Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 57 - Evidence - June 12, 2019
OTTAWA, Wednesday, June 12, 2019
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-91, An Act respecting Indigenous languages; and Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, met this day at 12:02 p.m. to give clause-by-clause consideration to the bills.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good afternoon, everyone. Welcome to the Standing Senate Committee on Aboriginal Peoples.
Today, we are continuing with clause-by-clause consideration of Bill C-91. Before we do so, I would like to advise members that we have officials from the Department of Canadian Heritage at the table to help answer technical and other questions, if need be, as we go through the bill clause by clause.
I have already reminded senators of a number of points regarding the process last week, which I won’t repeat again today. I would like to remind all members that if at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we have the same understanding of where we are in the process.
We will start at clause 7. Senator Patterson, I believe you have a motion to withdraw.
Senator Patterson: A package has been distributed of amendments I am going to propose.
The Chair: This is a new package, I believe.
Senator Patterson: Madam Chair, from the package distributed last time I want to withdraw amendment No. DP-7.6. There were some concerns about that amendment that I’ve hopefully taken into account.
May I ask for agreement to withdraw DP-7.6?
The Chair: Do we have unanimous consent from the committee to do so?
Hon. Senators: Agreed.
Senator Patterson: Shall I speak to the new amendment?
The Chair: Yes, amendment No. DP-7.6 revised.
Senator Patterson: Madam Chair, I will try to be brief. There was concern around this table that using language similar to what exists in the Official Languages Act to establish funding levels would not work. Senator Christmas and Senator Francis spoke about how considering the number of people in an area may disadvantage smaller populations, and considering whether the spoken first language is an Indigenous language or not would disadvantage some smaller populations. Senator Francis shared an example from his home community where there’s only a minimal number of fluent speakers living.
Maybe I will move this amendment now.
The Chair: Yes.
Senator Patterson: I move:
That Bill C-91 be amended in clause 7, on page 6, by replacing the line with the following:
It’s part (c) that will hopefully give more balance to the new amendment.
I want to ensure that funding is allocated to bring all Indigenous languages up to and toward the health and vitality of English and French. The government would retain flexibility in entering into various funding arrangements as provided for in this bill, but it would help direct money to those Indigenous languages based on their specific needs.
I think that us all I need to say right now. This was done with the involvement of the law clerk.
Senator Sinclair: To clarify something before we proceed, I want to make sure we know what we’re voting on.
Did you read the whole of the revised amendment into the record?
Senator Patterson: Yes, (a), (b) and (c).
Senator LaBoucane-Benson: Senator Patterson, do you think that (c) covers off the request of the youth and care member. Remember the young people who came. One in particular was, I believe, Anishinaabeg speaker who was living in Vancouver, British Columbia. She wanted to have access to her language, not necessarily the language of the Indigenous people of that area.
I think (c) might cover that off. Do you think that it does?
Senator Patterson: Yes.
Senator Sinclair: I think it does, too.
Senator Patterson: I think the phrase “in an equitable manner” is significant.
Senator Sinclair: I want to speak in support of the revised amendment 7.6 and to indicate that it is better wording than last time. I think it will get us where we wanted to go after the discussions that occurred at the last committee meeting.
Senator Lovelace Nicholas: My question is for Senator Patterson. Like you said, Senator Francis has a small community which is the same as my communities. They are all small. Would this include courts, when an Indigenous person has to go to court?
Senator Patterson: I think we’re going to get to that.
Senator Lovelace Nicholas: Okay.
Senator Patterson: That’s the issue of government services. That is covered, but this one is about the funding that was set up under the bill. There was $333.7 million over the next five years, starting in 2019-20, with $115.7 million per year ongoing.
I think there’s now a Royal Recommendation that allows additions to those additional funding if required. We’ll get to the government services.
Senator McCallum: I want to look at paragraph (a) and “the number of persons.”
When you look at reclamation, the more threatened the language, the less the population will be. When you look at the Inuit people, they have a large population that speaks their language, but they’re in danger of losing that language.
You have the two extremes. How will this affect that? How do you give priority because there are some that have very few fluent speakers?
Senator Patterson: If I may, Madam Chair, the previous amendment I proposed has been withdrawn. It referred to “adequate and sustainable funding,” and to having regard to “the number of persons composing the Indigenous language population of an area” and to the proportion of that population to the total population. I took that out. That amendment is gone because it was seen that it wouldn’t be fair to the smaller populations and regions.
It is the use of phrases in part (c): “reclamation, revitalization,” the struggling languages; “maintenance or strengthening,” the stronger languages; and “in an equitable manner,” fair to everybody. I hope that takes care of it.
The Chair: Perhaps the officials could comment on this clause.
Hélène Laurendeau, Deputy Minister, Canadian Heritage: Compared to the one that the Honourable Senator Patterson was referring to, it is true that this one is more inclusive in terms of description.
The only caveat I would suggest to the committee, but it’s for you to judge, is that determining or enumerating only three could be interpreted as being more limiting. Perhaps a “such as” could be put in there to probably provide the balance, or if it said “determined having regard to a balance” or something that actually takes into account all three considerations together.
The Chair: Something, for example, in (2):
“In this section, adequate and sustainable funding is determined having regard to a balance of the following:”
Ms. Laurendeau: That would work very well, in my view, but once again it’s the opinion of the committee, obviously.
Senator Patterson: I am fine with that. It’s about balance. That is what this is about. I think that’s a good word.
The Chair: If you’re agreed, we need to have it translated and then bring it back when the translation is done. That should be fairly quickly.
Senator Christmas, did you have a question, or should we wait until we get the French version?
Senator Christmas: No. I think this is a different nuance on the clause. Senator Patterson, I am trying to understand (a) and (b). Forgive me if I am wrong, but I am trying to use examples in my head.
For instance, it is a “number of persons,” let’s say 100, in (a). In (b) it is “the use and vitality of the Indigenous language,” let’s say in a community of 100 that has 10 fluent speakers. Then we have another community of 100 that has 80 fluent speakers.
I am trying to understand how this section would treat each of those communities.
Senator Patterson: That is where part (c) comes in. Part (c) sets out the objective, “reclamation, revitalization,” which speaks to the 10 out of 100. Then “maintenance or strengthening” speaks to the stronger, and then it adds in “in an equitable manner.”
There are going to be funding applications. There will be a limited pool. The officials will need to try to distribute the funds equitably, and this is the statutory guidelines they will have.
Senator Christmas: Clause (c), then, covers the whole spectrum of Indigenous languages right from reclamation, revitalization, maintenance and strengthening. Any group that falls within any of that spectrum would be able to access funding.
Senator Patterson: Yes.
The Chair: Senator McCallum, did you have another question?
Senator McCallum: On that, yes. You said there is a limited pool, but yet you say, “adequate and sustainable funding.”
Senator Patterson: I was just saying that the government set up $333 million, and we all know that’s not enough.
Senator McCallum: Yes.
Senator Patterson: I am just speculating that even if they add to that $333 million, there will still be a lot of demands that we can forecast. That’s why they need these statutory guidelines.
The object is balance and fairness, and I think it has improved.
Senator Sinclair: Since we’re going to have this translated into French, I want to be sure that we adequately address how the language should look.
I reference Senator Patterson on this point. Rather than simply saying, “having regard to a balance of,” I would suggest that we say, “having regard to a balancing of the following factors.”
The Chair: Could you repeat that?
Senator Sinclair: We would add the words, “a balancing of the following factors.”
The Chair: We need agreement on this before it goes to translation.
Senator Sinclair: That is why I am asking for Senator Patterson to indicate whether he supports it.
Senator Patterson: It’s better, yes.
The Chair: Does the committee agree to this subamendment?
Hon. Senators: Agreed.
The Chair: It will be translated into French, and then we’ll come back to deal with the clauses as a whole.
The next is No. 8.6.
Senator Patterson: I move:
That Bill C-91 be amended in clause 8, on page 6, by replacing line 11 with the following:
“arrangements with them for purposes such as providing Indigenous language programs and services in relation to education, health and the administration of justice — to coordinate efforts to effi-”;
This is about the ability of the minister to cooperate with provincial governments, Indigenous governments or other Indigenous governing bodies, Indigenous organizations or other entities.
The annex submitted by ITK mentioned some concerns that are wholly within the jurisdiction of provincial and territorial governments, such as education, health and justice. National Chief Perry Bellegarde asked our committee during his appearance:
Now the federal government already transfers billions of dollars to provincial/territorial governments for education. Where is it in that agreement that dictates or says that Indigenous language revitalization should be part of that education that’s already transferred? It is not reflected in that anywhere.
While the national chief made the point of stating his belief, the bill is mainly focused on areas within federal jurisdiction. It is not to say we cannot provide some direction for the cooperative agreements that could be formed under section 8 of the bill. It allows the federal government to enter into agreements with provinces.
It is important for the overall health of a language to introduce that language as early as possible. This amendment attempts to recognize education, health and the administration of justice. Provincial jurisdiction is your concern, Senator Lovelace Nicholas. The arrangements should allow for provinces to deliver language programs funded by the federal government in areas of their jurisdiction.
The Chair: Are there questions or comments from our officials? Perhaps I could ask: Have you spoken about or seen these amendments prior to this meeting or the last meeting?
Ms. Laurendeau: We had the opportunity to look at them since the last meeting, yes.
The Chair: Good.
Ms. Laurendeau: In terms of comment, it is an element of clarification that could act as an encouragement for some cooperation, as Senator Patterson mentioned.
Senator Sinclair: I support the amendment, so I want to encourage it. I want to comment, though, upon the language used in indicating that this was wholly within provincial jurisdiction.
The reality is that when it comes to Indigenous people, the federal government has total jurisdiction. In a way there is a combined jurisdictional issue here that we need to recognize as well. I don’t want to accept the argument that we are intruding into provincial territory here.
If you look at the Indian Act, as an example, it has extensive provisions of education of Indian children, education being a provincial jurisdiction but the federal government exercised total jurisdiction over education matters involving Indian kids. That was a clear exercise of federal jurisdiction, despite the fact that the provinces also had jurisdiction.
Having said all of that, I concur with the amendment. I think it clarifies things a bit.
The Chair: Are we ready for the question?
Senator Patterson: I agree.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in the amendment?
Hon. Senators: Agreed.
The Chair: Agreed. Motion carried.
We have another MS-8.6 amendment.
Senator Patterson: I move:
That Bill C-91 be amended in clause 8, on page 6, by replacing lines 16 and 17 with the following:
“tions of Indigenous governing bodies.”.
The Chair: Is there any explanation?
Senator Sinclair: The way the bill is now worded, it gives potential for the provinces to be given exclusive jurisdiction or overriding jurisdiction over Indigenous governing bodies. It has to be recognized that by removing the reference to provinces and territories it allows the Indigenous governing bodies to have jurisdiction within their territory, so that we are not taking away from their powers and jurisdictions by referencing provinces and territories.
I’ve had that concern not only with regard to this act but with regard to the Indigenous Child Welfare Act as well. Just for clarification, this section would read:
The Minister may cooperate with provincial or territorial governments, Indigenous governments or other Indigenous governing bodies, Indigenous organizations or other entities — including by entering into agreements or arrangements with them — to coordinate efforts to efficiently and effectively support Indigenous languages in Canada in a manner consistent with the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and the powers and jurisdictions of Indigenous governing bodies.
To be clear about what I am trying to achieve here, I do not want provincial and territorial powers and jurisdictions to override the jurisdiction of Indigenous governing bodies.
The Chair: Questions or comments? Are we ready for the question?
Senator Sinclair: Question.
Some Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in the amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clause 8, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed. Motion carried.
We now move to clause 9. I believe we have an amendment by Senator Sinclair.
Senator Sinclair: I move:
That Bill C-91 be amended in clause 9, on page 6, by replacing lines 24 and 25 with the following:
“of Indigenous governing bodies, the Minister and an appropriate Minister may.”
The relevant provisions of the section would read, “Taking into account the unique circumstances and needs of Indigenous groups, communities and peoples and the research or studies referred to in section 24, in a manner consistent with the rights of Indigenous peoples, recognized and affirmed by section 35 of the Constitution Act, 1982, and the powers and jurisdictions of Indigenous governing bodies, the minister and an appropriate minister may . . . ,”
Again, the reference to provinces and territories would be removed from that particular provision for the same reason that it was removed from the last one.
The Chair: Questions or comments?
Senator McInnis: For the drafters of this bill what was the logic of putting the provinces and territories in there?
Senator Sinclair: You’ll have to ask them.
Senator McInnis: There had to be some compelling reason as to why it was there, and now we’re removing it.
Ms. Laurendeau: The intent behind it was that in referring to the Constitution we were referring to all elements covered by the Constitution, the rights of Indigenous peoples in section 35, the right of governance of Indigenous governments and the division of power of the provinces and territories. That was the intent. It was for clarity, to have all the components of the Constitution referred in that.
Senator McInnis: I would like you to say it again, if you wouldn’t mind.
Ms. Laurendeau: I will try to project better, honourable senator.
The idea behind doing the enumeration was to cover all the components referred to in the section. It referred to the Constitution of 1982, but also obliquely, by referring to the provinces and territories, referred to the division of power.
It definitely referred to the rights of Indigenous peoples, the powers of Indigenous governments and the powers of provinces and territories as part of an enumeration of the things covered by the Constitution.
Senator McInnis: Why are we removing it?
Ms. Laurendeau: The amendment is from the senator.
Senator McInnis: I know, but I am asking you why you would.
Ms. Laurendeau: It would beg the question of completeness. At the same time, to be fair, the Constitution is on top of any legislation. Technically, without the enumeration being complete, the Constitution would still apply.
However, because there was a reference to the Constitution, for completeness it included all the components. Legislation of that nature couldn’t override the division of power that is constitutionally determined.
It was a matter of being more precise by the reading of the section, but from a legal standpoint it doesn’t obliterate the division of power in the Constitution if it’s not there.
Senator Patterson: Senator Sinclair, the amendment you proposed doesn’t take the provinces and territories out of the picture, does it?
Senator Sinclair: No.
