Is devolution dead?

This article was published 12/12/2015 (2146 days ago), so information in it may no longer be current.

Is devolution dead?

After years of lurching from crisis to crisis — the murder of children, spending scandals, damning inquiries and kids housed in hotels — it may be time to acknowledge what many in the child-welfare system, from high-level posts to the front lines, believe.

"Devolution is a ship that’s listing, and there’s no safe shore to go to," said one former high-level provincial official.

"It’s stuttering" said a First Nations leader who helped oversee an aboriginal authority.

"In terms of the basic premise, no, devolution hasn’t been successful," said a senior child-welfare executive.

Devolution, promised 15 years ago, was meant to hand management of child-welfare services to First Nations and Métis people. Indigenous people were supposed to regain control of their children, the child-welfare agencies that help them and the culturally appropriate services they get.

But many First Nations leaders argue the system, enshrined in legislation in 2003, never evolved. Instead, it’s still a "white system" strangled by rules, micromanaged from the family services minister’s office and responsible for exponentially more indigenous children being taken from their parents.

"I saw them setting us up as a smoke-and-mirrors game to try and make it look like devolution is happening when in fact devolution has been dead in the water for at least three years," Assembly of Manitoba Chiefs Grand Chief Derek Nepinak said.

Meanwhile, the province and senior social workers argue their first job is to keep children safe — and First Nations-run agencies and authorities have proven unable to do that over the last dozen years.

"At three in the morning, the phone rings and a kid is in danger, and someone has to be responsible for that kid," said one senior government source. "Maybe we’re doing a shitty job, but someone’s gotta protect that kid."

The struggles continued this year — the fallout from the murder of Tina Fontaine, the 15-year-old found dead in the Red River, the latest pledge to ban housing kids in hotels following the sexual assault of a teen in a downtown parkade and the ever-swelling number of kids in care.



But amid those high-profile, attention-grabbing failures, the basic building block of devolution has quietly crumbled.

At the simplest, technical level, any First Nations control over child welfare no longer exists and hasn’t for three years in southern Manitoba and for a year in the north. It’s a little-remarked-on fact that the fundamental element of devolution has been suspended.

In the south, First Nations’ control over the Southern Authority collapsed following a power struggle between the chiefs and the province. In the north, the province yanked back control over the Northern Authority following years of oversight failures. The protection branch of Child and Family Services is effectively running both authorities, and has consolidated its power, not devolved it.

In interviews, both on and off the record, with more than a dozen people within the Manitoba child-welfare system or very familiar with it, a picture of a stubborn stalemate has emerged. Here’s how it happened:

The office door for the minister of family services in the Manitoba legislature. One senior provincial official says it is the worst job in government.


The office door for the minister of family services in the Manitoba legislature. One senior provincial official says it is the worst job in government.


A brief backroom history

"I still think devolution was the right thing to do, but it was very aspirational," said a senior government source.

In the early 2000s, there was what that official called a vain hope devolution to First Nations could work, that the province could catapult the child-welfare system, and relations with indigenous people, forward.

Several people interviewed said when devolution was first negotiated, it worked because there was the right mix of people at the table. First Nations leaders such as Waywayseecappo’s Murray Clearsky and former national chief Ovide Mercredi wanted ultimate control of child welfare but were willing to accept devolution as an interim compromise.

The idea of a First Nations-controlled system for off-reserve children as well as those living on reserve grew out of the Aboriginal Justice Inquiry. In 2003, the legislation for the new system, with agencies and authorities theoretically controlled by First Nations boards, was created.

But it wasn’t well thought-out, especially in ensuring both the province and First Nations leaders were accountable for the system’s performance and its ability to protect children and help families.

And, it was rushed. Devolution meant transferring thousands of files, almost overnight, to First Nations-run agencies scattered across the province. Hundreds of social workers were shuffled to new agencies, with skills frequently not matching needs. Those new agencies often had limited links to other parts of the social service system — the courts, health care, Manitoba Housing, addictions centres, police and schools.

Felix Walker, head of a child-welfare agency in Nisichiwayasihk Cree Nation.


