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||Jan. 10, 2022||IN PROGRESS|
|Previous Status||Dec. 5, 2021||IN PROGRESS|
Why “In Progress”
Jan. 6, 2022: Indigenous Services Canada – “January 2022 marks the two-year anniversary of the coming into force of An Act respecting First Nations, Inuit and Métis children, youth and families (the Act). Since coming into force two years ago, 59 Indigenous governing bodies have submitted notices and requests concerning the exercise of jurisdiction in relation to child and family services, representing more than 120 Indigenous groups, communities and people. Of this, 18 coordination agreement discussion tables have been established. To date, the Government of Canada has provided over $56 million to 115 Indigenous groups preparing to undertake coordination agreement discussions.
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.
July 9, 2021: Cowessess First Nation reclaimed its inherent right to look after its own children with the signing of a co-ordination agreement with Saskatchewan and the federal government on Tuesday. The historic signing — the first of its kind in Canada — was attended by Prime Minister Justin Trudeau, Premier Scott Moe and Cowessess Chief Cadmus Delorme. This is the first transfer of authority under Bill C-92 “The Indigenous Child Welfare Act”
April 19, 2021 – Budget 2021 proposes to provide $73.6M over four years, starting in 2021-22 to support the implementation of the Act. The shared goals achieved through the implementation of the Act are:
- Prioritizing the best interest of children
- Increasing the number of communities exercising jurisdiction in relation to child and family services, and
- Decreasing the number of children in care
Nov. 27, 2020 – The government announced funding of $542M over 5 years to support the Indigenous Child Welfare Act and support First Nations, Inuit, and Métis engagement to exercise jurisdiction over child and family services and advance the implementation of the Act.
- $425 over 5 years for capacity building funding to support the development of legislation, community consultation, engaging with experts. It is not intended for program or service delivery
- Nearly 73M over 5 years for coordination agreement discussions
- Nearly $10M over two years for governance engagement mechanisms
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.
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 Services Canada RFP Funding Process
Mar. 23, 2021 – Today, the Honourable Marc Miller, Minister of Indigenous Services Canada, announced the launch of a call for proposals to support Indigenous Peoples, communities, and groups as they begin work to develop their own legislation and explore Indigenous-led models for child and family services.
More specifically, this funding is intended to provide support to Indigenous Peoples, communities and groups wishing to:
- explore models and options to exercise jurisdiction;
- develop Indigenous child and family service legislation, systems, and programs prior to entering into tripartite coordination agreement discussions with federal and provincial or territorial governments.
As communities develop their laws, specific funding will also be made available for their participation in Tripartite coordination agreement discussions to further advance these models. These discussions will be essential for reaching a successful agreement between Indigenous communities, the Government of Canada, provinces, and territories to provide services to children and their families. They will also help ensure a smooth transition from the existing system to the one envisioned by Indigenous communities, free from racism and discriminatory practices.
Through this call for proposals, activities, such as community engagements, planning, research, IT systems design or communications activities, and more, can be funded. Eligible recipients are section 35 rights-holders, which include First Nations, Inuit and Métis nation groups; Indigenous governing bodies, as defined under the Act, as well as National Indigenous Organizations.
Indigenous Services Canada recognizes that not all Indigenous Peoples, communities or groups are at the same state of readiness nor have the same resources to exercise jurisdiction under the Act. To this end, this funding is available to support eligible Indigenous groups, communities or peoples as they work within and across their communities to build strong foundations in preparation for their participation in coordination agreement discussions.
Indigenous organizations responses to 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.
