meeting began, and the author acknowledged the second opinion couldn't be fully researched given "the highly time sensitive" nature of the issue.

Emails asked for changes

The Aird & Berlis review also concluded that the AFN opinion relied too heavily on Canadian corporate law to shackle First Nations sovereignty to direct their own organization on any matter they see fit.

"Further, it is inappropriate for the AFN to seek, and not disclose, legal opinions which are then cited to attempt to second-guess decisions already made," the lawyers wrote in a memo.

These reviewers had not seen the Fasken draft opinion, rather they based the assessment on emails summarizing the points sent by Amber Potts, AFN's vice president, strategic policy integration.

CBC News has not obtained these emails, but they are quoted in the memo. Potts referred a request for comment to the AFN's communications director.

The memo says Potts on Nov. 22 emailed the mover and seconder of a resolution slated for debate at the December assembly, Resolution 38, which asked the chiefs to continue with the renegotiation. In rejecting the deal, chiefs voted to reorganize their negotiating side by creating a new Chiefs' Children's Commission to lead the talks.

Potts argued the AFN's charter would have to be revised for this and warned there was no funding nor any guarantee Canada would pay for the commission, according to the review, which says Potts recommended the commission be changed into a chiefs committee reporting to the executive.

The Aird & Berlis opinion argued the executive committee and secretariat could be seen as trying to "retroactively unwind expressions of the sovereign will of the First Nations" on child and family services.

"In our view, the position advanced in Ms. Potts' e-mails represents the AFN attempting to do indirectly what the First Nations-in-Assembly have already expressly rejected," wrote Smith and Brown.

Bisson said the AFN has an obligation to keep its executive committee fully informed and that technical and legal considerations are also always flagged for resolution movers and seconders.

"It is not unusual for the AFN to conduct technical and legal reviews of resolutions passed by First Nations-in-Assembly."

Resolution 38 passed last week as the chiefs voted to continue renegotiating the deal through the new commission.