Felix Walker, head of a child-welfare agency in Nisichiwayasihk Cree Nation.

Felix Walker, longtime head of the wellness centre and the child-welfare agency in Nisichawayasihk Cree Nation, says the province had the Cadillac of systems, with easy integration and control over all the peripheral parts that help child welfare function. Now, the aboriginal system is a Lada.

As First Nations say today, they were given nominal control over a system that was still essentially white in nature, with all the same rules, funding constraints, standards and structures that always existed, with few grassroots indigenous elements. And, the family services minister, along with her departmental staff on Garry Street, were still in charge.

A complicated system, with murky accountability

In Manitoba, a family-tree-like flow chart is needed to figure out child welfare.

There are 23 agencies in the province, including 17 First Nations ones based on reserve, such as Peguis Child and Family, or Awasis, which serves many northern reserves. Those provide front-line services to families, investigate abuse, apprehend endangered children and manage foster homes.

There are four authorities that are supposed to be watchdogs for the 23 agencies (much like regional health authorities manage local hospitals). The authorities, especially the southern and northern First Nations ones, were meant to take over a bulk of the oversight power of the province’s child protection branch.

Those agencies and authorities have notoriously unstable leadership, though the same handful of names often gets recycled throughout the system.

All together, those 27 agencies and authorities each have boards of directors — more than 100 people in the aboriginal system alone — often appointed by bands or tribal councils, which is largely where the new-found aboriginal control of child welfare was meant to rest. In Winnipeg, there’s one central intake agency (called the All Nations Coordinated Response Network or ANCR) that’s supposed to be the first point of contact for a child whose file is then transferred as fast as possible to the right agency — Peguis for a child with roots in Peguis, the Métis agency if a child is Métis, and so on.

Layered over that are reams of regulations, legislation, a massive and almost impenetrable standards manual that lays out the rules and timelines social workers must follow, and a federal-provincial, per-child funding formula the Bank of Canada’s chief economist would have trouble parsing.

The upshot is a school in Winnipeg might have children in care from nine or 10 different agencies, all of varying quality. There are more than 20 agencies with offices in Winnipeg, to serve children who belong to any number of northern First Nations but who live in the city.

When troubling incidents occur, it’s never clear who is really in charge, except the often-beleaguered minister of family services. Manitoba has had three different ones in the last five years. Currently, it’s Kerri Irvin-Ross.

Despite devolution, which was meant to hand more control and responsibility for aboriginal children to aboriginal-run agencies, when a child dies in care or parents claim they’ve been unfairly vilified as unfit, agency CEOs almost never respond.

When an agency boss is fired for mismanaging funds or nepotism — as happened at the Cree Nation Child & Family Caring Agency in 2009 and at Awasis the year after — it’s never the agency’s aboriginal board that is held publicly accountable, or the authority for failing to crack down. CEOs almost never return calls, and the Northern Authority, in its dozen years of existence, has almost never responded to requests to explain publicly how, for example, a child such as 14-year-old Rephanniah Redhead could commit suicide while living in a Winnipeg group home for high-risk youth while in the care of the Awasis agency.

Instead, it is Manitoba’s family services minister who often finds himself or herself facing a wall of television cameras in the halls of the legislature, constrained by the province’s own privacy legislation that essentially muzzles government when a child dies in care or a spending scandal erupts or a review suggests an agency is profoundly dysfunctional.

One senior government official said the worst job in government is child-welfare minister. It’s even worse than health. In health, at least people get better.

AMC Grand Chief Derek Nepinak (left) and Terry Nelson, the grand chief of the Southern Chiefs Organization, attend last week's news conference where changes  to the Child and Family Services Act were announced.  They include a more traditional approach to helping children in need.


AMC Grand Chief Derek Nepinak (left) and Terry Nelson, the grand chief of the Southern Chiefs Organization, attend last week's news conference where changes to the Child and Family Services Act were announced. They include a more traditional approach to helping children in need.

Hard lines emerge

The murder of five-year-old Phoenix Sinclair in 2005, and the years of political and bureaucratic fallout from it, essentially halted devolution.