2021 – AFN will be hosting a series of gatherings focused on First Nations child and family well-being:
- Jan. 19, 2021 – Introduction to an Act respecting First Nations, Métis and Inuit children, youth and family (the Act)
- Feb. 9, 2021 – Navigating Indigenous Child and Family Services legislation
- March 2, 2021 – Asserting Jurisdiction under an Act respecting First Nations, Métis and Inuit children, youth and family (the Act)
- March 30, 2021 – Upholding the Best Interests of First Nations Children
- April 13, 2021 – First Nations Child and Family Services Funding Reform – Towards a Needs Based Funding Approach
Response to Tabling of Bill C-92
May 9, 2019 – Assembly of First Nations (AFN) National Chief Perry Bellegarde appeared before the House of Commons Standing Committee on Indigenous and Northern Affairs today, speaking directly to e urgency of passing federal legislation on First Nations child welfare in this session of Parliament. Proposed amendments submitted to the Committee included:
(Preamble. p. 2, Line 33)
- Improved funding provisions are required to achieve the purposes of the Bill, including
- Supporting a shift to First Nations child and family services to achieve priority on prevention to promote family unity
- Providing capacity and operational support for First Nations governing bodies to pass laws, enforce laws and resolve disputes
- Ensuring that federal and provincial coordinating agreements can address the fiscal arrangements to ensure there are proper safety and other mechanisms in place for a seamless child safety system in Canada
- Meeting required compliance measures with the 2016 Canadian Human Rights Tribunal decision in the Caring Society/AFN complaint
- A new provision is proposed for the “body” of the Bill to repeat the principled approach and to clarify that funding includes support for jurisdiction. This is necessary to ensure the shifts in the Bill can be implemented.
Coordination Agreements (p.11. Line 10)
- This amendment tracks wording in the Preamble and incorporates the principle into the negotiation of funding to implement First Nations laws in a coordinated fashion with other Governments. The proposed wording helps clarify that Bill C-92 is a statutory basis for funding that responds to the issue of discrimination and thus addresses items which the Canadian Human Rights Tribunal has determined are not consistent with human rights standards and anti-discrimination.
Purpose and Principles Section 8 Page 4, Line 29
- The addition of reference to the UN Declaration is necessary to meet the Truth and Reconciliation Commission Calls to Action and recommendation that the UN Declaration provide the framework. While the UN Declaration is in the preamble, it must be part of the purposes of child welfare reform explicitly added to Section 8.
- A similar provision appears in Bill C-91 on Indigenous languages and the reference to the UN Declaration is in the purposes provision of that Bill.
- Consistency in all legislation is important and this change may be a correction of a matter that was dropped I the last draft.
Best Interests of the Child Page 5, Line 7
- The proposal clarifies that “best interests of the child” is central but provides space for First Nations laws to prescribe criteria consistent with the customs, values and practices.
- First Nations laws should be viewed as supplementing the factors listed in the Bill and further prescribe items that are integral to the customs, traditions and practices of First Nations peoples. Space for this must be specifically recognized within the ‘Best Interest’ provisions in Section 9.
- This will be important when conflicts arise and it is not clear what weight should be given to various principles to consider in reaching a decision on the best interest of a First Nations child.
Preamble Page 2, Line 7
- Specific reference to Jordan’s Principle is recommended in both the preamble and Section 9 of the Bill in order to affirm the continuation of this approach to serving the child and not permitting jurisdiction disputes to become a barrier to needed services and supports to First Nations children. On January 2016, the Canadian Human Rights Tribunal (CHRT) issued a ruling that ordered Canada to immediately implement the full meaning and scope of Jordan’s Principle.
- As a result of this ruling and subsequent rulings, Jordan’s Principle is now a legal principle that applies to all First Nation children regardless of where they live, ensuring there are no gaps in government service and recognizes that First Nations children may need government services that exceed a normative standard to ensure substantive equality , including receiving culturally appropriate services
Page 5, Line 30
- In December, 2007, the House of Commons unanimously passed a motion that the federal government should immediately adapt a child-first principle, based on Jordan’s Principle, to resolve jurisdictional disputes involving the care of First Nation children.
Jordan’s principle gives a concrete framework for the understanding of substantive equality and reinforces the need to work on issues that have been the underlying problems with children being over-represented in out of home care placements rather than receiving services within their families and with the support of their community
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.
Response to Tabling of Bill C-92
Feb. 28, 2019 – ITK has worked with the Government of Canada, as well as AFN and MNC, to co-develop options for federal legislation to address the protection of Inuit children. Through engagement sessions and research, Inuit developed and submitted a series of priorities for child protection. They include:
- Doing whatever is possible to keep children with their immediate or extended families, which requires enhancing the support provided by departments and agencies;
- Ensuring that all care provided to Inuit children and families is culturally appropriate;
- Ensuring that Inuit children and youth living outside of Inuit Nunangat are identified as Inuit and provided with culturally appropriate care; and,
- Ensuring that Inuit children and youth sent outside of Inuit Nunangat for specialized care remain in contact with their culture and their home community.
