A Nation of Hollow Words: An Act respecting First Nations, Inuit and Métis children, youth and families

On January 1, 2020, An Act respecting First Nations, Inuit and Métis children, youth and families¹ came into force. This ground-breaking legislation is a result of decades of advocacy calling for reform and the establishment of a national standard for Indigenous child welfare.² The legislation recognizes Indigenous peoples’ jurisdiction over child and family services as part of their inherent right to self-government and self-determination and enshrines Canada’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples.³ While long overdue, the Act is the result of a rushed process and leaves considerable uncertainty regarding its implementation. Cindy Blackstock aptly described the Act as follows:

Bill C-92 offers Indigenous children a colonial Faustian bargain: Accept the flawed bill in its current state or get nothing…Government proclamations of good intentions – and statements of reconciliation – must not shield them from a serious review of their actions. Reconciliation is not what you say; it is what you do. On that measure, the Canadian government is choosing to fail.⁴

Canadian governments must seriously consider how best to implement solutions to remedy the failings already identified in the legislation. Three key issues to consider in the implementation of the legislation are jurisdictional disputes, funding, and the best interests of Indigenous children.

The absence of collaboration and cooperation among the three governments—federal, provincial or territorial, and Indigenous—in developing the legislation and in carrying out child welfare services is likely to result in implementation issues. The federal government has touted the legislation as “co-developed” with Indigenous peoples, stakeholders, and the provinces and territories.⁵ However, not all First Nations groups agreed with this assessment, with a number stating that while they may have provided input, it was Canada who made the final decisions.⁶ Some provinces, Saskatchewan in particular, also appear to have been excluded.⁷ As it stands, the concurring jurisdictions of all three governments will only further muddy the waters and complicate the jobs of social workers and courts in applying consistent standards.⁸ More specifically, Indigenous groups have raised concerns over the application of Indigenous laws to off-reserve Indigenous children, since there is no specific language in the Act to suggest who it may apply to once it is implemented.⁹ Further, the Act is vague regarding interactions with other child welfare legislation and agencies.¹⁰ These aforementioned issues are just a few among many that will be encountered in resolving jurisdictional challenges.¹¹ With a long history of jurisdictional squabbling over Indigenous child welfare between the federal and provincial or territorial governments,¹² in addition to the clear paternalistic behaviour of both provincial and federal governments,¹³ one can hardly be faulted for raising concerns over the prospects of a successful collaboration. All three governments must work toward developing successful partnerships or the legislation will only lend itself to more problems.¹⁴

A second contentious issue is the funding scheme for the Indigenous child welfare system. To create enduring change, there must be legislated guarantees of funding. However, the Act only mentions the need for “funding for child and family services that is predictable, stable, sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities.”¹⁵ Funding under the Act will therefore be negotiated on an individual basis. Given that the Attorney General of Canada has now spent more than a decade and nearly $10,000,000 in legal fees fighting the First Nations Child and Family Caring Society of Canada (“Caring Society”) to avoid providing funding,¹⁶ the federal government “has simply not earned the right to be trusted”¹⁷ when it comes to promises of funding.

By way of background, in 2007, the Caring Society and the Assembly of First Nations filed a discrimination complaint with the Canadian Human Rights Tribunal (“CHRT”) against the federal government regarding the funding of child and family services on reserve.¹⁸ In 2016, the Caring Society prevailed: the CHRT found severe inequities in the on-reserve child and family services program.¹⁹ Specifically, inadequate funding for prevention-based services incentivized the removal of children from their families and communities, as funding could only be accessed for services if children were taken into care.²⁰ Then, in 2019, the CHRT issued a landmark decision extending compensation to individuals, rather than only providing systemic remedies. The CHRT ordered the federal government to pay $20,000, the maximum compensatory payment permitted by s. 52(2)(e) of the Canadian Human Rights Act,²¹ for each First Nations child removed from his or her home since January 1, 2006.²² An additional $20,000 per child was awarded under s. 53(3) as compensation for Canada’s wilful and reckless conduct.²³ However, despite clear statements made by the CHRT regarding the importance of its decisions in advancing reconciliation and justice,²⁴ on October 4, 2019, the Attorney General of Canada applied for judicial review of the CHRT’s compensation orders.²⁵ The decision to continue fighting the CHRT’s compensation orders is hardly a token of good faith. While numerous Members of Parliament, Senators, and Indigenous groups called for statutory guarantees of funding, the federal government has refused to provide such guarantees.²⁶ Indigenous groups will continue to be the subject of interjurisdictional funding disputes that have plagued the system for years if a more concrete solution is not established.