Phoenix was confined and tortured by her mother and stepfather at their home in Fisher River First Nation before her death on the basement floor. Phoenix’s death was not discovered for months, her body found in the reserve’s dump. An inquiry found the child-welfare system — mostly the non-aboriginal one — failed to act at least 13 times on tips the child was being abused.

Pheonix’s death cast a shadow on child welfare for years, prompting a system that was relatively open and innovative to shift into crisis mode, fixated largely on risk management and in constant fear of another child murder. But those deaths happened anyway, including 15-year-old Fontaine, whose murder remains unsolved, and 21-month-old Kierra Williams, the Peguis toddler whose parents and stepsister now face homicide charges. Both had child-welfare files. Given the secrecy that stifles the system, it may never be clear how they died.

After Phoenix, many argue, the system over-corrected, apprehending kids too aggressively, creating rigid rules and checklists, such as requiring social workers to see each child in care once a month. Especially in the north, where children are spread out and caseworkers are at a premium, those standards are hard to meet.

"Devolution requires a culture change that started but got interrupted after Phoenix," said the senior child-welfare executive.

Add to that a new generation of indigenous leaders, including Nepinak and former southern grand chief Morris Swan Shannacappo, who have adopted a significantly more radical approach to sovereignty rights that amounts to a wholesale rejection of the province’s system.

Sources say provincial meetings with Shannacappo were often little more than three-hour lectures on cultural genocide. And, in his early meetings as part of the leadership council, Nepinak spent much of the time outlining why he didn’t acknowledge the province’s jurisdiction over child welfare, why the province must hand over control of the system to First Nations, along with the roughly $1 billion in funding that goes with it.

"How you really do child welfare differently was not going to happen at that table," said the senior government official. "We were only really at a place of talking about how horrible the child-welfare system was for them."

The Manitoba government has a constitutional obligation to deliver child-welfare services, and no government will give away millions without some kind of accountability.

"He’s dreaming in Technicolor if he thinks the province will do that," one child-welfare source said of Nepinak. "The lives of children are on the line."

But Nepinak makes a principled argument for complete rejection of the current system.

"What we’ve done over generations is we’ve incrementally broken down the jurisdiction of families in terms of decision-making and created an artificial mechanism called CFS, creating a situation where families don’t have to take responsibility," he said. "It’s created that institutionalized environment even in the confines of our own home fires, our own living rooms, because people know how deep the system can penetrate, and they know they can use it against one another."

Nepinak says the province pretends to take a morally unimpeachable stance — it’s protecting children — when in practice it devastates indigenous families and children, part of generations of social calamity visited upon indigenous peoples.

A truly indigenous system reflects what elders say, gets its marching orders from ceremonies and spiritual practices instead of colonial legislation and is entirely outside the control of the province.

"The province does have to come forward and say, ‘I recognize my thinking is not like your thinking, but here is some financial support to do what your communities have to do to become strong again,’ " said Nepinak.

A fifteen-year-old girl, who is in CFS care, recovers in hospital after being viciously assaulted and left for dead by another CFS ward during an April downtown attack.


A fifteen-year-old girl, who is in CFS care, recovers in hospital after being viciously assaulted and left for dead by another CFS ward during an April downtown attack.

The rise of the child protection branch and the collapse of the authorities

Four years ago, after increasing animosity between many chiefs and Elsie Flette, the formidable head of the Southern Authority, the accountability issue ended up in court in what one source called a "ridiculous standoff."

The Southern Chiefs Organization and the Assembly of Manitoba Chiefs tried to assert more direct control over the Southern Authority by appointing several chiefs — including Nepinak, then-chief of Pine Creek — to the authority’s board.

Flette retaliated, promptly taking the chiefs to court, calling the move part of a "blatant political agenda" that puts the chiefs in an "irreconcilable conflict of interest."