Senator Patterson: It just redefines or clarifies the rights of Indigenous governments.
Senator Sinclair: The jurisdictions of the provinces and territories are defined by the Constitution. What I am trying to do in this particular amendment is to ensure that the bill does not limit the powers and jurisdictions of Indigenous governments to make them subservient to the powers and jurisdictions of provinces via federal legislation, which the federal government can do by legislation passed under section 91(24) of the Constitution Act, 1867.
This should be read by looking at clause 9 and the words, “Taking into account the unique circumstances and needs of Indigenous groups;” then by going to line 21, “and in a manner consistent with;” and then jumping down to line 24, “the powers and jurisdictions . . . of the provinces and territories,”
In other words, I think the federal government inadvertently said to itself that they could only enter into agreements with Indigenous peoples in a manner consistent with provincial and territorial jurisdiction. I don’t think they intended to do that. If they did, I don’t think they should have done that. The particular amendment I am proposing takes out the limitation that we are limited to what the provinces and territories want.
As an example, by this provision the provinces would have the authority to say that they do not want the federal government funding Indigenous education program for their students in their schools, despite the fact that they have an Indigenous agency that is prepared to run the program, and that they will not give them space or provide them with an opportunity to learn the language. Without it, it becomes a question of whether it is a language right that the courts are prepared to enforce.
The Chair: Are we ready for the question?
An Hon. Senator: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clause 9, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Agreed. Motion carried.
Now we deal with an amendment to add new clauses. Senator Sinclair.
Senator Sinclair: I have proposed clauses 10.1 and 10.2. This is after consultation with government officials, I believe. If I am wrong, they will point that out. I move:
That Bill C-91 be amended on page 7, by adding before line 7 the following:
Access to services in Indigenous languages
10.1 A federal institution or its agent or mandatary may, in accordance with the regulations, provide access to services in an Indigenous language, if the institution or its agent or mandatary has the capacity to do so and there is sufficient demand for access to those services in that language.
Agreements or arrangements
10.2 (1) An agreement or arrangement may be entered into under section 8 or 9 for the purpose of allowing a federal institution or its agent or mandatary to provide access to services in an Indigenous language.
Inconsistency or conflict
10.2 (2) In the event of any inconsistency or conflict between an agreement or arrangement referred to in subsection (1) and the regulations made under paragraph 45(1)(a.2), the agreement or arrangement prevails to the extent of the inconsistency or conflict.”.
The Chair: Is there an explanation?
Senator Sinclair: Do you want to speak to this?
Ms. Laurendeau: I will be happy to speak to it.
Basically, the explanation is to provide for the possibility of adopting regulations that are distinction based to specifically determine how federal services would be provided in Indigenous languages. Each regulation would set the parameters, and then agreements could be taken to actually provide specific services where there is demand and where capacity is present.
The language also allows for the possibility of federal government services to be provided through Indigenous institutions that would most likely have, most of the time, a better capacity to deliver services in Indigenous languages by nature of who they are and where they operate.
That’s basically the gist of this amendment.
Senator Coyle: Senator Sinclair, I believe this is very important and goes part of the way toward what I believe our Inuit witnesses were asking for. They’ve asked, though, why the language is “may” instead of “must.” I would like to get an answer to that question.
Ms. Laurendeau: The language is “may” for flexibility purposes and to make sure that we allow for the regulation to define more specifically how and when, and to provide for a certain possibility of being incremental in increasing the number of services down the road.
It’s really to take into consideration the fact that as of today it couldn’t be the flicking of a switch because of capacity and demand and because there will be a need to train and build that capacity.
The “may” allows for the coming into force, so that we can start where we can but progress toward a higher number of services across the country to be provided in Indigenous languages.
Senator Coyle: Is the mover of the amendment content with that answer?
Senator Sinclair: Yes, I am. One of the reasons for it is that the right to language is contained in other provisions of this legislation. The right to enforce your right to speak your language is elsewhere. This essentially gives flexibility to the government to provide services as and when they are requested in a manner that is in keeping with their regulatory mechanisms.
I don’t have any concern about the use of “may” because this is one of the rare circumstances where “may” actually means: When you are ready and able, you must.
Ms. Laurendeau: With your permission, Madam Chair, I would add one element of nuance. It’s also to preserve the choices of community. Some communities may not want to start with providing federal services. They may have more urgent services they would like to choose and would want to have control of having the funding going to them.
Senator Sinclair: I should have clarified that. If the language is mandatory and says “must provide,” then that means the government would have to go to the communities and say, “You must now take this program because this is a requirement for the government to ensure that you do it.”
Senator LaBoucane-Benson: This is a question for Ms. Laurendeau as well. Do you think this amendment, combined with 7.6, as revised, the “may” would also be mitigated by (a), (b) and (c)? They would be thinking about the population, revitalization and all those things around which they would probably have services.
For the Inuit, for example, with such a high population, “may” would probably become “must” because they’re much more capable, based on the three provisions in 7.6 revised.
Ms. Laurendeau: Without presuming the intention of the Inuit, you’re quite right from an analytical standpoint. In going through those criteria, along with the possibility of section 10, it could become their main priority and would be addressed through that. It would require the development of the regulation and the signing of agreements, but you’re right that it gives them the control to actually prioritize that over other things, which is not the same case for a community that is struggling with reclaiming or revitalizing, where their choice may be to focus on that and eventually move toward being able to request and obtain federal government services in their languages.
Senator McCallum: I want to go back to 10.1 where it says, “If the institution or its agent has the capacity to do so.” Part of the problems the witnesses brought forward was that they don’t have trained health professionals or teachers fluent in the language. If you have “if,” how do you push that institution to work toward the capacity to do so?
I think that’s very important. Otherwise it’s going to remain the same.
Ms. Laurendeau: It is clear that conditioning by the capacity is creating a pressure and an obligation to actually build that capacity. At the same time, we need to be very sensitive to the fact that in our broad consultations people were wary that if we created a black and white obligation on the federal government, the money would go to train federal public servants to actually do certain things.
We wanted to come up with something that would have the right balance and would keep the choice in the hands of the people. You’re quite right that if the capacity is not there, the first obligation will probably be to build that capacity. I would daresay that some of the conversations that we’re having with the Government of Nunavut and NTI are around that. They would like to collectively deliver services in Inuktut, but they know there’s a challenge in having teachers. The first step is to say: How do we move in the direction of building capacity, having a critical mass and being able to expand the program?
It leaves the decision making not with bureaucrats in Ottawa, I say that humbly, but in partnership with the Indigenous people based on what is their choice. I hope that answers your question, honourable senator.
The Chair: Are we ready for the question?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall the new clauses 10.1 and 10.2 carry?
Hon. Senators: Agreed.
The Chair: Carried.
We now move to clause 11, and Senator Patterson has an amendment.
Senator Patterson: This was in the previous package. I move:
That Bill C-91 be amended in clause 11, on page 7,
I hope this will address your concern, Senator Lovelace Nicholas.
We heard from several Inuit witnesses that with the Nunavummiut will continue to be treated as second or third class citizens when they communicate or receive services from federal departments or federally regulated bodies operating in our territory, as these services or programs are insufficient or not provided in Inuktitut. That was from the Minister of Education. We also heard of the importance of accessing federal services from President Kotierk and President Obed, and the Languages Commissioner of Nunavut said that even though their Language Protection Act, which requires every organization in Nunavut to comply with providing services in Inuktut, is not being respected by the federal government.
This amendment would address concerns raised by the witnesses and in the annex that was proposed by the Inuit. I am proposing an amendment that would allow for federal services to be provided in an Indigenous language, much like translation services and interpretation services are currently listed under section 11 of the bill. This goes a little further. This goes beyond documents and interpretation services, to other federal programs and services.
By the way, it’s not just for Inuktut. It’s for Indigenous languages in the country. It uses the qualification of where the numbers of speakers of that language warrant. That language that is used in the Official Languages Act for French and English. Minister Rodriguez stated in his appearance:
We are open, for example, to amendments on access to languages of service because we understand the importance of that.
We may have colleagues that would prefer to see this as mandatory, but in discussions with the minister’s office I believe that “may” will achieve what we want in a way that leaves the government with flexibility. As Senator Sinclair said, Aboriginal rights include language rights, as stated in the bill.
That’s is a moral but not a legal imperative that should allow for progress in this area. There are lots of examples that I probably don’t need to outline. CRA taxes is one example people really don’t like in any language, but especially if you don’t understand the language or the documents.
This is progress. We have had some signals that the minister will be open to expanding the services of this amendment.
Ms. Laurendeau: The comment I would make is in light of the adoption of 10.1. I will have to seek advice as to whether or not there is some potential for confusion between the two. I am not stating that. It’s a question I have in my head. When 10.1 was put forward, it had a lot of emphasis on making sure that the regulations were distinction based. It’s not 100 per cent clear in my head whether or not there’s an overlap between those two.
Once again, I am not making a dictum here. I am just saying this question arises in my head in light of 10.1.
The Chair: If there’s an overlap, would it be a problem or is it just an overlap?
Ms. Laurendeau: Well, it could be a problem if it’s an overlap that contradicts. It could actually just need to be read together. It may have to be moved back to the regulatory authorities so that we don’t offset the flexibility that was built in the new 10.1 and one doesn’t trump the other.
I am not trying to be confusing here. It is just that there are various sources of those amendments. Our suggestion would be that 10.1 is complete, but we would have to think whether or not there is a possibility for confusion between the two. They pretty much deal with the same thing, although this one talks about geographic area and the number of people who speak, while 10.1 is a little broader.
Senator Patterson: Madam Chair, why don’t we let the minister sort that out and go ahead with both amendments?
The Chair: That is a good suggestion.
Senator Sinclair: Generally, I support the proposal from Senator Patterson. I don’t see them as being inconsistent, but I do see them as being complementary. I am not concerned about that. Ultimately, the department will have to do an analysis to determine if there’s any problem from their end of things. We’ll hear back from them when it comes to the message.
I would support the amendment. I have a question about why you switched the word “or” out and inserted the word “and” in 11(a). Did you have a rationale for that? It just seemed to read better with the “or” in the water, so to speak.
Senator Patterson: Is there an “and” here that doesn’t make sense? Did I hear you correctly?
Senator Sinclair: Your amendment would change the word “or” to “and” in 11(a). You’re combining (a) and (b) together and then your paragraph (c) becomes an alternative by using the word “or.” I just wondered what the rationale was there, or did you give that much thought?
Senator Patterson: Maybe it was inadvertent. Does “and” works better?
Senator Sinclair: I think “or” works better. Rather than joining two together and leaving one standing alone, it makes all three of them alternative approaches. Do you want to consider that?
Senator Patterson: No, let’s do it. Thank you.
Senator Sinclair: That would do take the first clause of your amendment, the first clause being by replacing line 9 with the following: “into an Indigenous language,” and to take that line out of your amendment and move to your (b) and (c).
Do you see what I am doing? All the first line in your proposed amendment, “By replacing line 9 with the following,” does is change the word “or” to “and.”
Senator Patterson: Do we delete part (a) of my amendment?
Senator Sinclair: Are you agreeable to that?
Senator Patterson: Yes.
Senator Sinclair: He withdraws that, and the rest remains.
The Chair: Yes. We’ll have to have a motion to adopt the amendment to his original motion.
Senator Sinclair: The amendment, as amended.
The Chair: Does the committee agree to removing “(a) by replacing line 9” with the following: “Into an Indigenous language,” and amending the original amendment to reflect that change? That would apply to the French version as well.
Senator Sinclair: That’s the best approach.
The Chair: Has the amended amendment been adopted?
Hon. Senators: Agreed.
The Chair: We need clarification with regard to the intervention of the minister. Were we meaning that the deputy minister would contact the minister today, before the end of the meeting, or are we adopting the clause as is and then waiting for them to do it?
Senator Sinclair: Senator Patterson and I would prefer that we proceed with amending the bill as we see fit and then waiting for the message to come back from the house.
The Chair: Are we ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the amended motion in amendment?
Hon. Senators: Agreed.
The Chair: Agreed. Motion carried.
Shall clause 11, as amended, carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clauses 12 to 22 carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Now we move to clause 23, and Senator Patterson has an amendment.
Senator Patterson: I move:
That Bill C-91 be amended in clause 23,
(a) On page 9, by replacing line 14 with the following:
“23 (1) The mandate of the Office is to”; and
(b) On page 10, add the following after line 9:
“(2) In fulfilling its mandate, the Office must, where appropriate, consult and coordinate with any provincial or territorial entity that is responsible for the promotion, revitalization or protection of Indigenous languages.”.
This came as a result of the testimony of the official language commissioner for Nunavut, Helen Klengenberg, who appeared before our committee and said about the federal commissioner:
I want to talk about the position of Commissioner of Indigenous Languages under clause 13 of Bill C-91 because I think that the office will not have the powers and responsibilities that I have in Nunavut. I think it will be a duplication of services and an unwise use of public funds that could be used instead to enhance what is already in place in Canada. There are many jurisdictions, as we heard from my colleague in the Northwest Territories, where there are organizations wanting to provide their own programs and services, and we have that in place. I believe it is the same in Nunavut as it is in the Northwest Territories. The only existing legislation that protects us and provides us to use our language is the Inuit Language Protection Act.
Shannon Gullberg, Official Languages Commissioner of N.W.T., echoed those concerns:
I absolutely agree with Ms. Klengenberg that you don’t want to step on each other’s toes, but I believe there’s also room for a great deal of information sharing and support in the system. I think things like that are prime examples of where that occurs.
This amendment simply requires that:
In fulfilling its mandate, the federal languages commissioner must, where appropriate, consult and coordinate with any provincial or territorial entity that is responsible for the promotion, revitalization or protection of Indigenous languages.
This has been discussed with the department, and the minister might have addressed it. There is no desire not to cooperate with language commissioners. I think our colleague Senator Watt actually initiated a language commissioner for Nunavik as well. There should be cooperation here, which is the intent of the amendment.
The Chair: Questions or comments?
Senator McCallum: When you say, “the Office must, where appropriate, consult and coordinate with any provincial or territorial entity,” what about Indigenous organizations that are responsible?