The third potential issue regarding the implementation of the Act is the interpretation of the best interests of the Indigenous child. Historically, the best interests of the child have been framed by colonial courts which have failed to recognize the significance of cultural continuity.²⁷ Indigenous groups have argued that cultural continuity and family connection should be recognized as fundamentally important to Indigenous child wellbeing rather than simply considerations to be balanced with other interests.²⁸ As the legislation stands, there is still a risk that Canadian courts will continue assessing “best interests” without regard for Indigenous laws and traditions, especially given that Indigenous laws are not paramount over the sections dealing with the best interests of the child.²⁹ Ensuring that cultural continuity is recognized as fundamental to the wellbeing of Indigenous children will be critical to preventing yet another “scoop.”³⁰

Indigenous children make up 7.7 per cent of all children under the age of fourteen but account for 52.2 per cent of children in foster care.³¹ When Indigenous children are raised apart from their families, they are stripped of their identity, culture, and language.³² This trauma is then passed down from one generation to the next, contributing to the propagation of the high number of Indigenous children in the system.³³ Parliament has attempted to recognize these facts in the preamble of the Act, as well as in its focus on preventative care,³⁴ substantive equality,³⁵ and improvement of socioeconomic conditions.³⁶ While achieving substantive equality is a laudable goal, Indigenous communities are currently faced with a multitude of problems and struggle to provide basic services such as clean drinking water, education, and housing.³⁷ The federal government needs to recognize that, to keep its promises, it must shift its colonial view of children’s rights as an individualistic framework to one that appreciates the centrality of community and connectedness. A holistic approach to community development and engagement will be necessary moving forward, but the concept is still a foreign one to our legislatures. Indigenous children deserve better. Will the status quo continue, or will we be able to meet the challenge as a society?

^* JD Candidate (Saskatchewan).

¹ SC 2019, c 24 [Act].

² See e.g. Truth and Reconciliation Commission of Canada, Truth and Reconciliation Commission of Canada: Calls to Action (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at 1, online (pdf): <trc.ca/assets/pdf/Calls_to_Action_English2.pdf>, archived: <perma.cc/YEP4-WTAD>.

³ GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295 (2007), online (pdf): <www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>, archived: <perma.cc/CGG3-HEPY>. See Act, supra note 1, Preamble, ss 8, 18.

⁴ Cindy Blackstock, “Will Canada continue to fail Indigenous girls?”, The Globe and Mail (last modified 7 June 2019), online: <www.theglobeandmail.com/opinion/article-will-canada-continue-to-fail-indigenous-girls>, archived: <perma.cc/4U3H-S4HY> [emphasis added].

⁵ See e.g. "Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families”, 2nd reading, House of Commons Debates, 42-1, No 392 (19 March 2019) at 26125 (Marco Mendicino); "Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families”, 2nd reading, House of Commons Debates, 42-1, No 409 (3 May 2019) at 27323 (Dan Vandal).

⁶ See e.g. Chiefs of Ontario, Concerns & Recommendations on Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families (2 May 2019) at 7, online (pdf): <www.ourcommons.ca/Content/Committee/421/INAN/Brief/BR10491410/br-external/ChiefsOfOntario-e.pdf>, archived: <perma.cc/85LK-XNCK>; Association of Iroquois and Allied Indians, Our children, Our Nations: Comments on Bill C-92 to the Standing Committee on Indigenous and Northern Affairs (INAN) from the Association of Iroquois and Allied Indians (3 May 2019) at 6, online (pdf): <www.ourcommons.ca/Content/Committee/421/INAN/Brief/BR10489244/br-external/AssociationOfIroquoisAndAlliedIndians-e.pdf>, archived: <perma.cc/BWN6-5XJC>; Congress of Aboriginal Peoples, Submission to the Standing Committee on Indigenous and Northern Affairs: Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families (2019) at 2, online (pdf): <www.ourcommons.ca/Content/Committee/421/INAN/Brief/BR10459350/br-external/CongressOfAboriginalPeoples-e.pdf>, archived: <perma.cc/5M5R-TZT6>; Senate, Standing Committee on Aboriginal Peoples, Seventeenth Report (13 May 2019) (Chair: Hon Lillian Eva Dyck) at 6, online (pdf): <sencanada.ca/content/sen/committee/421/APPA/Reports/APPA_pre-study_c-92_e.pdf>, archived: <perma.cc/V66R-RUYK>.

