We call upon the federal government to enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases and includes principles that:
- Affirm the right of Aboriginal governments to establish and maintain their own child-welfare agencies.
- Require all child-welfare agencies and courts to take the residential school legacy into account in their decision-making.
- Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate.
Indigenous Watchdog Status Update
|Current Status||Aug. 17, 2020||IN PROGRESS|
|Previous Status||June 15, 2020||IN PROGRESS|
Why “In Progress”
On Dec. 19, 2019 the Quebec government challenged Bill C-92 in the Court of Appeal claiming that the Bill appropriates the “exclusive” jurisdiction of the provinces in matters of social services including over First Nations Child Welfare. The Assembly of First Nations Quebec-Labrador (AFNQL) and the First Nations of Quebec and Labrador Health and Social Services Commission (FNQLHSSC) in their joint brief to the Laurent Commission (Special Commission on the Rights of Children and Youth Protection) have “reiterated their constitutional right to manage family support and youth protection services, according to Act C-92, and are asking the Government of Quebec to withdraw its dispute and negotiate coordination agreements in good faith with First Nations governments and Canada.
On June 21, 2019 “Bill C-92 An Act respecting First Nations, Inuit and Métis children, youth and families” received Royal Assent with the support of the Assembly of First Nations, Métis National Council and Inuit Tapariit Kanatami. Co-developed with Indigenous partners, Bill C-92 affirms Indigenous peoples’ inherent right to exercise jurisdiction over child and family services and is consistent with the Government of Canada’s ratification of the United Nations Convention on the Rights of the Child and commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples. The Bill had some initial resistance and concerns around funding, jurisdiction and governance.
On Sept. 10, 2019 the government announced that child welfare legislation will come into force in its entirety on January 1, 2020.
What happens with federal legislation on Jan. 1, 2020?
The bill affirms the rights of First Nations, Inuit and Métis to exercise jurisdiction over child and family services and establish national principles, such as best interests of the child, cultural continuity and substantive equality to guide the interpretation and administration of the bill. These principles would guide Indigenous communities and provinces and territories on the delivery of child and family services to keep families together and reduce the number of Indigenous children in care.
- Indigenous groups who have developed their own legislation will have 2 options to exercise jurisdiction under the act.
- Every service provider delivering child and family services to Indigenous children and families will need to follow the minimum standards found in the act.
- Existing agencies will continue to provide services to Indigenous children.
- Agreements related to existing delegated agencies will remain valid unless the parties decide otherwise.
- If Indigenous groups are currently at discussion tables to conclude agreements, they can still exercise jurisdiction under the framework of the act.
- Indigenous groups that choose to exercise their jurisdiction could continue working with delegated agencies or could create their own delivery service models.
- The act provides that agreements such as treaties and self-government agreements in relation to child and family services between Indigenous groups and federal, provincial, or territorial governments that predate the coming-into-force of the act prevail in case of conflict.
- To facilitate the work of those providing child and family services, information will be posted on the Indigenous Services Canada (ISC) website related to notices of intent, coordination agreements and Indigenous laws as they are made available.
The Protocol on the Indigenous Child and Family Services Act
On July 7, 2020, National Chief Bellegarde signed a Protocol with Minister of Indigenous Services Marc Miller, which confirms a First Nations distinctions-based approach to implementing An Act respecting First Nations, Inuit and Métis children, youth and families. The Chiefs Committee on Child and Family Services and Self-Determination (Chiefs Committee) has reviewed and supported the draft Protocol between the Assembly of First Nations (AFN) and Indigenous Services Canada (ISC).
The Protocol is a mechanism to ensure First Nations play a key role in the development of principles and processes related to the new Indigenous child and family services legislation and that it does not impede on First Nations inherent rights or jurisdiction. Further updates will be provided as more information on next steps is determined.
The Act affirms First Nations rights and jurisdiction over child and family services, including the authority of First Nations to establish laws grounded in their culture, beliefs and values, and sets out national standards and principles aimed to support First Nations child and family wellbeing. The Protocol is the first step in determining how the Act will be implemented, as determined by First Nations. Its main purpose is to define how Canada and the AFN will explore principles and processes that will support the transformation of First Nations child and family services and the inclusion of greater input, control and decision-making by First Nations.
In the Protocol, Canada and the AFN recognize that bilateral discussions on the implementation of the Act are necessary; however, they are not a substitute for Canada’s direct engagement with First Nations and their governing bodies on child and family services. The Protocol asserts that all bilateral work must respect the inherent rights, autonomy and authority of First Nations.