Senator Patterson: I guess I am not aware of any, but if they should develop —
Senator McCallum: Aren’t there some land claims on language or self-government that won’t go into their jurisdiction?
Senator Sinclair: For information purposes, I know that some of the ongoing self-government negotiations in British Columbia are negotiating, among other things, the funding of language commissioners within their particular territory, but no one has succeeded in getting an agreement in place yet that has that provision.
It’s at the table anyway. In the future, one could potentially see language commissioners for each of the future treaty areas covered by land claim settlements. There is quite a number.
Senator Patterson: How would you word that?
Senator Sinclair: I would add the word “Indigenous” in front of “provincial,” to read, “coordinate with any Indigenous, provincial or territorial entity.”
Senator Patterson: “Entity” might work.
Senator Sinclair: We’re using “provincial or territorial entity.” “Indigenous entity” would be a sufficient reference in this case.
Are you okay with that, Senator Patterson? Senator Patterson agrees.
The Chair: Is there a motion to amend this amendment to add the word, “Indigenous” between the words “any” and “provincial?”
Senator Sinclair: Senator McCallum moves that.
Senator McCallum: I move that “Indigenous” be put in there.
The Chair: Is the committee in agreement? Shall the motion carry?
Hon. Senators: Agreed.
The Chair: The amendment has been amended. We’ll have it translated and come back to it. You are just trying to confuse me.
Now we’re moving to clause 24. Senator Sinclair, you have an amendment.
Senator Sinclair: I think the numbering on the document heading is wrong. Anyway, I move:
That Bill C-91, be amended in clause 24, on page 10, by replacing line 26 with the following:
“that contributed to that research or study. Subject to any law, the Office”
That matter was discussed with the department. The department is concerned about copyright issues and privacy rights. Those are legitimate interests for us to be referencing in the legislation. Any document provided that is protected by any other legislation was not to be utilized outside of the provisions granted to the commissioner’s office.
Senator McCallum: With some of the research that I was involved in, there wasn’t a law in place. It was an agreement that the university wouldn’t publish any of it without the permission of the Indigenous group.
There wasn’t any law on it.
Senator Sinclair: In that case it’s a law. There is a law that covers it. It’s either contract law or it might be copyright legislation. It might even be a privacy issue.
There is some law that would cover a situation like that where there’s an obligation on the part of one party not to share. That means that their legal right to distribute it without question, or use it beyond the parameters of the agreement, is limited.
The Chair: Are we ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
We have another amendment, Senator Sinclair.
Senator Sinclair: I move:
That Bill C-91, be amended in clause 24, on page 10, by replacing lines 34 to 36 with the following:
“use the research or study free of charge for the purpose of reclaiming, revitalizing, maintaining or strengthening Indigenous languages. Subject to any law, the”.
If you take a look at the provision, it adds the word “study” in front of the phrase “free of charge.” It includes it on line 34. It also adds the phrase, “subject to any law,” again for the same reasons that I just explained with regard to the previous amendment, so as to protect any unauthorized use of the study, research or document.
Incidentally, this is another departmental request. The “subject to any law” request comes in a number of areas.
Hon. Senators: Agreed.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clause 24, as amended, carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clauses 25 to 44 carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Moving to clause 45, Senator Sinclair has an amendment.
Senator Sinclair: Let me take a look. The numeration system is always confusing. I move:
That Bill C-91, be amended in clause 45, on page 18, by adding after line 14 the following:
“(a.2) for the purpose of section 10.1,
(i) specifying the services to which access may be provided in an Indigenous language and the region in which a federal institution or its agent or mandatary may provide access to those services in that language,
(ii) defining the expression, “provide access to services,” and
(iii) defining the expressions, “capacity” and “demand” and specifying the circumstances in which a federal institution or its agent or mandatary has the capacity to provide access to services in an Indigenous language and those in which demand for access to services in that language is sufficient;”.
Perhaps I could explain. Again, this is a request that has come from departmental officials. They probably can best express what their desire is, but it is intended to expand upon the question of access to services and clarify what access can be provided.
I will allow the officials to explain their rationale.
Ms. Laurendeau: As the honourable senator explained, it used to give legs to the regulation-making authority to what has been stated in 10.1. I would remind the committee that 45.1, which was added in the parliamentary committee, says that the regulations under 45 have to be co-developed with Indigenous people.
It is really where you can introduce the distinction base and the specificity that actually will give life to the commitment and the obligation in 10.1 by doing it through co-development of regulations, followed by specific agreements with each Indigenous entity or government. That would be the explanation.
The Chair: Thank you.
Are we ready for the question?
Some Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
We also have an additional amendment from Senator Sinclair.
Senator Sinclair: I will not go away easily. Again this is another departmental request to amend Bill C-91 in clause 45. I move:
That Bill C-91, in clause 45, be amended by adding after line 19 on page 18 the following:
Distinctions-based approach
(2) The regulations made under paragraph (1)(a.2) may provide definitions and requirements that vary depending on
(a) the Indigenous language in question;
(b) the use and vitality of that language;
(c) the unique circumstances and needs of an Indigenous group, community or people that uses that language;
(d) the region where that language is used; and
(e) the federal institution or its agent or mandatary that may provide access to services in that language.
This is a partner amendment to the one we just dealt with. Let me invite officials to speak to it.
Ms. Laurendeau: Very briefly, this gives very clear guidelines as to what needs to be defined in those regulations. Once again, it’s to reinforce that it has to be specific to each group with whom we co-develop. It also makes clear that a definition of one regulation may be significantly different from that of another regulation that served the same purpose, which is to define capacity, distinction-based condition and things like that. The fact is that those realities will dictate for different definitions in any given circumstance.
It’s the partner piece to the first part. The first part is the what. The second part is clear enumeration of the things that need to be defined in a very specific way for each group.
The Chair: Are we ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clause 45, as amended, carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clauses 46 to 49 carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
We now have an amendment from Senator Sinclair. It looks like it is a inserting a new clause.
Senator Sinclair: I have an amendment to clause 49.1 to reduce the five-year review to a three-year review. Let me read the amendment to you. I move:
That Bill C-91 be amended in clause 49.1, on page 19:
(a) by replacing line 32 with the following:
“49.1 As soon as feasible after the third anniversary of the”; and
(b) by replacing line 34 with the following:
“subsequent third anniversary, a review of this Act and of”.
That’s the amendment I propose. Essentially, the intention is to require that the Indigenous languages legislation or law created by this bill would be subject to three-year reviews and not five-year reviews.
Senator Patterson: Perhaps I could ask the deputy minister a question.
How long do you think it will take to set up the language commissioner and the commission? I think there are representatives of the Indigenous nations in Canada, and there will be a consultation process. Do you have an estimate of how long that will take, please?
Ms. Laurendeau: We’re hoping to have it done within a year, bearing in mind that there will probably be an election very soon. We’re hoping to start the process, agree with the partners as to how we would proceed, and then proceed with the process to actually be able to be in a position within a year to make appointments and then set up the office.
The Chair: Are we ready for the question?
Senator Patterson: In light of that I am wondering, Senator Sinclair, if you think the commissioner will probably be just off the ground after. Is there enough time?
Senator Sinclair: I don’t know what the plan is on the part of the government and the officials. I note for the record that the coming into force of this legislation is by proclamation. My guess would be that they will proclaim it once they have all of their ducks lined up, including the potential for the commissioner’s office to be established.
If they don’t do it that way, then they’re not acting logically. I am not going to presume that they won’t. I think that’s the way it’s likely to roll out. I don’t have a grave concern. Even if it were the case that they didn’t have a commissioner’s office in place and all set up, that would be part of the review that would come back to the Senate and the House of Commons.
The Chair: I see the deputy minister was nodding in agreement.
Ms. Laurendeau: Yes. If we are competent, I would say that the plan would take those things into consideration, and I want to assume that we are competent.
The Chair: Are we ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
We now have another amendment from Senator Coyle.
Senator Coyle: The amendments we passed prior to this one have gone a fair degree in the direction that we hoped this piece of legislation would for the unique situation of the Inuktut language, particularly in Nunavut. We heard a lot about that and we heard from a lot of people who were not very happy.
The Chair: Would you move your amendment by reading it out, Senator Coyle?
Senator Coyle: I was just doing the background. It is consistent with the previous amendment. I move:
That Bill C-91 be amended on page 20, by adding the following after line 2:
“Review — Inuktut in Nunavut
49.2 (1) No later than the third anniversary after the day on which this subsection comes into force, the Minister must prepare — in consultation with Inuit organizations and Indigenous governing bodies in Nunavut — a report on the availability and quality of federal government services provided in Inuktut in Nunavut.
(2) The report must set out the Minister’s findings, conclusions and recommendations as well as provide a summary of the consultations that took place in accordance with subsection (1).
(3) The Minister must cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which the House is sitting after the day on which the report is completed.”.
The Chair: Now you can make the explanation.
Senator Coyle: I usually go the other way.
My explanation is what I have already said. This is out of respect for what we’ve heard and the unique circumstances. We really cannot argue with the unique circumstances of the Inuit, particularly the Inuit in Nunavut. They have their own territory. They have a language that has a very specific issue right now in that it is the majority language but it’s losing ground very quickly.
This is to further hold the government’s feet to the fire. We want the government’s feet held to the fire on everything in this bill. We want to single this out, to emphasize what we have heard and to respect what we have heard. In this way, it is complementary to everything else that we’ve done for everybody. That’s why I am proposing this.
Senator Sinclair: I have a question for Senator Coyle. The issue of the state of the Inuit language was raised by a number of parties before us. I concur that it’s worthwhile for us to consider an amendment like this one. I wonder if restricting it to Nunavut is a good idea, only because I can hear the Inuit people in the Northwest Territories and the Inuvialuit people in the Western Arctic expressing concerns similar to what the Inuit people of Nunavut have been expressing.
Senator Coyle: And the Nunatsiavut area.
Senator Sinclair: And the Nunavik in northern Quebec.
I wonder if we should restrict it geographically in that way. Is there a reason why you wouldn’t want to expand it to include a reference to the language generally as opposed to their language by geography?
Senator Coyle: This came to us from Nunavut. It is a territory on to itself. That is why. I am not averse to an amendment to this or a friendly change to this.
Senator Simons: I’d like to hear from Senator Patterson on this point. This is his home territory.
Senator Coyle: Senator Patterson and I are both on the Arctic Committee. We have been working together to try to accommodate but, yes, of course.
Senator Simons: I am not saying I don’t believe. I need all of this. I am just curious to hear his perspective.
Senator Patterson: I welcome this amendment, but it’s not just Nunavut where there are Inuit who speak Inuktut. I’d be happy to see the word “Nunavut” replaced by “Canada” in the amendment. There are two places there.
Senator Sinclair: I will move the following amendment:
That, in line 3, the word “Nunavut” be replaced by the word “Canada,” and that, in line 4 of subclause 49.2(1), the word “Nunavut” be replaced by the word “Canada.”
Senator Patterson: Agreed.
The Chair: Senator Patterson, I may have missed this, but are we leaving in the word “Nunavut” at the conclusion of 49.2(1)?
Senator Sinclair: We’re changing both references.
The Chair: We’re deleting it. I just want to be clear. I missed that.
Senator Sinclair: My motion was to replace “Nunavut” in lines 3 and 4 with the word “Canada” in both places in 49.2(1) of Senator Coyle’s amendment.
The Chair: To be clear, you’ve already changed it in the title.
Senator Sinclair: Is that the title that you wanted in the bill? Okay.
The Chair: There are three places.
Hon. Senators: Agreed.
The Chair: In the French as well.
Hon. Senators: Agreed.
The Chair: We have agreed to the subamendment.
Is it your pleasure, honourable senators, to adopt the amended motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall the new clause 49.2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 50 carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
One of the amendments of Senator Patterson has been translated and reformatted. It will be handed out to senators. Going back to clause 23, on page 9, DP-23.9 has been amended and translated.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clause 23, as amended, carry?
Hon. Senators: Agreed.
The Chair: Thank you.
We’re still awaiting one more amended clause, but we’ll go back now to the preamble. We have an amendment from Senator Patterson with regard to the preamble.
Senator Patterson: I want to credit Senator McPhedran, who drafted this amendment in close collaboration with ITK. She was unable to be here when we started clause by clause, so I agreed to put it forward on her behalf.
This comes with the support of ITK. It was in their proposed annex to this bill that we saw. The annex asked that we affirm certain principles, such as the fact that Inuit Nunangat is the Inuit homeland of Canada. Inuktut is an original language of Canada and is spoken as the first language of the majority of Inuit Nunangat residents. Effective public administration in Inuit —
The Chair: I am sorry to interrupt you. Would you move the amendment, please?
Senator Patterson: I should move the amendment, yes. I move:
That Bill C-91 be amended in the preamble, on page 2, by adding the following after line 12:
“Whereas Inuktut is the first language of Inuit Nunangat and is the first language of the majority of Inuit Nunangat residents and the Government of Canada is committed to maintaining, revitalizing and promoting Inuktut;”.
The Honourable David Joanasie, Minister of Education, Minister of Culture and Heritage and Minister of Languages, appeared before our committee and told us, on April 2:
Our youth, our elders and Nunavummiut must feel confident that the language of our ancestors and that of our descendants will be recognized by our country and treated with dignity within our homeland.
In recognition of the unique situation of Inuktut and its prevalence and relative strength within Inuit Nunangat, I believe we should consider inserting a reference to these principles the preamble of the bill. We would ensure, in doing so, that the bill is interpreted in such a way that respects and treats with dignity Inuit culture and language throughout Inuit Nunangat.
I won’t go into all the evidence, but there were some concerns that there needed to be a little more recognition of Inuktut in the bill and even in the consultation process.
Senator Sinclair: I concur with the proposed amendment. I think it makes sense. It certainly highlights, for the people who are reading the legislation, the importance that we placed upon the language.
I would encourage everyone to support it.
The Chair: Are we ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall the preamble, as amended, carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Senator Lovelace Nicholas: I’d like to ask whether this whole bill will be recognized in the Official Languages Act.