⁷ For example, in Saskatchewan, Premier Scott Moe recently said he required more clarity on the federal funding scheme and “how it will transition Indigenous children out of the province’s care”: Adam Hunter, “‘I regret saying that’: Sask. social services minister calls ‘lobbyists’ comment inappropriate”, CBC News (last modified 29 April 2019), online: <www.cbc.ca/news/canada/saskatchewan/sask-social-services-bill-c92-1.5116049>, archived: <perma.cc/V58V-SFH7>. Considering that over 80% of children apprehended in Saskatchewan are Indigenous, an attitude that suggests there is no provincial responsibility for those children will present challenges for all parties moving forward: Statistics Canada, Aboriginal Peoples: Fact Sheet for Saskatchewan, by Karen Kelly-Scott, Catalogue No 89-656-X2016009 (Ottawa: Statistics Canada, 14 March 2016), online (pdf): <www150.statcan.gc.ca/n1/en/pub/89-656-x/89-656-x2016009-eng.pdf?st=caORM1xE>, archived: <perma.cc/HYZ3-Q2M6>.

⁸ Naiomi Walqwan Metallic, Hadley Friedland & Sarah Morales, “The Promise and Pitfalls of C-92: An Act respecting First Nations, Inuit, and Métis Children, Youth and Families” (4 July 2019) at 7, online (pdf): Yellowhead Institute <yellowheadinstitute.org/wp-content/uploads/2019/07/the-promise-and-pitfalls-of-c-92-report.pdf>, archived: <perma.cc/3J29-B8BE>.

⁹ Ibid.

¹⁰ For example, Ontario organizations noted that Ontario’s Child, Youth and Family Services Act (SO 2017, c 14) provided a more clear and inclusive definition of which children the legislation protects. One organization noted the following:

Any child who identifies as First Nations, Métis or Inuit (“FNMI”); or has a family member who identifies the child as FNMI; or, who has a relative or sibling who identifies as FNMI; or, if there is a connection between the child and a band or FNMI community is recognized as an FNMI child under the CYFSA. This is broader than the definition found in the Bill, which merely states that, ‘Indigenous, when used in respect of a person, also describes a First Nations person, an Inuk or a Métis person’ and refers to section 35 of the Constitution Act, 1982.

Aboriginal Legal Services, “Submissions of Aboriginal Legal Services on Bill C-92 to the House of Commons Indigenous and Northern Affairs committee” (2019) at 5, online (pdf): <www.ourcommons.ca/Content/Committee/421/INAN/Brief/BR10510319/br-external/AboriginalLegalServices-e.pdf>, archived: <perma.cc/V775-V534> [footnotes omitted].

¹¹ See generally Metallic, Friedland & Morales, supra note 8.

¹² The Jordan’s Principle, for example, was created to ensure that jurisdictional issues would not impact the care of Indigenous children: Assembly of First Nations, The Jordan’s Principle Working Group, Without denial, delay, or disruption: Ensuring First Nations children’s access to equitable services through Jordan’s Principle (Ottawa, ON: Assembly of First Nations, 2015), online (pdf): <www.afn.ca/uploads/files/jordans_principle-report.pdf>, archived: <perma.cc/LMU8-GVRJ>.

¹³ For example, in Saskatchewan, Premier Scott Moe discussed his desire to have bilateral discussions between the federal and provincial governments. The Minister of Social Services for his part stated that “[i]t creates a little bit of an issue if we can’t as a provincial and territory (group), have a conversation with our federal minister without a lobbyist in the room”: Hunter, supra note 7. Statements such as these demonstrate a clear ignorance of the pivotal role that Indigenous governments and peoples play in the reformation of the child welfare system, a matter having a great impact on their communities.

¹⁴ British Columbia has been successful in developing collaborative partnerships, and thus, has less concerns regarding the implementation of this federal legislation: See generally Province of British Columbia, “Indigenous Child & Family Development” (last visited 30 November 2019), online: <www2.gov.bc.ca/gov/content/governments/indigenous-people/supporting-communities/child-family-development>, archived: <perma.cc/GED8-B38K>.

¹⁵ Act, supra note 1, Preamble.

¹⁶ Kyle Edwards, “Fighting foster care: The stunning number of First Nations kids in care is a new touchstone for activists—and for rebel parents”, Maclean’s (1 February 2018), online: <www.macleans.ca/first-nations-fighting-foster-care>, archived: <perma.cc/PYE3-AYHC>.

¹⁷ "Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families", 2nd Reading, House of Commons Debates, 42-1, No 392 (19 March 2019) at 26155 (Charlie Angus).