The Protocol also mentions the need to explore new fiscal relationships and funding models to support First Nations child and family services.
Indigenous organizations feedback on Bill C-92
Assembly of First Nations
June 20, 2019 – Bill C-92 was developed with direction from AFN Chiefs-in-Assembly and input by the AFN legislative working group which is comprised of technicians and experts from across the country drawing on years of advocacy and direction. “The goal with this legislation is to apply laws, policies and values to systems designed and implemented by First Nations for First Nations with the focus on providing every opportunity for our children to grow up feeling valued and connected to their families, cultures and nations.
No one piece of legislation will fix the drastic and long-lasting impacts of a broken system, but with First Nations jurisdiction paramount we have a solid base for change. I urge all provinces and territories to work directly with First Nations on the implementation of this legislation.”
The Act to Respect First Nations, Inuit and Métis children, youth and families affirms First Nations jurisdiction and creates space for First Nations laws and practices regarding their families. It respects rights in the context of implementing the UN Declaration on the Rights of Indigenous Peoples, which is the minimum international standard for the survival and dignity of Indigenous peoples. It sets out key principles that will prevent children from being removed from their homes unnecessarily, promotes children staying in their communities and nations and ensures the best interests of the child principle is understood and applied with a First Nations lens for our children and families.
Inuit Tapiriit Kanatami
June 25, 2019 – Inuit Tapiriit Kanatami welcomes the passing into law last week of Bill C-92, An Act respecting First Nations, Inuit and Metis children, youth and families. The law includes core provisions for Inuit children, including doing whatever is possible to keep children with their families, ensuring all care provided is culturally appropriate, and ensuring Inuit children and youth living outside Inuit Nunangat are identified as Inuit and remain in contact with their culture and home community.
Métis National Council
June 24, 2019 – Under Bill C-92, Indigenous peoples will be free to develop policies and laws based on their particular histories, cultures, and circumstances. Through the Act, national principles such as the best interests of the child, cultural continuity, and substantive equality have been established to help guide the provision of Indigenous child and family services. The Act also enables Indigenous peoples to transition toward exercising partial or full jurisdiction over child and family services at a pace that they choose. The Métis Nation will work with the federal government to ensure a smooth transition and implementation of the Act through the creation of distinctions-based transition governance structures
First Nations Child and Family Caring Society
March 9, 2019 – Preliminary Briefing Sheet: Bill C-92 “An Act respecting First Nations, Métis and Inuit children, youth and families”.
Important to this legislation, Canada has refused to adopt the ‘Spirit Bear Plan to end all inequalities in public services for First Nations children, youth and families’ and has no proposal of its own to end inequalities. This means that there are no assurances that the issues that drive the over-representation of First Nations children in child welfare care will abate (i.e. poverty, poor housing, substance abuse related to inter-generational trauma and domestic violence).
Based on a preliminary analysis and input from outside legal counsel, FNCFCS focused their commentary on the following thematic considerations:
- Jurisdiction: who interprets the Bill, what are the principles and processes guiding that interpretation, and how is it enforced? Absent affirmation of, and funding for, First Nations legal systems and courts, it appears mainstream courts will interpret the Act. This will effectively mean that terms like best interests will be determined be mainstream courts. Sections 4, 10, 19, 23 and 32 that all include provisions that could infringe on First Nations jurisdiction. For more precision:
- Section 4 Minimum Standards
- Section 10 Best Interests of then Indigenous Child
- Section 19 Charter of Rights and Freedoms
- Section 23 Exceptions
- Section 23 Federal Law
- Section 32 Regulations
- Funding: there is nothing in Bill C-92 that binds the federal government to provide needs-based and substantively equal funding that would support First Nations jurisdiction in this Bill.
- Framing: Overall, the Bill focuses on the reduction of over-representation of First Nations children in care within an incomplete frame of western child welfare concepts.
- Complementary Laws: Current child and family service laws act in relationship with other laws governing children such as public trustee acts, coroner’s acts, child and youth advocate acts. Bill C-92 does not explicitly provide the support for First Nations to exercise jurisdiction in these related areas.
- Lack of developmental or remedial measures: Section 20 says that if a collaboration agreement is not reached after one year the First Nations law takes effect. There are no safeguards to ensure the foundations for effective child and family service jurisdiction such as community consultation, First Nations laws, governance, programs, staffing, dispute and evaluation mechanisms are in place before the one-year time period expires or in the absence of an agreement, when the First Nations law is enacted. The bill is bereft of the funding and supports many First Nations will require in order to develop and implement a solid foundation for success.