Inuit also called for the legislation to respect four principles:
- An outcomes-focused approach
The legislation should be focused achieving tangible change in the lives of children and families, not solely on process, funding levels or the development of policies and standards.
- A distinctions-based approach
Federal legislation should recognize that the situations of Inuit, First Nations and Metis children are sufficiently different that they require different policy approaches. The legislation should contain equitable tools that are flexible enough to address child and family services issues for all children.
- An evidence-based approach
The legislation should contemplate the collection and use of data to inform meaningful changes to current Indigenous child welfare policies, programs and levers. Consistent with a distinctions-based approach, data should be disaggregated when collected and applied.
Federal legislation should ensure that Inuit rights holders are able to exercise agency. In some cases, this may mean providing the opportunity for Inuit to engage directly in service delivery. In other cases, it may mean providing support for Inuit and public governments or other service delivery agents to cooperate and collaborate on Inuit child welfare.
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
Response to Announcement of Bill C-92
Nov. 30,2018 – “This proposed legislation will provide a new chapter towards increased recognition that we, the Métis Nation, are best placed to nurture and to care for our children. This is an unprecedented initiative that will ensure the survival, dignity and well-being of our families, communities and nation for generations to come”.
Clément Chartier, President, Métis National Council
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.
Funding First Nations child and family services: A performance budget approach to well-being” Final Report:
July 31, 2020 – Released by the Institute of Fiscal Studies and Democracy (IFSD) at the University of Ottawa under the National Indian Brotherhood.
This report by the Institute of Fiscal Studies and Democracy outlines a bottom-up approach towards understanding the needs of First Nations children and families, and how to fund the services that support them, that puts the well-being of the child at the forefront,” National Chief Bellegarde said. “This study will form the baseline of the AFN’s advocacy to Ministers when it comes to improving child and family well-being and affirming First Nations authority over the social programs that support their families.”
A requisite of An Act respecting First Nations, Inuit and Métis children, youth and families (the Act) is to determine funding alternatives that address long term positive outcomes and substantive equality for First Nations children and families. In alignment with the Act, the new IFSD model also encourages First Nations child and family services agencies to focus on early intervention and prevention services.
As an expert on government funding and policies, the IFSD was asked by the AFN and the First Nations Child and Family Caring Society to define a new funding approach and implementation plan for First Nations child and family services. The IFSD released Phase 1 of its research in 2019, identifying the real needs that First Nations child and family services agencies have and analyzing the costs of addressing these needs.
The IFSD’s research highlights that increased support in prevention services will not only reduce the number of First Nations children in care now, but will support long-term positive life outcomes of First Nations, including improving education and employment outcomes. The IFSD’s model measures what First Nations children, families and communities need to thrive, including connection to culture, community engagement and education. This is a marked shift from the current practice based on the number of children in care, which incentivizes the placement of children into care.
AFN Regional Chief for Manitoba, Kevin Hart, said the proposed funding approach also addresses the Canadian Human Rights Tribunal’s orders on long term reform and the need for a funding model that replaces Indigenous Services Canada’s (ISC) discriminatory funding practices.
Summary of the Report
The report proposes:
- A needs-based funding approach that addresses known shortfalls in the way the FNCFS program is currently funded.
- A framework to measure the well-being of First Nations children, their families and communities.
What does the proposed approach look like?
The new approach focuses on the well- being of First Nations children, families and communities. It considers the child’s well-being in the context of their environment, including housing, water, and poverty. In order to raise healthy and thriving First Nations children, the communities they live in need to be healthy and thriving too.