Ms. Laurendeau: All the legislation has to be read together. When the bill is adopted, it will have to be read and interpreted in light of every other piece of Canadian legislation, including the Official Languages Act.
Senator Lovelace Nicholas: Thank you.
The Chair: When that copy comes back, we will have concluded clause-by-clause consideration and then we can move to adopt the bill, as amended. I believe it’s being printed as we speak.
Senators, we have received the final amended version of an amendment from Senator Patterson, DP-7.6, in English and in French. We’ve already discussed it and approved it. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Thank you. Motion carried.
Shall clause 7, as amended, carry?
Hon. Senators: Agreed.
The Chair: Thank you. Motion carried.
Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make technical, numerical and typographical changes and adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Motion carried.
Does the committee wish to consider appending observations to the report? No?
Senator Patterson: I think the amendments speak for themselves.
Senator LaBoucane-Benson: I have a question. When the letter comes back and the message comes back, can we make observations then if we didn’t get some of the things we think are important?
Senator Sinclair: Observations now.
Senator LaBoucane-Benson: Now?
The Chair: The report will already have been tabled. You can present observations by standing in the Senate Chamber, but they wouldn’t be included in the committee report.
Senator LaBoucane-Benson: Thank you, chair.
The Chair: Is it agreed that I report this bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chair: Thank you. Motion carried. We have concluded the business with Bill C-91.
The clerk is now distributing the amendments. We will turn our attention to Bill C-92. They are distributing the amendments right now. This afternoon, we will proceed to clause-by-clause consideration of Bill C-92. Before doing so, I would like to advise members that we have officials from Indigenous Services Canada and Justice Canada at the table to help answer technical or other questions, if need be, as we go through the bill clause by clause.
I have already reminded senators of a number of points regarding the process last week, which I won’t repeat. I would like to remind all members that if at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we have the same understanding of where we are in the process.
Is it agreed that the committee proceeds to clause-by-clause consideration of Bill C-92, An Act respecting First Nations, Inuit and Metis children, youth and families?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Motion carried.
With leave, is it agreed to group clauses for which we have no amendments identified in the road map?
Hon. Senators: Agreed.
The Chair: Thank you, senators. Agreed.
Shall clause 1 carry?
Senator Patterson: Madam Chair, I have put together some amendments. I am going to try to be as organized as I can in presenting them. I am glad we have the officials here to assist us because some of them are technical.
The first amendment is 1.3a. I move:
That Bill C-92 be amended in clause 1, on page 3, by replacing line 10 with the following:
“longs, but does not include a foster parent. (fournisseur de soins)”.
We discussed this in committee, and we wanted to emphasize the important role of an Indigenous person for the natural parents and the community. There were recommendations that including foster parents in that definition could add to the prejudice of the natural family and the community. That is what is behind this amendment.
Senator LaBoucane-Benson: I want to support what Senator Patterson is saying. We spoke about this one a lot. I’ve had concerns about it because in many provinces across Canada non-Indigenous foster parents do not have standing. This was an amendment that I thought might work by clarifying the definition of care provider so that it would be clearer when the care provider is brought up in 13.1 around standing.
I believe this would be any family whose only connection with the child is through a court order. That would be the meaning of foster parents. I think that would satisfy the concerns I have had at committee. I have a feeling there might be feedback on that.
Senator McCallum: What if the foster parent is Indigenous and part of the family group?
I have another question. When children are in permanent custody, do they have a care provider or what happens there?
Senator LaBoucane-Benson: If they are permanent wards of the government, they are in foster care, yes. They are potentially being adopted. Once you’re a permanent ward of the government, the next step would be to move toward adoption into another family.
Senator McCallum: Permanent seems to mean that they’ve passed that line, the threshold. If they’re in permanent custody, how would that affect care providers if they are Indigenous foster parents?
Senator LaBoucane-Benson: You’re outlining the issue here. How could this care provider definition be amended? How do we make sure that the people whose only connection to the child is through a court order, and not culture or language, aren’t elevated to have standing? How do we make sure that broadly defined Indigenous family members have standing? I don’t know how to fix that.
Senator McCallum: Yes. A lot of the foster parents I deal with as a health professional are Indigenous and are part of the family, so you don’t really want to exclude them.
The Chair: Could the officials help us out here?
Senator Patterson: Good idea.
Isa Gros-Louis, Director General, Child and Family Services Reform, Indigenous Services Canada: Yes, we totally agree with your point of view. That is why we had crafted the bill as is, so as to not penalize Indigenous foster families.
Furthermore, once an Indigenous group develops the laws, they can then define who would be the care provider in their own definition.
Senator McCallum: In some communities you will not have enough Indigenous people who can become care providers. If you have a non-Indigenous family that is a care provider, how will that be taken into consideration?
Ms. Gros-Louis: I would like to point out the order of placement in this legislation. It does go to a parent, a member of the family, a member of the community or a member of the same nation. That doesn’t mean that the child has to be put in a family within the community itself. For example, if the child is Cree, it could be within the extended Cree nation. It provides for broader possibilities of placement than just within the community.
Senator McCallum: In that case I am concerned.
Marcus Léonard, Social Policy Researcher, Child and Family Services Reform, Indigenous Services Canada: To be clear, Senator McCallum, we agree that the definition should not be amended. We believe there would be important unintended consequences to doing it. This is something we’ve heard. We do not want to make the current systems unstable and want to leave that decision to Indigenous groups. We left the definition of care provider as it was currently written.
Again, we thought of different scenarios. For example, you were mentioning whether we could exclude something else like a foster parent appointed by court order. The problem with that would be that some Indigenous foster parents were appointed by court order. We don’t believe that it’s in this bill that this issue should be resolved. Rather, Indigenous groups should make their own definitions of care providers and decide whether foster parents should be excluded.
The bill is really a framework. We wanted to go as little into the details as we could go. That’s one of the details we believe should be established based on the priorities of the communities.
Senator Sinclair: I generally support the idea and the principle behind the proposed amendment. The difficulty I see is that there is no definition of foster parent in this legislation or in any related legislation. We’re making an assumption here that a foster parent is put in place by a court order. That isn’t necessarily the case. Sometimes a foster parent is put in place through an agreement with another family and family placement.
The other concern I have is that sometimes the arrangement made between the agency and the so-called foster parent is intended to be a permanent but non-adoptive placement because that is determined to be in the best interests of the child. If I am reading this amendment correctly, what can happen is that the foster family then has no rights with regard to the child because of the amendment that is being put in place here.
It may be that there are some unintended consequences that I want us to think about carefully, and I don’t know that we’ve captured everything. I generally agree that foster parents shouldn’t be allowed to stand between the child and the family when the agency determines otherwise. We have lots of instances where foster families will go to court to keep the child from being returned to his parents, and courts have allowed that to happen and have generally accepted the principle. I don’t think that should be permitted because they often argue that a bonding has already occurred with the foster family which they are reluctant to break.
I want us to be careful about the unintended consequence of the amendment. That part concerns me.
Senator Patterson: Having heard everyone, I think it might be best for me to withdraw this amendment.
The Chair: Is there leave of the committee to withdraw it?
Hon. Senators: Agreed.
The Chair: This amendment has been withdrawn.
The next one, Senator Patterson.
Senator Patterson: This is 1.3b. I move:
That Bill C-92 be amended in clause 1, on page 3, by replacing lines 11 to 13 with the following:
“child and family services means services to protect children from maltreatment and to assist families in safely caring for their children, including primary, secondary and tertiary prevention services, child protection services, guardianship, post-majority care and adoption.”.
The Chair: And your explanation?
Senator Patterson: This is obviously a much broader definition. The current definition is that child and family services means services to support children and families, including prevention services, early intervention services and child protection services.
Based on the testimonies of several witnesses who spoke before our committee, there’s a concern the definition is too narrow. The existing provincial and territorial legislation that governs the provision of child and family services also include varying and oftentimes vague definitions of child and family welfare services.
A lack of a clear definition may result in limitations to the types of services that First Nations may choose to exercise jurisdiction over and could lead to delays and denials of vital services for Indigenous children and families.
The Government of Nunavut points out that under the current Nunavut Child and Family Services Act, this could include customary adoptions, determination of parentage in families, parental decision making, program delivery and assistance for 19-year-olds to 26-year-olds. The Carrier Sekani Family Services brief said:
. . . Bill C-92 leaves out guardianship services for children in care, post-majority care and adoption . . . it is vital to protect the range of services a First Nation may choose to include in their child and family services program. For greater clarity, the exclusion of these services creates increased jurisdictional and funding uncertainty for First Nations wanting to assert laws.
Professor Cindy Blackstock also called for a definition of child and family services that covers a wider range of services, including services to protect children from maltreatment, post-majority care services, guardianship and adoption services.
There were other witnesses, including Isa Gros-Louis, Director General of Child and Family Services Reform for Indigenous Services Canada. She answered a question from Senator Francis on the issue of providing services to young adults who are past the age of majority, and she said:
This bill has a lot of details to be worked out by the Indigenous groups. The definitions of the child and others in here have not been included so that we use the definition — the age range — used by specific provinces. Specific provinces have different ages.
We do not believe that uncertainty about the inclusion of post-majority care should be left to be resolved at a later date and therefore agree that the definition of child and family services should be amended and expanded.
And we do all recall the testimony from the youth, Cheyenne Andy and Ashley Bach, who explained the importance of having a full continuum of care included in this bill for infants to young adults. That is what is behind this amendment, Madam Chair.
Senator McCallum: I agree with you that it’s a more extensive inclusion of services. Could you tell me what are primary, secondary and tertiary prevention services, as well as post-majority care?
After that I will have a question on primary, secondary and tertiary.
Senator Patterson: Madam Chair, could we refer that question to the officials?
Post-majority care is after the age of majority, 18 or 19, but I am not sure about primary, secondary and tertiary prevention services.
Mr. Léonard: I am not sure if I correctly understood the question, but I can say that the age for which services are being provided across the country varies. Some of them go to 16. We’ve heard from Nunavut that they go beyond even 20. I think it’s 25.
Senator McCallum: I understand. Senator Patterson just explained it. I am looking at the primary, secondary and tertiary prevention services and what is included in those three.
Mr. Léonard: We know child and family services include a vast majority of services. We’ve heard a lot of things that could be included in that definition. This is why we used a non-exhaustive definition. The bill says that child and family services mean services to support children and families as a whole, which includes prevention services and early intervention. It’s an inclusion. We didn’t want to overdefine it. It is a definition. We left it as broad as possible for Indigenous groups to determine what would be in that inclusion.
You’ve also heard from representatives of provinces and territories that do not want this bill to unduly encroach on their jurisdictions by overincluding things. This bill is a framework. It has two things: principles to be applied by all provinces and territories and the affirmation of jurisdiction.
If we are including post-majority care or other things, you are dictating to provinces and territories how they have to provide their services when it comes to post-majority care, which some of them do and some of them don’t. The vision is to leave it up to the Indigenous groups to decide if they want to provide for that post-majority care. If they want to, the definition is broad enough for them to do that.
Senator McCallum: I have a question on that point.
When you look at what’s included here, the health of the family and the community will include health and justice. Some students that I know are in and out of juvie centres. If you’re to provide health or service, you’re going to go into other jurisdictional areas. Housing is a big issue. I think those should be included. If you don’t deal with them, you really are not dealing holistically with the issue of services being provided.
Ms. Gros-Louis: We agree that to address the issue of child care it has to be taken as a holistic approach. However, according to our view, to consider health matters would be going beyond the scope of this legislation.
Senator McCallum: If you’re not going to include that, you’re setting up the system to fail for First Nations that will take it on. They’re not going to be able to address housing and health care. Part of the health care would be the prenatal addictions. Those services on reserves are provided by Health Canada.
In order to provide those services, you would need the federal government to put in place additional services to take care of this prevention and intervention which, by the way, shouldn’t be separated. You are going to have both in families. If you don’t, how would you expect Indigenous people to pick up on being given just half of the service?
Ms. Gros-Louis: I should clarify that. Prenatal services are considered in this legislation. As a matter of fact, all socio-economic factors cannot be included in this legislation. We’re addressing one issue at a time as we move forward. We fully understand that there are other issues impacting on child and family services, but this legislation is one step toward improving the welfare of children and families.
Senator McCallum: I am very uncomfortable with that. It’s not fair to expect First Nations to pick up a service like that unless there’s some help. Do you know what I am saying?
The Chair: I think we’re maybe straying a little too far from the amendment.
Senator McCallum: He has brought it in. When I looked at primary, secondary and tertiary prevention, we have that in the health profession. It is stated in the health. That’s why I asked him to define what those three were.
The Chair: And we didn’t get an answer.
Senator McCallum: No. Those services are very important. That’s all I am saying.
The Chair: Right, but we don’t know what they are.
Senator LaBoucane-Benson: I think the confusion is that this amendment is trying to add things to a definition or to a term where they don’t belong.
In this definition, we’re talking about child and family services. We’re not talking about the coordination agreements. In the agreements you can bring Health Canada to the table. In a coordination agreement, a First Nations says, “We want to do prevention care. We need housing and we need addiction services.”
In the coordination agreement process, could other departments come to the table to be part of those coordination agreements so that the exact services that Senator McCallum is talking about are provided to families? Is that where we should be focusing that discussion?
Ms. Gros-Louis: That possibility is always available for the discussion of the coordination agreement.
Senator LaBoucane-Benson: Does that make sense?
Senator Sinclair: I don’t want to belabour the point. I did want to point out that there is no definition of primary, secondary and tertiary prevention services in this legislation. As far as I know, there is none in any other legislation.
I have presided as a judge in family court and, in my practice as a lawyer, I have represented families caught up in the child welfare system. It seems to me, from my experience, that agencies have their own category of services they provide. They call them, “primary care services.” They also have another category called, “secondary care services.” In them they group certain services they provide to families. They get funding based upon whether the government agrees that it’s a primary care service or secondary care service.
Just going by that experience, when the witnesses spoke to the committee about those issues, my guess is that they were falling back on that. I don’t think this was intended to capture health services. This was intended to capture child and family services provided to families in the area of prevention in each province. Each agency probably has their own category of services that they will provide. In the case of a primary care service, for example, they might provide counselling to the child, and that’s a preventive service.