But the chiefs say they’re the ones who get an earful, at all hours, when a child is apprehended unfairly or when abuse is overlooked. They’re the ones meant to have a say in the way devolution is done, and they’ve been largely excluded. They felt accountable directly to their band members for child welfare, from the high-level policy to specific decisions about individual cases, but had no direct ability to influence the system.

On the other hand, many senior social workers and even some families feared political interference in child-welfare decisions, from which child to take into care to whom an agency CEO hired to whether provincial directives were enforced. One social worker put a fine point on it, saying chiefs and councillors might see one child in care as dozens of votes in the next election, if an extended family is kept happy by keeping CFS at bay.

A review of an incomplete list of First Nations agency board members — the most complete list the province could provide — suggests a quarter of those posts are still held by chiefs or band councillors.

And many First Nations boards, including those with chiefs as members, proved to offer poor oversight. Reviews called into question their competence.

"We couldn’t figure out how to make that work," said the former board member of the accountability structure. "And that was a fail."

Three years ago, as terms expired and the Southern Authority board dwindled, then-family services minister Jennifer Howard disbanded the board altogether, placing the authority in "administration" and appointing a provincial bureaucrat to run it. Shortly after, Flette announced her retirement, and the province lost one of its most effective allies, one who cracked down on bad governance and sloppy standards in the 10 front-line agencies she oversaw and who championed prevention programs meant to keep families intact.

But many chiefs viewed Flette as the minister’s henchman, there to impose a white system. It didn’t help Flette was non-aboriginal and a woman, and she’d had toxic relations with some chiefs, including Shannacappo, from her 20-year tenure as head of West Region Child and Family Services.

It’s also true the old Southern Authority board and Flette didn’t communicate enough with the chiefs, and Flette didn’t do enough to groom an indigenous successor.

While the authorities have been under administration, and even before, the power of the child protection branch, the province’s central bureaucracy has grown

Today, the court case still lingers, but the Southern Authority was supposed to be out of administration in April. The Southern Chiefs Organization, now headed by Terry Nelson, essentially caved on the chiefs-on-the-board issue. Several new board members — none chiefs — have already been chosen by the Southern Chiefs Organization and vetted by the province.

But delays persist, and the Southern Authority has recently been rendered less stable due to the departure of Bobbi Pompana, after a little more than a year on the job. She was hired, after a long delay, to replace Flette, but has now been seconded to the province to work on strategic initiatives.

The province says the Southern Authority will be returned to nominal First Nations control within weeks.

If the Southern Authority was the victim of a standoff between chiefs and the province, the Northern Authority was the victim of its own weakness.

The Northern Authority has been under administration for a year, its First Nations board suspended and its oversight in the hands of a provincial appointee (veteran lawyer Issie Frost).

The trigger was the authority’s unwillingness or inability to use CFSIS — the unwieldy and imperfect central database meant to track the case files of every child in care, on and off reserve. Some First Nations, especially in the north, see it as an intrusive surveillance system meant only as a tool the province uses to impose its control on front-line operations.

But the province says there was a period in which the Northern Authority could not account for the safety and whereabouts of the children in its care. It also says the Northern Authority was slow to implement the recommendations from the Phoenix Sinclair inquiry, allowing agencies and northern chiefs the balance of power, making small headway then backsliding, occasionally stonewalling the province and struggling to deliver basic protection services.

While the authorities have been under administration, and even before, the power of the child protection branch, the province’s central bureaucracy has grown.

When devolution was first planned, the idea was the branch would shrink, transferring most of the oversight and planning powers to the authorities. In recent years, the reverse has happened, especially as the authorities have come under the direct control of the province.

Sources, even some within the senior ranks of the system, say the branch often over-interprets its role, was and is very conservative and risk-averse, with a significant element lukewarm at best about devolution.

In the post-Phoenix years, some of that retrenchment is understandable. The branch had recommendations coming at it from all directions, hundreds of them from review after investigation after inquiry. Almost weekly, it felt as though the minister was announcing a new initiative with a catchy name and big dollars attached. Sources said the department was under intense political pressure to show results from a 122 per cent funding increase since Phoenix died. And, with the authority board and CEOs, especially in the north, largely unwilling to answer publicly for any tragedies or failures, it was the minister and the branch left accountable.



