SPECIAL REPORT

An Act Respecting First Nations, Inuit and Métis Children, Youth and Families:
Does Bill C-92 Make the Grade?

On Thursday, February 28, 2019, the federal government introduced Bill C-92, An Act respecting First Nations, Métis and Inuit children, youth and families for first reading.

After many years of well documented discrimination against Indigenous children, there is much hope in this legislative process to reverse this trend, empower Indigenous peoples to reclaim jurisdiction in this area, and ensure the rights of children are affirmed. To realize those hopes, five legal scholars working in the area of Indigenous law have drafted this analysis with the aim to improve the current legislation as it moves through committee and the Senate. They have identified five key areas  in the legislation that should be addressed in order to make meaningful change in the lives of Indigenous children and families.

Here, we share their findings in these areas and the grades (A to F) they have assigned based on how the bill performs in each. Click on each grade below for the summary of that area.

Five Key Areas, Graded 

grade-c

1: National Standards

grade-f

2: Funding

grade-d

3: Accountability

grade-d

4: Jurisdiction

grade-d

5: Data Collection and Reporting

The Context

  • It has been 4 years since the Truth and Reconciliation Commission (TRC) stated that “Canada’s child-welfare system has simply continued the assimilation that the residential school system started,” and issued five Calls to Action aimed to fix this broken system.
  • It has been over 3 years since the Canadian Human Rights Tribunal’s landmark ruling in the First Nation Caring Society case, finding that Canada has been knowingly discriminating against First Nations children by underfunding the First Nations Child and Family Services (FNCFS) Program and affirmed that First Nations children and their families are entitled to funding and services based on substantive equality. This means governments must “consider the distinct needs and circumstances of First Nations children and families living on-reserve – including their cultural, historical and geographical needs and circumstances” (para. 465). Since this ruling, Canada has been held in non-compliance with the Tribunal’s decision seven times
  • It has been over 1 year since the Liberals committed to a six-point plan, including fully implementing the First Nation Caring Society decision, developing data and reporting strategies and co-developing federal legislation that would “to support communities to draw down jurisdiction in the area of child and family services.”
  • And prior to all of the above, Cindy Blackstock and the First Nations Caring Society had been repeatedly blowing the whistle on the dysfunctional and discriminatory FNCFS Program in national studies published in 2000 and in 2005, as well as recommending changes.

1: National Standards | Grade C

Why is this important?
ttt

National standards are important because the federal government has allowed provincial child welfare laws and policies to apply to Indigenous children, on and off reserve, and these differ substantially from province to province. Without national standards, the law will be interpreted or applied unevenly.

Why we give the Bill a ‘C’ on
National Standards:

The National Standards section of the Bill C-92 has four sections: 1) Purpose and Principles; 2) Best interests of the Indigenous child; 3) Provision of Child and Family Services, and 4) Placement of an Indigenous child. Each of these sections require strengthening.

What is missing:
QQQ

Directives to uphold the provisions around culture and community in the “best interests of the child” (BIOC) section, a mechanism to address the long-standing biases of judges in their interpretation of the BIOC, and more accountability at the provincial level generally could improve this section of the legislation.

More than “good faith” is required to ensure Indigenous children’s relationship with their families, communities, cultures and territories are prioritized, nurtured and maintained. 

2: Funding | Grade F

Why is this important?
ttt

A lack of resources has been a stubborn source of discrimination against Indigenous children and has resulted in denials of services and a host of adverse impacts including the disconnecting children from family and community, and loss of culture, language, and self-worth.

Why we give the Bill a ‘F’ on
Funding:

There is no commitment to funding existing First Nation child and welfare services equally, to the future exercise of self-government by Indigenous group over child welfare services, Indigenous child welfare capacity building, or related service areas that impact of child welfare (housing, health, etc.).

What is missing:
QQQ

There must be binding commitments on funding. Leaving funding discussions to tripartite negotiations (First Nation, federal, and provincial government), will likely perpetuate, if not worsen, the longstanding game of jurisdictional hot-potato the federal government and provinces have played for decades.

While Canada is presenting Indigenous jurisdiction as the main selling feature of this Bill…without adequate funding, this will simply be jurisdiction to legislate over our own poverty.

3: Accountability | Grade D

Why is this important?
ttt

Repeatedly, Canada has maintained it has no constitutional or legal obligation to do provide adequate essential services to First Nations or those Indigenous peoples off-reserve. Without effective mechanisms to ensure the federal and provincial compliance, the law will be difficult to enforce.

Why we give the Bill a ‘D’ on
Accountability:

There are some general principles in the bill that could be interpreted as placing limits on government conduct but they are limited. And since there are no commitments to government funding in the legislation, these principles may apply merely to services providers, by-passing governments all-together.

What is missing:
QQQ

A tool to address interpretation and compliance issues is a binding dispute resolution process. While such a process for dispute resolution is suggested in the regulations, it must be make explicit and useful to communities in situations where Indigenous groups experience challenges with Canada and the provinces.

…we feel that true accountability here demands an independent decision-making body with the ability to make binding decisions against Canada set out directly in the legislation.

4: Jurisdiction | Grade D

Why is this important?
ttt

Indigenous peoples have practiced inherent jurisdiction over law-making and care of Indigenous children for thousands of years. That has been eroded. Today, Indigenous children’s wellbeing has suffered due to Canadian intervention and jurisdictional disputes between federal and provincial governments.

Why we give the Bill a ‘D’ on
Jurisdiction:

In a historic first for Canada, the Bill purports to recognize Indigenous peoples’ inherent jurisdiction. However there are of exceptions – especially around the application of the Charter of Rights & Freedoms and interpretation of the “best interest of the child” – that potentially force Indigenous governing bodies to serve as delegates of the federal government.

What is missing:
QQQ

This Bill does nothing to lift Indigenous children out of the jurisdictional quagmire, and may in fact deepen it. It must also address the glaring limits, absences, and lack of clarity that threatens to gut any meaningful exercise or enforcement of Indigenous jurisdiction over child welfare services.

Canada continues to under-deliver on Jordan’s Principle, even after the January 2016 ruling of the Tribunal, by minimizing state jurisdiction when it comes to accountability and maximizing jurisdiction when it comes to control.

5: Data Collection & Reporting | Grade D

Why is this important?
ttt

Data collection can play an important role in understanding rates of apprehension and whether they are rising or falling. It also allows for assessment of government commitments and a basis of future changes to legislation.

Why we give the Bill a ‘D’ on
Data Collection & Reporting:

There is no binding obligation on Canada, or any other body, to collect and publish of the kinds of data required. Instead, the Minister responsible has mere “discretionary” power to gather and disclose information.

What is missing:
QQQ

Canada’s record on the collection and publishing child welfare data suggests that, if given the choice, it won’t. Therefore, Bill C-92’s failure to mandate collection and publication of data is another missed opportunity.

Canada’s record on the collection and publishing data on child welfare and other essential service delivery suggests that, if given the choice to do this, it won’t.

Authors

Naiomi Walqwan Metallic is a Mìgmaq lawyer, Assistant Professor and holds the Chancellor’s Chair in Aboriginal Law and Policy.

Hadley Friedland, Assistant Professor, University of Alberta Faculty of Law.

Jeffery Hewitt is mixed descent Cree and Assistant Professor, Faculty of Law, University of Windsor.

Sarah Morales, Su-taxwiye, is Coast Salish and an Associate Professor at the University of Victoria, Faculty of Law.

Aimée Craft is an Anishinaabe/Métis lawyer from Treaty One in Manitoba and an Assistant Professor at the University of Ottawa Faculty of Law.

Start typing and press Enter to search