Or they might provide respite for the parents by letting somebody else go into the home and take care of the children for a while, while the parents go for medical care somewhere. Secondary care might be something a little more extensive and tertiary care would be something even more extensive than that. I am just going from my experience dealing with agencies.
The Chair: Are there any further comments? Are we ready for the question?
Is it your pleasure, honourable senators, to adopt the motion in amendment? Agreed? Motion carried.
Senator McCallum: On division.
The Chair: On division?
Senator Patterson: If this amendment is a problem, I am flexible about it.
Senator McCallum: I am sorry. You were voting on this amendment. I am mixed up. I thought that we had gone back to this one. I am okay.
Senator Patterson: I am not sure if we’re finished with our debate on this amendment. I think I hear the officials saying that its use could be restrictive.
Mr. Léonard: Another element is mentioned in this proposal. Of course, we’re talking about meaning “services to protect children from maltreatment.” These are known as grounds for apprehension. Again, our definition is broader because we’re talking about services to support children and families. We didn’t want to limit it to maltreatment because some groups will say, “Yes, I want to go on the route of maltreatment. Yes, this will be my ground for apprehension and for providing the services.” However, other groups will define their own reasons for providing these services.
The trigger can be changed. Yes, there is a risk that we’re limiting the definition of child and family services if we adopt an amended definition like this one.
Senator Patterson: I will withdraw the amendment.
The Chair: With leave of the committee, do we agree to withdraw the motion?
Hon. Senators: Agreed.
The Chair: Motion withdrawn.
Senator LaBoucane-Benson: We have another amendment.
The Chair: We will move on to the third amendment, DP-1.3c.
Senator Patterson: Madam Chair, I move:
That Bill C-92 be amended in clause 1, on page 3, by replacing line 13 with the following:
“ly intervention services, child protection services, adoption services, reunification services and post-majority transition services.”.
I think I covered this in describing the earlier amendment. It was an issue with the Government of Nunavut. I am not sure if I mentioned the assistance for 19-year-olds to 26-year-olds, customary adoptions, determinations of parentage and family. We also heard from Professor Blackstock and Carrier Sekani Family Services.
As critic for the bill, I tried to reflect what the witnesses called for. We can have a discussion here, Madam Chair. If there are any problems, I don’t have any pride of authorship, I guess.
Senator LaBoucane-Benson: This might be the better one of the two. It says “including,” so it doesn’t have to mean all of these. It gives a variety of services that an Indigenous governing body may take on. Some provinces and territories already do. Some don’t. Because the word “including” is there, all of these services make sense. Maybe this is an amendment we could pass.
The Chair: Do the officials wish to respond?
Ms. Gros-Louis: The words “adoption services” cannot be found in our present bill. The words “customary adoption” are used now.
Mr. Léonard: That is an important aspect to reiterate. It will be transparent. It was hard to balance, when the policy behind the bill was developed, how to deal with provinces and territories on one side. Child and family services are a concurrent jurisdiction. There is important provincial and territorial aspects. We’ve heard this throughout. We’ve had a lot of technical briefings with all the provinces, even after the introduction of the bill.
Huge concerns were raised. It was not using the term “customary adoption” because that was already captured by the scope of the bill. It was talking about adoption, which is clearly a provincial jurisdiction. This bill is not changing legal relationships between people. There is a huge risk of proceeding with this amendment as it is talking about adoption.
Through coordination agreements and through the exercise of jurisdiction, Indigenous groups will be free to determine what services they want to provide. We did not want to dictate to provinces what they should do. There are standards, but here we are creating new services that they would have to think about when drafting their child and family services laws. Now they will have federal law that defines child and family services. It will include adoption, reunification and post-majority care, which not all of them have currently.
For sure, Indigenous groups could exercise their jurisdiction. They could talk about customary adoption and post-majority care. There is a fine line there, so we would advise against it.
Senator LaBoucane-Benson: The spectre of a constitutional challenge seems to loom large in this one. To me, it wouldn’t be that difficult to say means or could include services to support or something like that. Most provinces do adoption. How do you do child services without doing adoption? Everybody across the country would do adoption.
Reunification and post-majority may not be done by everybody, but could we not use language that could say something like “could include or means” services to support children and families which may include prevention or intervention.
Pushing a little bit on the array of services, reunification is at the heart of what we’re doing here. We’re privileging family relationships. If we’re not talking about reunification for kids in care, what are we doing here? I don’t know how this group feels but that’s my opinion. I would be willing to make an amendment to the amendment saying that it would read:
Child and family services means services to support children and families which may include prevention services, early intervention services, adoption, reunification and post-majority transition services.
We’re not making the child protection services do anything. If we do good prevention, we’re going to see less protection, right? That’s the idea.
Senator Sinclair: I agree with the point that Senator LaBoucane-Benson just made. It’s illogical to give an agency funding and authority to do child and family services without also giving them the authority to provide some adoption services.
Adoption services necessarily include things like assisting with the placement of a child within an adoptive family. The adoption ultimately would have to go to a provincial court, so the question always becomes who takes the matter before the court. It makes no sense for the agency that is already before the court to say that it can’t ask the court to grant an adoption order for children or to say that it has to bring in another agency to ask the court to allow this child in its care to be adopted to the family that was helping. That makes no sense.
It seems to me that adoption services are necessarily part of what an agency will be doing. I understand the concern about jurisdictional disputes between provinces and the federal government. At this point in time, we’re really talking about legislation that will enable Indigenous child and family service agencies to do their work. It isn’t only in the area of customary adoptions that they will want to do adoptions. They will also want to do adoptions in those cases where they have to get a court order to take care of children. If, at the end of the day, adopting the child to an adoptive family is in the best interests of the child and they have to go back to court to get an adoption order, that’s the way it works. The agency goes to get the adoption order, the court approves it and then the adoption takes place.
In this case I don’t understand why the agency wouldn’t be mandated to be able to do that. I can understand why provinces don’t want you to do that, but I am not here to take care of provinces.
Senator Christmas: My question is for Mr. Léonard. I am trying to understand this amendment, and I have two trains of thought. One train is about what’s in the existing clause. You are trying to make a toolbox available to Indigenous groups exercising their inherent right in this area that is broad enough and general enough to do a number of things. I see three tools in the existing clause. The first talks about prevention services. The second talks about early intervention services and the third talks about child prevention services. If we took each of those terms and tried to define them, I suppose we would come up with a lengthy list of services under each category.
My other train of thought is that if Indigenous groups are to exercise their inherent right, then they should have the entire toolbox available. Whatever they think they need to do in their community, they need to do it and get into some of the areas of adoption.
The one that troubles me is post-majority. I know we’ve heard testimony in this committee where a number of witnesses, including those who came through the system, strongly recommended to the committee that we consider post-majority services as part of this inherent right. It’s not what I understand provinces or territories necessarily do, but it certainly seems like it’s something that Indigenous groups need to do because of the numbers of people who are exiting the child welfare system.
I guess I am conflicted. Is it best to provide these Indigenous groups with a general toolbox, or do we need to provide another toolbox that has these? We should define not all but at least some of the services, including post-majority. I have chosen Mr. Léonard to give me some guidance.
Mr. Léonard: You made a very good point, senator. This is made to be as broad a framework as possible. For sure, the bill captured long-term placement. This is what I am hearing across the board. Long-term placement then results in adoption, which has to go through a provincial court. Yes, long-term placement was envisioned already. All of this is captured with these three words. We wanted to leave it open for the Indigenous groups to determine what they wanted to really do because there is also an aspect of capacity.
This is a framework. Various models that will be adopted across Canada. Some groups may come to us and say, “We just want to do prevention.” That’s okay. By the time they get to post-majority care, that means they will have built great capacity. By adding more things here, there is potential for unintended consequences. This is why we left the framework as broad as possible to be able to capture all of this.
To go back to the point made by Senator LaBoucane-Benson earlier, these matters can be discussed in the context of coordination agreements, for sure, for sure, for sure.
Senator Patterson: Adding the qualifier “which could include early intervention services, child protection services, adoption services, reunification services and post-majority transition services” would not be binding; it would be more permissive. Would that be less problematic? May I ask the official?
Michelle Smith, General Counsel, Director, Department of Justice Canada: Thank you for the opportunity to answer the question. Usually definitions try to bring clarity to a term. By introducing “which may include” could potentially not meet that goal.
The more terms are included in a definition begs the question: Why are other concepts not included when a court interprets the legislation?
Senator Tannas: Could we address that by saying, “including but not limited to?” You see that in lots of language to say it includes this but this isn’t an exhaustive list. Would that deal with your concern, Ms. Smith?
Ms. Smith: Again, I would say that a definition should clearly set out what the word is intended to mean. It’s difficult for me to say how a court would view that specific definition when it’s trying to interpret the term.
Senator McCallum: I agree with this amendment. I looked at the Manitoba one. They don’t have reunification services and post-majority transition services. If you’re doing a coordination agreement with the province, will the province limit what it provides? Will it be up to the First Nations to define? How do you get the provinces on board?
Ms. Gros-Louis: I think that is the danger we’re facing if we’re saying, “which could include.” “Which could include” varies from the language we originally had that provided for the enumerated services and was binding on the provinces. It was broad enough that it was inclusive of the provided enumerated services, but it was also binding on the provinces. If we say “which could include,” it becomes less binding on the provinces. Provinces that now have prevention and apprehension programs are not necessarily bound to provide those services. If we use this “which could include” in the list of programs, that’s another risk we’re running with this amendment.
Senator McCallum: It won’t prevent First Nations organizations from saying, “We are going to include reunification and aging out?”
Ms. Gros-Louis: You’re correct. It would not prevent Indigenous groups from defining what it would include, but there would be a possible impact on the bindingness of PTs.
The Chair: Senators, I hear there are a number of issues with this amendment from the officials. We’ve had several suggested subamendments that, from what I am hearing, don’t seem to satisfy the officials. Do we wish to continue the discussion, or are we ready to move the question?
Senator LaBoucane-Benson: I’d like to read the subamendment.
The Chair: Would you read it out, please?
Senator LaBoucane-Benson: “Child and Family Services means services to support children and families, which may include prevention services, early intervention services, child protection services, adoption services, reunification services and post-majority services.”
The Chair: If it is passed, we will also have to have this translated.
Senator LaBoucane-Benson: “Could include” and not “may.”
The Chair: Could include?
Senator LaBoucane-Benson: Yes, please.
The Chair: The new amendment should read:
That Bill C-92 be amended in clause 1, on page 3, by replacing lines 12 and 13 with the following:
“children and families, which could include prevention services, early intervention services, child protection services, adoption services, reunification services and post-majority transition services.”.
Does the committee wish to adopt that motion?
Hon. Senators: Agreed.
The Chair: Do we need a show of hands? It looks pretty much like everybody. We will stand the motion for the moment and come back to it when the translation is complete.
The next amendment, Senator Patterson.
Senator Patterson: The next one is DP-1.3d. I move:
That Bill C-92 be amended in clause 1, on page 3, by adding the following after line 34:
“maltreatment includes all forms of physical, sexual or psychological abuse, harassment, exploitation, exposure to domestic violence and neglect. (maltraitance)”.
This amendment relates to the protection of Indigenous children and the clear incorporation of a right to live free from maltreatment in the legislation. It is an issue that was raised several times during the house debate, and there are a number of points in the bill where amendments were proposed around the issue of maltreatment.
Ms. Turpel-Lafond pointed out in her brief to this committee the need to address child vulnerability and maltreatment. The Carrier Sekani Family Services brief said that it was vital to have recognition in this legislation of a child’s right to live free of maltreatment.
If I may, I will quickly quote from their brief to us:
The exclusion of any reference to child maltreatment is also problematic and inconsistent with the stated purpose of the bill, which is to increase healthy families and decrease the overrepresentation of children in care. It goes without saying that children go into care because of maltreatment, and thus the failure to specifically include child maltreatment as a focus of the bill is a significant oversight. Child and family services are by nature a combination of voluntary and involuntary services aimed at fostering healthy families and nations to prevent child maltreatment wherever possible and respond to it when it occurs. . . . The inclusion of child maltreatment does not restrict First Nations from including other wellness approaches in their laws. Rather, it affirms that prevention of and response to child maltreatment is a key element to be included in the range of services that a First Nation may choose to invoke lawmaking authority regarding.
That’s the background to this, Madam Chair.
The Chair: I have a quick question. I may have missed part of your explanation of the motion. Does this go in after line 34?
Senator Patterson: It would be a new definition.
The Chair: Is it a new section?
Senator Patterson: Yes.
The Chair: In a sense, it’s a definition.
Senator Patterson: That’s right.
The Chair: Within the bill itself, does maltreatment come up a number of times? Could the officials say if maltreatment is part of the bill in a number of places?
Mr. Léonard: Maltreatment is absent from the bill, Madam Chair.
The Chair: It is putting in a definition that is not in the bill. You are putting in definition, but the word itself does not appear in the bill. I think you may have been doing that because of your first amendment. I believe it had the word “maltreatment,” and you withdrew that. One of the amendments had maltreatment, DP-1.3d.
Senator LaBoucane-Benson: Senator Patterson has one coming up: 10.7 is adding the term maltreatment to the bill.
The Chair: Okay.
Senator Patterson: Could we get comments from the officials, or did we get them already?
Mr. Léonard: It is not in the bill.
Senator Tannas: Should we postpone this amendment and deal with them both together?
The Chair: Could we do that? They’re related. If DP-10.7 is passed, then DP-1.3d would be relevant. At this point in time, maltreatment does not appear in the bill. Shall we stand that or come back to it? Stand.
The next one.
Senator Patterson: This will be a new definition. I move:
That Bill C-92 be amended in clause 1, on page 3, by adding the following after line 36:
“Parent means a person who has custody or guardianship of the child. (parent — mère ou père — )
Prenatal means a voluntary service provided to a parent prior to the child’s birth that is intended to prevent child maltreatment and promote family well-being. (prénatal).