See “Preliminary Briefing Sheet” below:
Chiefs of Ontario
July 25, 2019 – Chiefs of Ontario Special Chiefs Assembly Resolution 07/ 19 reflects Ontario First Nations’ opposition to the Act. The Bill was integrated by the Assembly of First Nations Annual General Assembly Resolution No. 31/2019
- The Act does not affirm First Nations inherent rights over their children and families, rather it transforms our inherent rights into Canadian Law.
- The Act fails to guarantee federal funding for the full development, implementation, and operationalization of First Nations’ Child and Family laws and systems.
- The Act imposes the Canadian Charter Rights and Freedoms and the Canadian Human Rights Act on First Nations’ jurisdiction.
- The Act imposes federal standards and rules that limit any proposed First Nations’ jurisdiction.
Assembly of Manitoba Chiefs
June 24, 2019 – The Assembly of Manitoba Chiefs (AMC) is disappointed to see this legislation passed without the inclusion of key amendments that would have responded to the unique circumstances and First Nation-specific rights of First Nations children. The MOU, signed in 2017, provided funding to the AMC to engage with First Nations in Manitoba to develop their own legislation in relation to First Nations children in care that was specific to the rights, interests and circumstances of First Nations children in Manitoba. AMC First Nations, led by the AMC Women’s Council and the AMC First Nations Family Advocate Office, developed the Bringing Our Children Home Act. AMC First Nations were shocked to hear of the Assembly of First Nations support for pan-Indigenous federal legislation that did not provide guaranteed funding or sufficient protections for our children from apprehensions and abuse in foster care.
Assembly of First Nations Quebec – Labrador
Dec. 19, 2019 – Quebec Government has launched a legal challenge in Quebec Court of Appeal to assess the constitutionality of Bill C-92: An Act Respecting First Nations, Métis and Inuit Children, Youth and Families.
The Quebec and Labrador Regional Chief of the Assembly of First Nations, Ghislain Picard, called Quebec’s move “shameful” and “unacceptable.” “Defending its so-called jurisdiction is one thing but doing it on the back of our children is another,” said Picard at the time of Quebec’s announcement.
Canadian Council of Child and Youth Advocates (CCCYA)
The CCCYA is an alliance of legislatively mandated advocates for the rights of children and youth. These advocates may operate under various titles (e.g. Advocate, Representative, Ombudsman, Commissioner), but all are official representatives in their particular provinces and territories. All CCCYA members are independent statutory officers who report directly to the Legislative Assembly of their respective jurisdictions. Each CCCYA member office is established by legislation to operate in a manner that is independent from government authority or control. Council includes members from eight of the eight provinces and two territories: Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Nunavut, Québec, Saskatchewan, and Yukon.
Jan. 31, 2018 – In reply to the Ministers’ comments and the reasons for this meeting, we respond as privileged witnesses. In our jurisdictions, we hear daily from Indigenous children, youth and their families about their experiences in the child welfare system. We stand with children and youth, and hope that their voices are heard directly. As members of the CCCYA, we agree to the following:
- We recognize that coordinated solutions with both immediate and long-term actions are required to improve the living conditions and well-being of First Nations, Inuit, and Métis children and youth in Canada.
- We call for immediate and long-term action to address the social determinants of health for these children and youth, including adequate housing, elimination of poverty, improvements to infrastructure, and ensuring clean water and food security.
- We are committed to a process for change that will support reconciliation.
- We believe that the voices of children and youth are integral to any process designed to improve their lives.
- We believe that Indigenous peoples have the inherent right to self-determination, including the right to care for their children.
- As the CCCYA expressed through our Declaration of Reconciliation at the Truth and Reconciliation Commission’s closing events in June 2015, we call for the implementation of the TRC’s Calls to Action.
- We acknowledge the negative impact that colonization, residential schools, the ’60s Scoop and the current child welfare system have had on First Nations, Inuit, and Métis children and youth.