¹⁸ Assembly of First Nations & First Nations Child & Family Caring Society of Canada, Human Rights Commission Complaint Form (2007), online (pdf): <fncaringsociety.com/sites/default/files/caring_society_afn_hr_complaint_2007.pdf>, archived: <perma.cc/AQK2-PA26>.

¹⁹ First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2, 83 CHRR D/207.

²⁰ Ibid at para 344.

²¹ RSC 1985, c H-6.

²² First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2019 CHRT 39 at para 245 [Caring Society 2019].

²³ Ibid at para 253.

²⁴ See e.g. First Nations Child and Family Caring Society of Canada et al v Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2018 CHRT 4, 90 CHRR D/1 at para 451, where the Tribunal concludes as follows:

It is important to look at this case in terms of bringing Justice and not simply the Law, especially with reconciliation as a goal. This country needs healing and reconciliation and the starting point is the children and respecting their rights. If this is not understood in a meaningful way, in the sense that it leads to real and measurable change, then, the TRC and this Panel’s work is trivialized and unfortunately the suffering is born by vulnerable children [emphasis in original].

See also Caring Society 2019, supra note 22 at para 13, where the Tribunal emphatically states “[n]o amount of compensation can ever recover what you have lost, the scars that are left on your souls or the suffering that you have gone through as a result of racism, colonial practices and discrimination. This is the truth.”

²⁵ Caring Society 2019, supra note 22, leave to appeal to FC requested. See Attorney General of Canada, “Notice of Application for Judicial Review” (4 October 2019), online (pdf): <fncaringsociety.com/sites/default/files/federal_court_document_t-1621-19.pdf>, archived: <perma.cc/VV7A-3D5G>.

²⁶ See e.g. “Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families”, 2nd reading, House of Commons Debates, 42-1, No 392 (19 March 2019) at 26155 (Charlie Angus); “Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families”, Debates of the Senate, 42-1, No 307 (20 June 2019) at 8786 (Hon Dennis Glen Patterson); Aboriginal Legal Services, supra note 10 at 8–9.

²⁷ See generally Racine v Woods, [1983] 2 SCR 173, 1983 CanLII 27 (commonly known as the case which began the “bond over culture” jurisprudence).

²⁸ See e.g. Union of B.C. Indian Chiefs, Bill C-92 – “An Act Respecting First Nations, Inuit and Metis children, youth and families” (14 May 2019) at 3, online (pdf): <www.ourcommons.ca/Content/Committee/421/INAN/Brief/BR10514022/br-external/UnionOfBCIndianChiefs-e.pdf>, archived: <perma.cc/U7AL-SPMX>; First Nations Child and Family Caring Society of Canada, “Preliminary Briefing Sheet: Bill C-92 An Act respecting First Nations, Métis and Inuit children, youth and families” (9 March 2019) at 2–4, online (pdf): <www.ourcommons.ca/Content/Committee/421/INAN/Brief/BR10454334/br-external/FirstNationsChildAndFamilyCaringSocietyOfCanada-e.pdf>, archived: <perma.cc/J934-DXTS>.

²⁹ Metallic, Friedland & Morales, supra note 8 at 5–6.

³⁰ See generally Raven Sinclair, “The Indigenous Child Removal System in Canada: An Examination of Legal Decision-making and Racial Bias” (2016) 11:2 First Peoples Child & Family Rev 8.

³¹ Indigenous Services Canada, Affirming and recognizing Indigenous jurisdiction over child and family services: An Act respecting First Nations, Inuit and Métis children, youth and families, (backgrounder), (21 June 2019), online: <www.canada.ca/en/indigenous-services-canada/news/2019/06/an-act-respecting-first-nations-inuit-and-metis-children-youth-and-families-has-received-royal-assent.html>, archived: <perma.cc/W6KG-EMT3>.

³² See Brown v Canada (Attorney General), 2017 ONSC 251 at para 6, 410 DLR (4th) 269.

³³ See generally Senate, Standing Committee on Aboriginal Peoples, How did we get here?: A Concise, Unvarnished Account of the History of the Relationship Between Indigenous Peoples and Canada (April 2019) (Chair: Hon Lillian Eva Dyck) at 22, online (pdf): <sencanada.ca/content/sen/committee/421/APPA/Reports/APPAReport-Phase1_WEB_e.pdf>, archived: <perma.cc/4D7J-H6NS> [Committee on Aboriginal Peoples, How did we get here?].

³⁴ Act, supra note 1, s 14.

³⁵ Ibid, s 9(3).

³⁶ Ibid, s 15.

³⁷ Committee on Aboriginal Peoples, How did we get here?, supra note 33 at 46–47.