Substantive equality means true equality in outcomes achieved through equal access, equal opportunity, accommodation and the provision of services and benefits in a manner and according to standards that meet any unique needs and circumstances, such as cultural, social, economic, geographical and historical disadvantage. (égalité réelle)''.
The amendment was proposed in committee, and I am proposing it today. It obviously defines the words parent, prenatal and substantive equality in the definition section of the bill. Marilyn Birch, Director, Child and Family Services of the Mi’kmaq Confederacy of Prince Edward Island and Richard Gray, Manager, Social Services, First Nations of Quebec and Labrador Health and Social Services Commission, both pointed out the importance of strong language in this bill with regard to the issue of substantive equality. In her brief submitted to our committee, Professor Cindy Blackstock, a leading expert on the topic, called for this bill to include a definition of substantive equality and of parents. She is acknowledged as a leading expert on substantive equality and on Jordan’s Principle.
That’s the background to the amendment, Madam Chair.
The Chair: Can we ask the officials the same sort of question as to the references in the bill, for instance, to substantive equality, which might be a funding commitment?
Ms. Gros-Louis: On substantive equality particularly, this is a legal principle guaranteed constitutionally by the Canadian Charter of Rights and Freedoms and by human rights legislation such as the Canadian Human Rights Act. It is fact and context specific, which requires flexibility instead of a preset statutory definition.
It is our belief that what substantive equality requires will depend on many different circumstances and therefore should not be defined in this bill.
The Chair: Are we ready for the question?
Senator Patterson: Madam Chair, this is a pretty big one. We have a hint from where the government is coming on this one. They feel the statutory definition is not appropriate. We heard some pretty strong submissions on it.
If the committee agrees, I’d suggest we go ahead with the amendment. We may expect it to be rejected, or we may not be surprised if it’s rejected.
Senator LaBoucane-Benson: These words are used throughout the bill that are not defined. This seems like an opportunity to define words that are used in the bill.
With regard to substantive equality, in the principle of substantive equality there is (3)(a), (b), (c), (d) and (e) that speaks to this bill’s definition of substantive equality, what it means, in five contexts. My concern with this definition is that I haven’t done any analysis to see if it lines up with the five principles of substantive equality that are coming up in the bill. There could be a conflict. Our definition could get chucked out, not because it’s not good, but because there isn’t harmony between the principle as stated and the definition that we’re proposing.
To be honest, I would have to think about whether or not that harmony exists. We haven’t got to section 3 yet.
Senator McCallum: Could we do the same as with the other one? When we get to substantive equality, could we go back to that definition? I don’t have a problem with this amendment.
Senator LaBoucane-Benson: I don’t either. I am saying it might get chucked out. That definition might not be accepted by the government, from what Senator Patterson says, because there might not be a legal harmony between the two that we don’t detect. I have no problem passing the amendment, though.
Senator McCallum: Under substantive equality, it says, “with the principle of substantive equality, as reflected in the following concepts.” If these are in there, it makes it easier for people to see it in one sentence. It’s almost like a synopsis of this, with that.
Senator LaBoucane-Benson: We can vote on it, though.
Senator McCallum: Could we go back to it after?
The Chair: We could stand it. I would like one other clarification from the officials.
“Substantive equality” appears in subparagraph 20(2)(c) with regard to fiscal arrangements. What would be the impact of this definition on that particular clause?
Mr. Léonard: Adding a definition of substantive equality, beyond the legal concerns raised by Ms. Gros-Louis, would have some consequences on the rest of the bill. Currently, substantive equality is a principle of the act. As was pointed out, it is not defined but rather is shown through the concepts that we heard throughout our engagement. These concepts are reflected in the principal provision that was mentioned. There are no current definitions in the bill for substantive equality, and there would be some significant also impact on the coordination agreement, especially.
Senator Sinclair: In keeping with that point, I note that clause 9 of the bill has a section devoted to the principle of substantive equality. It contains five major paragraphs, all of which delineate the factors that go into determining substantive equality. The difficulty that I see is that if you put it into a definition clause in the bill, you’re undermining the principle later on. In effect, you are creating a contradiction in the bill between the definition and the factors that means substantive equality has been achieved or is being achieved.
I understand that to be the point. I see that as being a potential problem. Maybe there’s a reason why you wanted to put it in the definition of it that I didn’t quite gather.
Senator Patterson: I guess I was deferring to Cindy Blackstock.
Senator Sinclair: We all need to.
Senator LaBoucane-Benson: If we took out the substantive equality definition and let clause 9 stand, could we still consider prenatal and parents? Prenatal is a pretty critical one to define because we’re talking about prenatal services as a priority later on, and there’s no definition of prenatal here.
Senator Patterson: This is a collaborative process today, which is great. I am fine with seeking leave to withdraw the portion of my amendment that defines substantive equality.
The Chair: To withdraw just that clause?
Senator Patterson: Just that clause, and leaving in the other.
The Chair: It’s really a subamendment.
Senator Patterson: It’s a subamendment to remove “substantive equality” in the amendment.
Senator McCallum: The word “maltreatment” is in there as well, if we are going back.
The Chair: So is prenatal.
Senator Tannas: We could amend it and just stand it until we get all the maltreatment together.
The Chair: We could do that.
Senator Sinclair: I am not finished with the clause, though. I did have a concern about substantive equality.
I am just looking at the definition of the word “parent.” Its definition is very wide phrasing. It means a person who has custody or guardianship of the child. It’s the phrasing “custody,” and there’s no delineation in that phrasing between legal custody and non-legal custody. De facto custody is what I mean.
A person who has taken in a child, without any kind of legal order authorizing the child being taken in, might be caught by the definition of “parent.” A foster parent would fall within the definition of “parent” in that case as well. I am not sure if that’s what you intended or not. I draw that to your attention more than anything else. It may have an unintended consequence of expanding the term beyond what you wanted to include.
Normally, parent is defined as a natural parent, somebody who is involved in the birth of the child one way or another. It can include an adoptive parent and person standing in loco parentis, who treats the child as though that were her or his child.
Senator LaBoucane-Benson: I’ve been told, and you can correct me, Senator McCallum, that in Cree there’s no word for parent. There’s mother and there’s father, but there’s no parent. Inserting a word like parent might interfere with Indigenous laws that come forward which actually don’t even acknowledge there are parents.
There’s a very specific role for a mother and a very specific role for a father. I wonder if we would hold the feet of Indigenous groups to the fire by overdefining that. We could leave it open for their definition.
Senator McCallum: With parents they have customary adoptions which are legal. Sometimes the birth parents will allow the aunt or the grandparents to raise the child but not through a court system. Those children see them as their parents.
Senator Patterson: I wouldn’t want unintended consequences, so I will agree to Senator Sinclair’s suggestion that the definition of parent be withdrawn.
The Chair: I can’t hear you.
Senator Patterson: I am asking leave to withdraw the definition of parent from the amendment 1.3, as suggested by Senator Sinclair, and prenatal would be left.
The Chair: We’re left with the prenatal clause, which we will stand until we deal with the issue of maltreatment.
Senator Patterson: Agreed.
The Chair: Shall clauses 2 to 3 carry?
Hon. Senators: Agreed.
The Chair: Then we have an amendment to clause 4. Senator Patterson.
Senator Patterson: Hopefully this will be a little easier to deal with. I move:
That Bill C-92 be amended in clause 4, on page 4, by replacing lines 15 to 18 with the following:
“4 If there is a conflict or inconsistency between the provisions of this Act and the provisions of provincial or territorial legislation relating to child and family services, and the provisions of the provincial or territorial legislation provide a level of protection for Indigenous children that meets or exceeds the level of protection provided for by the provisions of this Act, the provisions of the provincial or territorial law prevail to the extent of the conflict or inconsistency.”.
This flows from the submission of Honourable Minister Elisapee Sheutiapik of the Government of Nunavut. She described the unique position of the Government of Nunavut within the federation. In effect it is a legislature that is predominantly Inuit. No other public government has such extensive statutory obligations with Indigenous stakeholders as does the Government of Nunavut through the Nunavut Land Claims Agreement.
There was a concern that Bill C-92 could undermine the work that has gone into creating carefully crafted Nunavut-specific legislation. That legislation was developed with the involvement of Nunavut Inuit.
In the way the bill is drafted, it says that when there is any conflict between the Nunavut Child and Family Services Act and the bill, even if that conflict occurs because territorial provisions meet or exceed what is required in the bill, those provisions will be overridden by Bill C-92. While the heading of the clause 4 of the bill refers to “minimum standards”, the binding part of the law in the language of clause 4 itself does not.
I have been in touch with the Government of Nunavut, which accepts the intent of the amendment. There were some examples given in the testimony. One of them was the age of care being greater, and another one was relating to a plan of care to determine how to house children in need of care. The Child and Family Services Act provisions for plans of care conflict with the strict rehousing priority list of Bill C-92 at section 16(1). The GN argues that the flexible, inclusive and collaborative approach of the plan of care committees is as good at or better at satisfying the best interests of the child than the fixed rehousing priority list of Bill C-92.
That’s the purpose of the amendment. It’s to allow for territorial or provincial regimes that exceed the level of protection provided for by the provisions of this act and would not necessarily result in the federal legislation prevailing in that situation.
Senator Sinclair: This raises the issue I talked about earlier. That is a provision that puts into a superior position the legislation of a province when it comes to the self-government of Indigenous people. My concern is that if it were Nunavut specific and limited to Nunavut, I would probably be okay with it. This is not. This includes all provinces and all the territories. Therefore, it causes me concern that in amending this we are allowing the Province of Manitoba to create a superior jurisdiction or to exercise a superior jurisdiction over the First Nations of Manitoba, for example.
I am sure that’s not what you wanted to do, but that’s what this amendment creates. Because this legislation is federal legislation in relation to Indigenous child and family services, my concern would be that it should not be legislation which renders subservient the position of Indigenous governance to provincial and territorial governments. It isn’t fair. It isn’t right. It’s not the constitutional principle that we want to uphold.
I recognize the point that was made earlier about Nunavut. I probably don’t have a problem with that, but this is not Nunavut specific or Nunavut limited.
Senator Patterson: I presented the problem to the law clerk, as defined by the Government of Nunavut. This amendment came out, and it applied to all provinces and territories. You’re right, Senator Sinclair. I was focusing on the Nunavut issue. They’ve actually made quite a good case that they shouldn’t be limited by the federal legislation in the case where they exceed minimum standards.
Maybe there’s a way of subamending this clause that would make it refer specifically to the situation of Nunavut, which is unique because of the Nunavut Act and the Nunavut Agreement.
Senator LaBoucane-Benson: Further to the ongoing discussion, I have a question for the department officials. If the amendment in front of us spoke specifically to Nunavut, it could sit as a 5.1 because clause 5 says that the Nunavut Act prevails. Then 5.1 could say exactly what you’re saying but it would be the provisions of Nunavut legislation specifically. It would hang right under 5, which says:
. . . nothing in this Act affects the Legislature for Nunavut’s legislative powers referred to in section 23 of the Nunavut Act.
I am not sure you want to say, “protection.” I think you are saying services because post-majority services aren’t protection. Then 5.1 could read:
If there is a conflict or inconsistency between the provisions of this Act and the provisions of the Nunavut legislation relating to child and family services, and the provisions of the Nunavut legislation provide a level of service for Indigenous children that meets or exceeds the level of protection provided for by the provisions of this Act, the provisions of the Nunavut law prevail to the extent of the conflict or inconsistency.
That would be so specific to Nunavut and it would be right under the section of the Nunavut Act. It would be even clearer who we’re talking about: not Manitoba, not Saskatchewan, but Nunavut. I wonder what you would think of that.
Senator Patterson: Brilliant. Thank you.
Senator McCallum: Senator Sinclair, are you leaving?
Senator Sinclair: I am afraid I have to go to speak in the chamber.
Senator McCallum: I have to go as well.
Senator Sinclair: Bill C-75 is coming up very soon.
Senator McCallum: I need to ask you a question. With AMC, they are very concerned that the provincial governments won’t give jurisdiction to them because they haven’t been able to get them to the table to discuss anything.
I am very concerned about that. For certainty, this bill will override provincial jurisdiction. My amendment, which is next, will deal with AMC.
Senator Sinclair: You’re asking me at this point in time if, with this amendment, it would not supersede provincial jurisdiction.
Senator McCallum: If this was not there, then it would.
Senator Sinclair: I can’t give you the answer to that. I can only tell you that this amendment would negate the principle that you’re talking about.
Senator McCallum: I will ask them then.
The Chair: Let’s focus on the amendment we have before us.
Senator LaBoucane-Benson: Just to recap, my subamendment is:
That Bill C-92 be amended in clause 5, on page 4, by adding after line 21 the following:
“5.1 If there is a conflict or inconsistency between the provisions of this Act and the provisions of Nunavut legislation relating to child and family services, and the provisions of the territorial legislation provide a level of service for Indigenous children that meets or exceeds the level of service provided by the provision of this Act, the provisions of the territorial law prevail to the extent of the conflict or inconsistency.”.
Senator McCallum: Can I say something? My amendment which is next is 5.1.
The Chair: We can renumber later. Let’s deal with this one first.
Senator LaBoucane-Benson: Senator Patterson, how do you feel about that?
Senator Patterson: It’s great.
The Chair: And the officials?
Ms. Gros-Louis: Clause 4 was drafted to take into consideration this situation across the country. It was meant to say that this legislation provides for minimum standards; but if provinces and territories, whomever they should be, have higher standards they would prevail. The same with Indigenous law.
This was meant to apply across the country. In its application, it would be doing what you’re trying to do for Nunavut but for all provinces and territories. If you do it for Nunavut, other provinces and territories will want the same. That’s what we were trying to capture in clause 4.
Senator Patterson: If I may, the brief from the Government of Nunavut says that principles of statutory interpretation dictate that headings are not binding parts of legislation. While clause 4 of Bill C-92 states, “Minimum standards” in its heading, the text of the section makes no reference to conflicts or inconsistencies being resolved in favour of the government, where the government’s legislation meets or exceeds the minimum standards of Bill C-92. Instead, it simply states that provincial and territorial laws will apply so long as there is no conflict or inconsistency with Bill C-92.
