The Assembly of First Nations (AFN) is a national advocacy organization that works to advance the collective aspirations of First Nations individuals and communities across Canada on matters of national or international nature and concern. The AFN hosts two Assemblies a year where mandates and directives for the organization are established through resolutions directed and supported by the First Nations-in-Assembly (elected Chiefs or proxies from member First Nations).
The AFN is mandated under the First Nations Child and Family Services, Jordan’s Principle, and Trout Class Settlement (“the Settlement”) to nominate two First Nations members (“Non-Counsel SIC Members”) to monitor the administration and implementation of the Settlement and claims process. Membership includes addressing matters, engaging experts, and providing process directions to the Administrator and the Third-Party Assessor, as necessary, in the implementation of the Settlement. The two Non-Counsel SIC Members will join a five-member committee consisting of the two Non-Counsel SIC Members and three Legal Counsel members. The AFN is seeking Expression of Interest from qualified proponents who are willing to be members on the Settlement Implementation Committee (“SIC”), subject to specified terms, to oversee the administration of the Settlement.
Two class action lawsuits – AFN and Moushoom/Trout class action – were filed seeking compensation for First Nations children and family members who were discriminated against through underfunding of the FNCFS Program and narrow application of Jordan’s Principle. These class actions were consolidated into one class action. These class actions concern compensation back to 1991, which means they cover more First Nations children and caregivers than the CHRT’s orders. In the fall of 2021, the Government of Canada agreed to enter into negotiations to settle the class action lawsuits.
The AFN, the Government of Canada and Moushoom/Trout signed a Final Settlement Agreement (FSA) on April 19, 2023 that outlined $23.34394 billion in compensation for First Nations children and families impacted by the discriminatory funding practices of the federal FNCFS program and its narrow implementation of Jordan’s Principle. The FSA was approved by the CHRT on July 26, 2023. An approval hearing for the FSA is scheduled with the Federal Court of Canada in October, 2023.
The objective of this Request for Expressions of Interest (EOI) is to select a First Nations’ proponent seeking to be a non-counsel member on the SIC, which will oversee and support the administration and implementation of the First Nations Child and Family Services, Jordan’s Principle, and Trout Class Settlement and will provide a high quality of professionalism, integrity and confidentiality in their work as a member of the SIC.
The successful proponent shall meet the following qualifications:
- Must be a First Nations individual, as defined as follows:
- (a) individuals who are registered pursuant to the Indian Act;
- (b) individuals who were entitled to be registered under sections 6(1) or 6(2) of the Indian Act, as it read as of February 11, 2022 (the latter date of the Certification Orders);
- (c) individuals who met Band membership requirements under sections 10-12 of the Indian Act by February 11, 2022 (the latter date of the Certification Orders) such as where their respective First Nation community assumed control of its own membership by establishing membership rules and the individuals were found to meet the requirements under those membership rules and were included on the Band List prior to February 11, 2022;
- (d) individuals who met Band membership requirements under sections 10-12 of the Indian Act pursuant to paragraph (c), above, AND who suffered a Delay, Denial, or Service Gap between January 26, 2016 and November 2, 2017;
- (e) individuals who were recognized as citizens or members of their respective First Nation prior to February 11, 2022 (the latter date of the Certification Orders) as confirmed by First Nations Council Confirmation, whether under final agreement, self-government agreement, treaties or First Nations’ customs, traditions and laws, AND who suffered a Delay, Denial, or Service Gap between January 26, 2016 and November 2, 2017.
- General proficiency in administration of awards, or programs and services.
- Experience in performing governance functions for an organization.
- Knowledge of human rights standards, child welfare legislation, medical services, or education programming.
Duties of the SIC
The duties of the SIC are, but not limited to, the following:
- Monitoring the work of the Administrator and the Third-Party Assessor, and the Claims Process overall;
- Receiving and considering reports from the Administrator, including on administrative costs;
- Giving such process directions to the Administrator or the Third-Party Assessor as may be necessary in accordance with the mandate of the Settlement Implementation Committee and the provisions of this Agreement;
- Proposing for the Court’s approval such protocols as may be necessary for the implementation of this Agreement;
- Receiving, through the Investment Committee, and seeking Court approval on advice from the Actuary and investment experts on the investment of the Trust Fund;
- Receiving a copy of the annual report of the Cy-près Fund and, if considered appropriate, communicating with the trustees of the Cy-près Fund;
- Receiving annual reports from Canada on the health supports, trauma-informed mental supports, and Claims Process supports provided to Class Members;
- Providing an annual Settlement Implementation Report to the Court, which includes updates on the implementation of the Agreement, actuarial reporting on the Trust Fund and distribution, annual audited financial reporting, any issues with the Trust, any systemic issues in implementation and proposed or approved resolution to such issues, etc.; and
- Providing the AFN Executive Committee with a concurrent copy of the annual Settlement Implementation Report, and ensuring that said report is posted on a public website.
- The Assembly of First Nations Executive Committee will recommend two Non-Counsel SIC Members to the Court for approval, one for an initial term of three years and one for an initial term of five years.
- No person will serve for more than two (2) five-year terms, consecutive or cumulative.
- A member of the SIC may be removed prior to the expiry of their term with a special majority vote of four (4) members of the SIC. Such a removal is not effective unless and until approved by the Court.
PROPOSAL SUBMISSION INSTRUCTIONS
All proposals shall be received by the AFN no later than Thursday, September 28, 2023 at 5:00pm EST.
Only electronic submissions will be accepted, submitted via email as a PDF document to the AFN. All proposals must clearly identify the name of the proponent and the note “EOI for Non-Counsel SIC Member” in the subject line. Proposals may be sent by e-mail to Stuart Wuttke, General Counsel, [email protected]. Submissions by mail or fax will not be accepted.
Late submissions will not be accepted, without exception.
PROPOSAL SUBMISSION REQUIREMENTS
All proposals should include the following information:
- A summary outlining the background of the proponent, the proposal contents, and any specific exceptions to the stated requirements.
- A description of the proponent’s qualifications, capabilities and experience specifically related to the Request for Proposals, including demonstrated experience and qualifications related to OCAP®.
- The name, title and contact information for three (3) references that have used the services of the proponent.
RIGHTS OF THE AFN
The AFN reserves the right to:
- reject any or all proposals received in response to this Request for Expression of Interest;
- enter into negotiation with one or more proponent on any or all aspects of their respective proposals;
- accept any proposal in whole, or in part;
- cancel and/or re-issue the modified version of a given EOI requirement at any time;
- verify all information provided with respect to a given EOI requirement, including the right to request a confirmation of the proponent’s legal status and signed documentation; and
- Recommend any particular candidate to the Federal Court for approval.
The AFN will select the Proponent(s) which, in the AFN’s sole discretion, best serves the needs of the AFN. The following is a summary of the general considerations that will be used to determine the Proponent(s) that will be selected:
Expertise of the Proponent submitting the proposal, including relevance of the proponent’s experience to be a member
Experience working with First Nations and First Nations organizations
Proposed work plan and approach, including allocation of time to tasks and activities identified in the proposal
Overall impressions of the proposal