The funding approach seeks to address areas of need, instead of the current funding model that is driven by the number of children in care. FNCFS providers will be empowered to act in the best interests of children and families, to address needs like prevention services and poverty. This new approach will involve new data collection and accountability structures. This process will take time to develop and must be First Nations-led
Measuring to Thrive: A new framework for well-being
In order to better serve First Nations children, families and communities, FNCFS providers need to be able to holistically serve First Nations children and families in the context of their community. The Measuring to Thrive framework supports better data collection and results by measuring what matters most to the well-being of children, families and communities. Examples of indicators include:
- For Children: Safety, Development, Physical Health, Connection to Culture
- For Families: Income, Social Participation, Incidents of family violence
- For Communities: Community Engagement, Community Health, Education
Bottom-Up Funding Approach
In January 2020, An Act respecting First Nations, Inuit and Métis children, youth and families came into force, affirming First Nations’ rights to self- governance in FNCFS. However, this new legislation does not yet have funding to support it. The legislation states that there must be a change in how FNCFS is funded to create long-term positive outcomes for First Nations children and families. The bottom-up funding approach proposed by the IFSD provides a model to reach this goal: defining funding parameters to support the well-being of First Nations children and families through equitable services and First Nations control.
The new approach is grounded in the experience of FNCFS agencies, which understand firsthand the challenges of the way FNCFS is currently funded. The current funding model is driven by the number of children in care in a top-down approach that does not support First Nations-led decision making. The proposed approach is built from the bottom-up and is driven by indicators of well-being in the Measuring to Thrive framework. Community need, performance and First Nations control are core elements of the funding approach, which align to the new legislation.
The proposed funding approach accounts for factors including:
- Poverty: Household poverty on-reserve, relative to provincial poverty line
- Prevention: Per capita, by total population (not just children)
- Geography: Road access to a First Nation, proximity to a service centre
- Capital: Need for relevant and reliable fixed assets to deliver services
- Information Technology (IT): Gaps in hardware and software; need for investment to improve functionality and capacity
- Results: Collect data and work to close the gaps identified in the Measuring to Thrive framework
What is next?
The implementation of a new funding model and tool for measuring the well-being of First Nations children, families and communities will take time, and must be led by First Nations. Transition will require partnership and collaboration among all levels of government to transform the FNCFS system from one that is discriminatory and hindering for First Nations children and families, to one that supports them to thrive
Government Responses to Bill C-92
Jan 16, 2020 – Globe and Mail – Rebecca Schulz, Minister of Children’s Services initially wanted a delay to the Jan. 1, 2020 implementation of Bill C-92. “I’m hopeful for where we are going to go moving forward but we really do need answers specifically around funding, liability, oversight, and we need some improved consultations moving forward if this is going to work.”
March 18, 2019 – In an emailed statement, Social Services Minister Paul Merriman said the government is reviewing the act in detail to understand its implications and identify issues that could affect vulnerable families. (Saskatoon Star Phoenix). Merriman said the province is receptive to new models that could improve outcomes and better serve Indigenous families. He added the government is working with Indigenous partners to improve services and supports for Indigenous children and families across Saskatchewan.
Nov. 22, 2019 – APTN National News – Heather Stefanson, Minister of Families, said she supports the overall objective of the legislation but said there’s no clear plans for how it will be implemented or funded.
Dec. 19, 2019 : APTN News – The Quebec Government is challenging Bill C-92 by asking the Court of Appeal to assess the constitutionality of Bill C-92. “The government of Quebec intends to defend its powers and its autonomy under the constitutional framework and wishes to maintain the full application of Quebec laws – including the Youth Protection Act – on its territory,” Quebec Justice Minister Sonia LeBel said in a statement. Quebec believes that C-92 appropriates the “exclusive” jurisdiction of the provinces in matters of social services.
Despite protests by the AFN, the Assembly of First Nations in Quebec and Labrador and First Nations of Quebec and Labrador Health and Social Services Commission, the government is refusing to back down from their position that only the Government of Quebec has jurisdiction over child welfare in their “territory” including First Nations. (CBC)
Embracing the Children of Yesterday, Today and Tomorrow released by the Child and Family Services Act Advisory Committee with 149 specific “Required Actions” including what needs to be added to Bill C-92 to comply with the Yukon legislation.
Canadian Council of Child and Youth Advocates (CCCYA) Commitment to Reconciliation
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:
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 Recommendation
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.