- We believe that the United Nations Convention on the Rights of the Child is the cornerstone of all children’s rights and that its implementation must be informed by the United Nations Declaration on the Rights of Indigenous Peoples. http://nationtalk.ca/story/canadian-council-of-child-and-youth-advocates-statement-regarding-indigenous-child-welfare
Canadian Bar Association
Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families
CBA Recommendation on Improving Bill C-92
May 8, 2019 – The CBA’s Aboriginal, Child and Youth and Family sections call An Act Respecting First Nations, Inuit and Métis Children, Youth and Families a step in the right direction – but nonetheless a step with shortcomings and ambiguities that risk undermining its good intentions.
The Sections make recommendations to improve the bill, as follows:
That the Bill C-92 Preamble expressly commit the government to providing “predictable, stable, sustainable, needs-based and substantively equal funding for child and family services in Indigenous communities,” by changing “acknowledges the call for” to “commits to providing.”
- That a reference to the independence of dispute resolution mechanisms be added.
- That the Preamble reference Parliament’s affirmation of the right of Indigenous children to physical, emotional and psychological safety, security and well-being.
- That the Preamble make specific reference to the government’s international obligations under the UN Convention on the Rights of the Child and the United Nations Declaration on the Rights of Indigenous Peoples.
- That the definition of “care provider” exclude foster parents whose sole connection to a child is through child protection placement.
- That continuity of care and the “possible effect on the child of disruption of that continuity, and the effects on the child of delay in the final outcome of a case” be considered in determining the best interests of an Indigenous child.
- That gender identity and expression be considered among the needs of the child in weighing best interests.
“Without amendments to address these important areas,” the Sections say, “Bill C-92 risks being at best little more than another hollow promise, and at worst an instrument for perpetuating further harm to another generation of Indigenous children.”
Official Response from Federal Government: Sept. 5, 2019
The Government of Canada has been engaging with partners across the country on how to reform the Indigenous child welfare. As part of this process, Indigenous Services Canada (ISC) engaged with First Nations, Inuit and Métis, as well as Treaty Nations and provincial and territorial governments to co-develop options for potential federal legislation that would set the stage for comprehensive reform. Sixty-five engagement sessions were held over the summer and fall of 2018 with nearly 2,000 participants. ISC will continue to advance this work in partnership with Indigenous peoples.
In addition to these efforts, the Government of Canada has committed to 6 points of action:
- continuing the work to fully implement all orders of the Canadian Human Rights Tribunal and reforming child and family services including moving to a flexible funding model: Canada has begun implementing the orders and has, for example, been funding agencies for their actual costs in the areas ordered by the tribunal and has formed a Consultation committee on Child Welfare Reform
- shifting the programming focus to prevention and early intervention: Canada is working with partners to fundamentally change the system to be truly child-centered, community-directed and focused on prevention
- supporting communities to draw down jurisdiction and explore the potential for co-developed federal child and family services legislation: as mentioned above, ISC has been engaging with partners over the summer and early fall 2018
- accelerating the work of trilateral and technical tables that are in place across the country: tripartite tables, technical working groups and regional advisory committees are in place in each province and the Yukon. Canada is working with partners to accelerate the work of these initiatives in support of reform
- supporting Inuit and Métis Nation leadership to advance culturally appropriate reform: Permanent Bilateral Mechanism forums have been established respectively between Canada and the Métis Nation and Inuit Tapiriit Kanatami, as well as the Assembly of First Nations, to provide a distinction-based forum to jointly set priorities for reform and oversee outcomes
- developing a data and reporting strategy with provinces, territories and Indigenous partners: Canada is working with partners to develop a data and reporting strategy that will help provide a more complete picture of the outcomes of children in care and the challenges experienced by Indigenous children and families, to inform future service delivery improvements
It is critical that these efforts are being led by Indigenous leaders and communities in alignment with the United Nations Declaration on the Rights of Indigenous Peoples and the United Nations Convention of the Rights of the Child. Articles 3 and 4 on the right to self-determination and self-government in particular are relevant to these efforts.
On June 21, 2019, the Government of Canada introduced Bill C-92, an Act respecting First Nations, Inuit and Métis children, youth and families, received Royal assent. Co-developed with Indigenous partners, Bill C-92 affirms Indigenous peoples’ inherent right to exercise jurisdiction over child and family services and is consistent with the Government of Canada’s ratification of the United Nations Convention on the Rights of the Child and commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples. The bill affirms the rights of First Nations, Inuit and Métis to exercise jurisdiction over child and family services and establish national principles, such as best interests of the child, cultural continuity and substantive equality to guide the interpretation and administration of the bill. These principles would guide Indigenous communities and provinces and territories on the delivery of child and family services to keep families together and reduce the number of Indigenous children in care.