It’s the point about where the standards are exceeded, which should be a problem that is not addressed by clause 4 according to the brief from the Government of Nunavut. I am not sure that carving out a specific exception for Nunavut would have a precedent for the other provinces or territories.
Ms. Gros-Louis: What is being proposed here could be proposed for the rest of Canada. This amendment could apply. We agree that the title is not binding, but the proposed amendment could easily be adapted to this legislation and made to apply across Canada for greater certainty.
I want to be clear. If standards are over and above, we’re not in a situation of a conflict. Over and above is not a situation of inconsistency. It’s in addition.
Senator LaBoucane-Benson: The problem is that we could apply this to some provinces. For example, speaking with the Ontario grand chief, the legal people representing that organization asked what constitutes better. If this is the minimum, how do we know something is better or exceeds? That would be a subjective analysis. Are we talking about better protection services, meaning we claw more kids into apprehension? Or, does better mean more kids stay with their bio families? How do we define better?
They took umbrage with the word “minimum.” We also have other First Nations people saying that they don’t want the province anywhere in here. Even if there’s no conflict if provincial laws prevail, they don’t want provincial laws at all. I think AMC comes from that perspective. Certainly the vice chief of Saskatchewan comes from that perspective.
This clause 4 has caused so much consternation, mostly because nobody really understands what it means. In the phrasing of it, it’s such legalese that it seems to bring up the spectre of: “The provinces are always going to have jurisdiction over our kids. We’re never going to get out from underneath that jurisdiction.”
I don’t know if we have an amendment in front of us that deals with that. On the one hand, Nunavut is saying, “We far exceed this. Give us a clause that says when we’re exceeding, let us keep exceeding.” They’re in a specific situation where 85 per cent of their population are Inuit, 60 per cent speak the language, and the entire government is Inuit. That is so different. That is how Nunavut gets its own clause because Inuit people are really calling the shots. That’s not happening in provinces where Indigenous people are by far the minority.
To be honest, even if we add 5.1 for Nunavut, even if the territory feels good about it and even if the Inuit people feel good about it, we still have clause 4 that is causing great consternation in nations. Even in my dialogue with them, I can’t really explain how the provinces stay out. If we’re saying there’s no conflict and that provincial laws prevail, that feels like a back door. I don’t know if you can help us with that.
Ms. Gros-Louis: The provincial and territorial laws will prevail as long as there is no Indigenous law being developed. This is kind of the interim situation. Then, when an Indigenous law would be created, those minimum standards would be applicable by all, including provinces, territories and Indigenous organizations or bodies.
What this clause is saying is that nothing prevents either the provinces, the territories or the Indigenous groups from going over and above those enumerated minimum standards.
Senator LaBoucane-Benson: I wish the bill said exactly what you just said. Then there would be no problems with any of the Indigenous leaders I’ve spoken with. It doesn’t feel like it says that because I can’t seem to untangle the legalese to get the meaning underneath it.
We don’t obviously have an amendment to give you. I wonder if the government would consider their own change when this comes back, to make it so that the intent is clearer.
Senator Patterson: How about an observation? No, we can’t do observation in a clause by clause, can we?
The Chair: Sure, you can, at the end.
Senator Patterson: Why don’t we make that an observation?
Senator LaBoucane-Benson: That would be fantastic.
The Chair: Perhaps I could also add to the conversation. The testimony here becomes part of what judges will look at when they come to interpreting. They will look at in fact our committee on Bill S-3. Our letter that was sent to the minister was used in testimony when they were deciding the fate of whether or not to grant an extension.
This becomes part of what judges will look at in terms of trying to understand what that clause means. It’s good that we have the officials here saying from the departmental side what it actually means. You can use that part of the transcript when you’re speaking to individual groups that are not clear. That can be part of the explanation.
Senator LaBoucane-Benson: Thank you, Senator Patterson. That’s a good suggestion on that.
Can we vote on that subamendment, though?
The Chair: I was going to say that we have a subamendment. Are we ready for the question?
Senator LaBoucane-Benson: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the amended motion in amendment?
Hon. Senators: Agreed.
The Chair: We’ll have to have it translated, and then it will come back to us to do whatever we need to do.
Senator Patterson: I think we’ve reached agreement as well that our capable staff will draft an observation that reflects the committee’s concern about the need for clarity on clause 4.
The Chair: Yes.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Now we have a new clause, Senator McCallum.
Senator McCallum: I move:
That Bill C-92 be amended on page 4 by adding after line 21 the following:
Application.
“5.1 (1) Taking into account the Memorandum of Understanding referred to in subsection (2), this Act does not apply to any member of a First Nation whose habitual residence is in Manitoba.
(2) It is recognized that Her Majesty, in right of Canada, in order to meet the unique humanitarian crisis of child apprehension in the province of Manitoba, entered into a Memorandum of Understanding with the Assembly of Manitoba Chiefs on December 7, 2017, which includes a commitment to participate in joint discussions to improve the well-being of First Nations children, youth and families within the context of child and family services.”.
We have requested this several times from the minister’s office. I’ve written a letter to him, but the response I received really didn’t say anything. It came from the inability of Manitoba to bring the province to the table. They haven’t been able to.
We put it under clause 5.1 of the “Interpretation” section of the bill. If we made it clause 6, then all other clauses would have to be renumbered. This was under advice by the Office of the Law Clerk.
This amendment is from extreme distrust of the province to transfer services to First Nations. The Assembly of Manitoba Chiefs have their own law. They were given the funding from Minister Philpott. They developed their own law. They worked with the five tribes in Manitoba. They all have their own codes in their language. They did a Wahbung, where is a group of us got together. There were about 50 people. We were looking at community development, how we would work with the communities to bring about service care and to bring them from assimilation or co-management to more self-government. They’re going to roll that out on Monday.
They have done a lot of work, but they’re in an uncertain position. I need confirmation that provincial jurisdiction won’t prevail. I put this in, just in case there are jurisdictional problems.
The Chair: Are there any questions or comments?
Maybe, as a point of clarification, in our report we noted that the Assembly of Manitoba Chiefs definitely wanted to be exempted. In our report we also said that they had been attempting to negotiate with the province. At the very least, one of the things we suggested was that the one-year time frame be eliminated for them. This goes a little further than that, I believe.
If the officials wish to respond, please do.
Ms. Gros-Louis: That’s correct. It is our view that should this clause be accepted, it would mean that all First Nations in Manitoba would be excluded from this legislative framework.
Senator LaBoucane-Benson: Where does that leave them, then? What’s the consequence of their being excluded?
Ms. Gros-Louis: They would not be able to avail themselves of this legislation. This legislation affirms an inherent right to self-government. It provides national standards. It also provides, should they develop their own legislation like some have done, after the one-year negotiation period their law through our framework would receive the status of federal law and would have paramountcy over federal and provincial law. This would not be available anymore to all First Nations communities in Manitoba.
Senator Patterson: I am sorry, Madam Chair. I am glad Senator McCallum brought an amendment forward, but basically I thought that we’re going to try to grandfather the agreement.
The Chair: That was our recommendation.
Senator Patterson: They said that they shouldn’t have to wait for the year time frame. I was actually expecting something along those lines.
I am a bit nervous about the idea of exempting them from the application of the bill. If the mistrust evaporates miraculously and some nations want to develop their own, I wouldn’t want to be part of preventing that. I am a bit hesitant about supporting your amendment.
The Chair: Unless they are close to some self-governing agreement, in which case they would be in a different situation.
Senator Patterson: Yes.
The Chair: Are they close to a self-governing agreement?
Senator McCallum: They have their own constitution. I didn’t ask the grand chief about it. This amendment came from his office.
Senator LaBoucane-Benson: First Nation is not defined here in this bill, and it’s not defined in the constitution.
Senator McCallum: No.
Senator LaBoucane-Benson: I don’t know what is the legal definition of First Nation. Does the AMC represent every band member in Manitoba? My worry is that without a definition, who would this apply to and who would be the unintended people? I am very hesitant because I believe, if this came from AMC and this is what they want, it’s not up to me to get in the way of rights holders in their ability to do what they think they need to do.
What does First Nation mean? What is the legal definition? Who would this apply to in that territory? I am concerned about that.
Ms. Gros-Louis: In terms of representation, I was just made aware of the fact that another regional grouping called the SCO, representing the southern Manitoba chiefs, passed a resolution yesterday in support of Bill C-92.
The Chair: The Southern Chiefs’ Organization.
Ms. Gros-Louis: Yes. You have AMC that wants to be excluded, but you definitely have a regional organization representing First Nations that are in support of this legislation.
Senator LaBoucane-Benson: Senator McCallum, can you clarify why they wanted any member of a First Nation whose habitual residence is in Manitoba? Were they hoping to capture those other groups?
Senator McCallum: No. This came from an Assembly of Manitoba Chiefs resolution when they had their annual general meeting. When you pass a resolution, it needs the majority of the chiefs. I didn’t know that the Southern Chiefs’ Organization was now supporting this bill.
Senator LaBoucane-Benson: Do you have a recommendation for us?
Senator McCallum: I would say, if you’re going to have this and if this has come about, they have been interested in not waiting for the year.
The Chair: We talked about that.
Senator McCallum: Yes, it was the grandfathering, and they did not want to wait for the year because they have everything ready. The only problem is bringing the province to the table.
Senator Lovelace Nicholas: Senator McCallum, would it help if a clause were added that those First Nations which don’t want to be excluded will be included, or something like an opt-out clause?
The Chair: They mentioned an opt-out provision during their testimony, but I believe this is different from that, although I am not sure.
Senator Lovelace Nicholas: They looked at the opt out when they could not get the grandfather clause. That’s when that came about because they didn’t want to wait for the year.
Senator LaBoucane-Benson: To give us some context, what we were talking about is whether there is a way to bring the years of work groups like AMC have done to the fore to get them past that one-year period. Could we recognize all of that work so that they could assert their laws right away, even though the province hasn’t come to the table for years?
They don’t anticipate going forward or that the province is going to change their mind. They’re stuck in this limbo for a year. That’s why they’re saying opt out because they wanted to move faster, but I don’t hear them saying that they don’t want their laws to have primacy. I hear them saying they want their laws to have primacy, which Bill C-92 provides for them. It’s the waiting and the shenanigans — shall I use that word — with the province that they want to avoid.
Do you have a recommendation for us?
Ms. Gros-Louis: I have a couple of matters I would like to clarify. This legislation is an enabling legislation. The option of opting out is contrary to the concept of enabling. If you want to take part in this legislation, then it’s more like you opt in.
A couple of options are available. Under clause 21, an Indigenous group can provide notice that they are exercising jurisdiction in the area of child and family services. That’s an option for them. However, if they do so, they would not have the status of federal legislation and would not get to have paramountcy over provincial and federal legislation.
If they want to have federal status and want to have paramountcy over provincial and federal legislation, they must go under option 2, which is subclause 20(2), where they have to make a request to come to the table.
It’s not necessarily a matter of having to wait. The purpose of the one-year period is to work out with the province or territory the implementation of their legislation. In this case they would be at a stage where they’re ready for this. They have done the thinking. They have their legislation, but now they need to talk to the province in terms of how all of this will be implemented if they want to exercise it beyond the boundaries of a reserve.
Senator McCallum: I know what I will do. First of all, the chair of the women’s group that drafted the Bringing Our Children Home Act is from the Southern Chiefs’ Organization. That’s why this threw me off. She’s from Swan Lake and the co-chair is from the North, from the MKO area.
I have never done anything without giving feedback and working with any of the Indigenous organizations I work for or whose issues I bring forward. What I will do is: I will call him this evening or later, and if there’s an amendment we want to do, we will do it at third reading. Do you think so?
Senator LaBoucane-Benson: Yes.
The Chair: Before we leave this discussion, I have one question which the officials might be able to answer. Perhaps we could look at the application under clauses 21 and 22 about entering into coordination agreements, specifically the clause that talks about one year. If we were to do something specific for Manitoba here or any other group, would that be an option that would suit Manitoba?
Ms. Gros-Louis: As I explained, it would counter to the objective of this legislation to have the one-year period to work out the details of the implementation. It’s not necessarily a one-year wait period. It is a period meant to bring the parties together to make sure that all the details of the implementation are worked out.
Senator Patterson: What if they can’t?
Ms. Gros-Louis: Then after one year their legislation comes into effect, and then they have the status of federal legislation and paramountcy.
Senator Patterson: That would require them to wait.
Ms. Gros-Louis: It may.
Senator Tannas: What if an amendment, under certain conditions, were to deem that the one-year period had been fulfilled? We would simply say that an Indigenous group, community or people had executed a memorandum of understanding or completed some activity prior to the bill coming into effect. They would have been deemed to have been one year in waiting already.
You could stick something like that in. It’s just something to think about. I would support something like that at third reading.
Ms. Gros-Louis: The legislation takes that into consideration. It’s a one-year period, but if an agreement is reached before then the law gets to be federal law and has paramountcy. They don’t have to wait for one year if they have an agreement with the province or territory.
Senator Tannas: The testimony we heard was that they were not interested in having an agreement with the province. That was the issue. They were just not interested in it.
Senator Christmas: Ms. Gros-Louis, you mentioned that the Southern Chiefs’ Organization had passed a resolution supporting the bill. I am wondering if your officials could provide us with a copy of that resolution.
Ms. Gros-Louis: Yes, we will.
The Chair: Are you going to withdraw the motion, Senator McCallum, and bring it up at third reading? Is that your intention?
Senator McCallum: From what I have learned, if they’re kept out of the bill and then can’t opt in I am concerned about it. I will withdraw it and then bring in another amendment at third reading.
Senator Patterson: Agreed.
The Chair: Agreed. Thank you.
Our committee will be continuing clause by clause of this bill until we conclude. We are monitoring the chamber in case we need to leave to participate in any of the debates under Government Business.
Bill C-48 was reordered to be last on the items of Government Business, so we’re probably safe. If we conclude before 6:45 p.m., our regular time slot, that meeting will be cancelled.