Still, among agency heads, indigenous leaders and front-line social workers in the First Nations system, the frustration with the branch and its rigidity is significant.

The Phoenix Sinclair inquiry report was released in January 2014.


The Phoenix Sinclair inquiry report was released in January 2014.

Long live devolution

In the words of several sources, there is shared responsibility for the failures of devolution. And, there’s growing public exhaustion with the endless tragedies and turmoil, as well as the massive dollars spent propping up a system that may need radical reform.

But, in the two years since the release of commissioner Ted Hughes’ report on the death of Phoenix Sinclair, devolution has made a tiny comeback.

One source described it as being in a state of recovery and reconciliation with yet another batch of new chiefs. That includes rookie Northern Grand Chief Sheila North Wilson and Southern Grand Chief Terry Nelson, who has emerged as a voice of reason and pragmatism in provincial negotiations on child welfare, despite his history as a maverick.

Nelson and the southern chiefs have backed down on the issue of chiefs on boards. The northern chiefs have given way on the issue of CFSIS.

“I went to them a couple of times. I had my tea. I had my fruit from the fruit tray and I listened and saw that it wasn’t really accomplishing anything. I decided this is a waste of our time. I feel I’ve pressed every button on the panel... The minister’s office has always been in control.” ‐ Derek Nepinak

It appears both authorities may soon emerge from administration.

Meanwhile, there are some signs of progress on the kinds of child-welfare programs that give First Nations more direct, traditional control over individual cases. Projects such as customary and kinship care — approaches that allow children to stay in their communities or with extended family and friends rather than a stranger’s foster home — are slowly being developed. Irvin-Ross announced legislation clearing the way for customary care earlier this month at Thunderbird House. All the chiefs attended and offered supportive words, something that hasn’t been seen in some time. Nepinak and Irvin-Ross even shared a hug.

And, Diane Kelly, a lawyer, former grand chief of Treaty Three and the former executive director of the Ma Mawi Wi Chi Itata Centre, has been put in charge of the province’s child protection branch — an appointment widely hailed by people who don’t normally have much nice to say about the department.

In the meantime, Nepinak appears sidelined, but is still carrying what he calls the flag of radical transformation — which means setting aside the complicated web of agencies and authorities the province created and starting from the ground up, community by community.

He says he tried the legal approach, with the court battle over board appointments. He tried the political angle, by attending the regular leadership council meetings with the minister, North Wilson and Nelson.

"I went to them a couple of times. I had my tea. I had my fruit from the fruit tray and I listened and saw that it wasn’t really accomplishing anything. I decided this is a waste of our time," said Nepinak. "I feel I’ve pressed every button on the panel... The minister’s office has always been in control."

In fact, he sees the province pursuing a divide-and-conquer strategy.

Now, he’s working from the outside on the AMC’s own plan for child welfare, which includes the creation of the AMC, child advocate, a post held by Cora Morgan.

Are children safer? No. There have been at least 12 homicides of First Nations children in care in the last five years and 42 suicides.

The move was seen as a poke in the eye to the province and to the existing children’s advocate, and Morgan has made few friends in government, partly because she’s publicly championed cases of children in care the province can’t comment on due to privacy rules. But Nepinak says he’s trying to create space outside the colonial structures for truly indigenous programs based on ceremony and tradition to grow.

Ideology aside, by most objective measures, devolution hasn’t really worked.

Are there fewer aboriginal children in care? No. The number in care has doubled in a decade and First Nations leaders routinely compare CFS to the residential schools system.

Are First Nations running the show? No. They have nominal, passive control of most agencies, but currently no control over the authorities.

Are there more culturally appropriate foster homes and services? Yes, but not enough.

Are children safer? No. There have been at least 12 homicides of First Nations children in care in the last five years and 42 suicides.

Are there more front-line workers who are indigenous? Yes, but their training and education is typically lower than in the non-aboriginal system.

"If the (New Democrats) could fix child welfare, they would have," said the former high-level provincial official. "Lord knows they tried."