We are now at the stage of asking: Shall clauses 6 to 7 carry?
Hon. Senators: Agreed.
The Chair: Carried.
The Chair: Senator Christmas, would you move your amendment, please?
Senator Christmas: I move:
That Bill C-92 be amended in clause 8, on page 4, by replacing line 27 with the following:
“(a) affirm the inherent rights and jurisdiction of Indigenous.”
The Chair: Explanation.
Senator Christmas: Madam Chair, as you probably heard from testimony and from different documentation released by the department and by the minister, the intent of the bill is to allow Indigenous peoples in Canada to exercise their inherent rights in relation to child welfare. When Minister O’Regan was here, he also confirmed in his remarks that this bill was about recognition of inherent rights.
I noticed under “Purpose” that subclause 8(a) does not include the word “inherent.” The original statement says:
. . . affirm the rights and jurisdiction of Indigenous people in relation to child and family services;
I also noticed, in addition to the statements by the minister both here in committee and elsewhere, in the seventh whereas the preamble a very clear statement:
Whereas Parliament affirms the right to self-determination of Indigenous peoples, including the inherent right of self-government, which includes in relation to child and family services;
Just to be consistent with the minister’s statements and to be consistent with the preamble, I strongly believe we should be very clear as to what is the understanding of Indigenous people. The purpose of the bill is to affirm the inherent rights and jurisdiction of Indigenous people.
If we don’t include the word “inherent” in this clause, there is also a danger the definition of this right will then become what they call statutory, meaning the definition will be defined by the statute itself, Bill C-92. Then it would become not an inherent right but it would become recognized as delegated authority arising from the statute itself. That would be somewhat troubling to a lot of Indigenous nations.
It’s important to be very clear in this bill, to be consistent with the messaging by the minister, and to be clear with the understanding of Indigenous people that we include the word “inherent” in the purpose statement of this bill.
The Chair: Any questions or comments?
Senator Tannas: Was this a mistake? It was deliberately excluded and included only the preamble. Why is that?
Ms. Smith: Bill C-92 is about the exercise of jurisdiction in relation to child and family services. It is not about the inherent right of self-government, per se. The proposed amendment would broaden the bill. When we speak about jurisdiction, it’s in relation to child and family services, inherent right and self-government.
Senator Tannas: Is this not a form of self-government? Wouldn’t this form part of what would normally be considered government?
Senator LaBoucane-Benson: Or governance at least.
Senator Tannas: Or governance.
Ms. Gros-Louis: The distinction that Justice is bringing to the table is the word “inherent.” Inherent is legally attached to the concept of self-government, not usually attached to the concept of exercising jurisdiction. That’s why you see two different presentations of the term. The preamble, we use the word “inherent” in front of the words “right to self-government,” whereas in the purpose we do not use the word “inherent” because now in the “Purpose” we make reference to the exercise of jurisdiction in the area of child and family services. Legally this is not inherent. That’s the distinction.
Senator Christmas: Just to be consistent, then, perhaps I should amend my amendment to say:
. . . affirm the inherent rights of self-government and jurisdiction of Indigenous people . . .
Ms. Gros-Louis: Yes.
Senator Tannas: Bingo.
Ms. Gros-Louis: Perhaps the same language used the preamble could be used to say, “the inherent right of self-government recognize and affirm,” or we could propose, “affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services.”
The Chair: As the preamble.
The committee has agreed to the subamendment to the motion. All in agreement?
Hon. Senators: Agreed.
The Chair: We will have it translated and come back to it.
Clause 8 is being amended. On 9.5, Senator Patterson.
Senator Patterson: Madam Chair, I have been told I can let the committee know that this was an amendment introduced by former Minister Philpott. I move:
That Bill C-92 be amended in clause 9, on page 5, by replacing line 20 with the following:
“(c) a child’s best interests are often promoted when the;”
The clause goes on to say:
. . . child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;
MP Philpott said that this would replace “well-being” with “best interests” of a child. She went on to say that the bill already acknowledged that the term “best interest” should be the primary consideration as it will include consideration of cultural continuity and is defined by a series of principles through clause 9. She went on to say that the term “best interest” was suggested on the basis of feedback she heard from Indigenous peoples. They wanted to refer not to a child’s well-being but to a child’s best interests because the concept of best interest was a concept that she heard repeatedly, particularly from First Nations with regard to the highest goal they were seeking.
It was more inclusive of considering cultural continuity. We have certainly heard that cultural continuity is something that is at risk when children are taken away from their homes. It would not take much to change that to say that it is a child’s best interests that we are seeking. If we’re going to prescribe principles to guide the definition of best interest and use a term that was repeatedly raised throughout engagements with Indigenous people, I agree that we should be consistent throughout the bill.
The Chair: Are there comments or questions?
Senator LaBoucane-Benson: I would ask why “well-being” was used when “best interests” was used throughout the bill. This was the only time “well-being” was used. It’s a good question.
Ms. Gros-Louis: Because this was a statement in the legislation, we wanted to go broader. As you are pointing out, honourable senator, the concept of best interests of the child is throughout the bill. We wanted to make sure that it was a bit broader and inclusive of all the concepts being considered. It’s our view that well-being is broader in its interpretation than best interests of a child.
The Chair: Any further comments?
Senator Patterson: I would defer to former Minister Philpott. I think we all know she was instrumental in this bill. She was engaged in consultations, with all respect to the officials. I think it’s six of one, half a dozen of the other. The term “best interest” is pretty solid.
The Chair: Are honourable senators ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clause 9, as amended, carry?
Hon. Senators: Agreed.
The Chair: Then we have two other amendments from Senator Patterson.
Senator Patterson: I move:
That Bill C-92 be amended in clause 10, on
(a) on page 6, by deleting lines 35 to 42; and
(b) on page 7, by replacing lines 1 to 31 with the following:
“(2) Subsection (1) is to be construed in relation. . . .”
Colleagues, this amendment streamlines this section of the bill. Subclause 10(1) already incorporates the best interests of the child, while all the provisions in subclauses (2) and (3) significantly complicate the primary objective as articulated in subclause (1), which states:
The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.
In my view, that provides plain language clarity and should be the basis for decisions in such cases. There is a fear of overprescribing in this instance. If we too narrowly define the best interests when there is no agreed-to definition, we may inadvertently be limiting service providers and courts in the interpretation of what is within the best interests of a child.
Senator LaBoucane-Benson: Senator Patterson, all my alarm bells went off with this amendment, and I will tell you why. I have skin in the game on this one, so I will be blunt. I worked really hard to amend the primary condition not to be just the safety and security of the child but to include the family and community connection as the primary condition.
If we were to take out subclauses (2) and (3), we would be left with all of the precedent in the courts right now. The precedent in the court right now is a very Eurocentric, non-Indigenous version of what is in the best interests of the child.
For about 60 years we’ve had the idea that a white picket fence, your own bedroom and lots of money in the house is exactly what every child needs. That’s the precedent. Then they bring in something called attachment theory to show that this child has lived with this foster parent for a couple of years and is now attached to this family, that this family has the means and the bedroom, and that this is exactly what they need.
The whole idea with this bill was to bring into this primary consideration the connection to family, language and culture. Those 10 factors to be considered, rounded out in an holistic way, say that you have to pay attention to what the child wants. You have to actually ask the child. His or her relationship with his siblings matters. All of this reflects the best practice that we know to date in the research and in the field of practice.
Then I would also say that subclause (g), the family violence piece, connects this bill to Bill C-76 and to the changes in the Divorce Act. Subclauses (2) and (3) actually represent the best knowledge we have today around what works in family service practice. I say to the committee that if we were to take those out, the outcome would not be good. We wouldn’t be happy with the outcome.
Senator Patterson: Let me save some time. We all know that the law clerk is overworked. Because the amendments did not come to us until just before the committee met, I did not have a chance to discuss my proposed amendments with the sponsor of the bill.
Please let me not go on record as defending or advancing a Eurocentric viewpoint, although that probably describes my heritage. May I have leave to withdraw my amendment?
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: The next amendment, Senator Patterson.
Senator Patterson: I would like to withdraw 10.7, with leave of the committee.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: We have to go back to DP-1.3d and DP-1.3e now because they are related to the amendments we just dealt with.
Are you withdrawing both of them?
Senator Patterson: The one relating to maltreatment, DP-1.3d.
The Chair: Yes, you just withdrew 10.7 and 1.3d was related to that. It had to do with maltreatment, and 10.7 was the only one that had the word “maltreatment.” Is that right?
Senator Patterson: I believe so.
The Chair: “Maltreatment” is the keyword here.
Senator Tannas: I think it is in 1.3e as well.
The Chair: Yes, it’s in 1.3e too. If you’re not doing 10.7, you could withdraw 1.3d because of maltreatment is. With leave, do you wish to withdraw 1.3d?
Senator Patterson: Yes, Madam Chair.
The Chair: Is that agreed, senators?
Hon. Senators: Agreed.
The Chair: In the next one we’re adding to the definition, “prenatal.” It also has the word “maltreatment.” There is no mention of maltreatment in the bill other than in this clause.
Senator LaBoucane-Benson: I would still like to come back to that one later to discuss prenatal. I think there’s a discussion we need to have if Senator Patterson is okay with that.
The Chair: We’ll continue to stand that.
Going back to clause 10, shall clause 10 carry? We did not amend it.
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Carried.
We have another amendment for clause 12 from Senator Patterson.
Senator Patterson: I move:
That Bill C-92 be amended in clause 12, on page 8,
(a) by replacing line 14 with the following:
“significant measure being contemplated to the child’s parent and the care provider, as”; and
(b) by replacing lines 20 to 26 with the following:
“(2) the service provider must, to the extent possible, ensure that the notice provided to an Indigenous governing body under subsection (1) does not contain personal information about the child, a member of the child’s family or the care provider other than that which is necessary to convey information about the measure.
(3) every Indigenous governing body must appoint a privacy officer to receive the notice under subsection (1) and to ensure that all personal information is treated in a manner that complies with applicable laws respecting privacy and the protection of personal information.”.
This amendment seeks to ensure that parents understand the significant measure being contemplated, as opposed to being given notice just prior to an apprehension or other significant measure. As currently stated, the bill only requires that notice be given before the action is taken. If this amendment were to be adopted, it would ensure that parents and care providers are able to be active participants in the management of a care plan as provided for in subparagraph 9(3)(c) which says:
. . . a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, . . .
Under subparagraph 10(3)(f), which lists factors to be considered when determining the child’s best interests,
. . . any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;
Active participation of parents and care providers ensures that we break this cycle of colonial paternalistic measures being taken by the state. The second part of this amendment also ensures that personal information should be protected, but not in a way that blocks information about the significant measure under consideration.
This amendment was also proposed by former Minister Philpott in the other place. When she proposed this amendment, she states that the amendment had to do with the fact that children were often taken from their parents without proper warning to the parents, without proper preventive measures being put in place and without information about what’s being done.
This particular amendment in clause 12 has to do with adding some clarity of language so that there’s a requirement for the service provider to give information as to exactly what measure is being contemplated for the child, and there would be advance notice of such. Also, part of this amendment speaks to the privacy provisions in here, so that there’s no personal information about the child in the notice that’s given, unless it is necessary to convey information about the measure, and there should be a privacy officer to ensure that information is treated in the manner that is respectful.
I heard stories of people where their privacy was not protected when children were taken from them. Unfortunately, the privacy of the child and family was not respected. That is the rationale.
Senator Sinclair: I am curious about the intent behind the provision. I appreciate the story that was related as background. At the same time, a simple reading of the provision concerns me because a service provider, as referenced in subclause (2) could be and likely would be an agency other than an Indigenous governing body or Indigenous service provider.
Am I reading this correctly? Let’s say a Winnipeg child and family service agency gets involved with a child or apprehends a child. They are to provide notice to the Indigenous governing body, but they can’t tell the Indigenous governing body who the child is or what they’re contemplating on doing, such as seeking a permanent order or seeking a temporary order.
I am not sure what the rationale is behind this prohibition on providing privacy information. How will the receiving agency know how to respond without knowing more than simply, “They have one of our kids?”
Senator Patterson: The intention in the latter part of the amendment is that there would be information provided, but information would be the minimum. There would be no personal information about the child other than that which is necessary to convey information about the significant measure being contemplated to the child’s parent and the care provider.
Former Minister Philpott was saying that otherwise the parents may have no idea why the child is being taken or what is the plan. The concern here is to give them minimal notice of what is going on.
Senator Sinclair: That doesn’t ease my concern. Another issue arises for me. Let me point out that this is not entirely arising from your amendment, but your amendment repeats something that’s already in the bill that caused some red flags to rise up for me. The Indigenous governing body has to have a coordination agreement in order to get any additional information. That is not in the draft amendment, I see, but it was in the original bill.
You’re intending on taking out the requirement that there be a coordination agreement. In other words, if an Inuit child from the Northwest Territories or Nunavut is apprehended in Ottawa, the Ottawa agency would have to notify the Indigenous governing body, the Inuit governing body in Nunavut, that it is doing something with regard to this child. It can’t tell them the name or any information about the child. Is that what this amendment would do?
Senator Patterson: It would include the necessary information about the measure being taken.
Minister Philpott thought that the requirement for advanced notice needed clearer language and that personal information should be protected, but not in a way that blocks information about the significant measure under consideration.
Maybe the officials would have a comment.
Senator Sinclair: As a general comment, and I will wait for the officials to comment, that’s different than the principle that’s in the American Indian Child Welfare Act, which requires that notification be given, any time a child is taken into care in any jurisdiction in the United States, to the home tribe of the child. That tribe then can exercise jurisdiction and take the case over.
This is a different principle. Maybe the officials can comment upon it.
Ms. Gros-Louis: There was an amendment at the INAN clause by clause that added the last sentence to this clause to reflect some concerns raised by certain provinces that had agreements to share information about the child.
The way the initial clause was drafted, it was not permissible to provide information about the child at all. We subsequently heard from certain provincial governments and territorial governments that they had in their systems allowance for certain disclosure of information going to the family or the Indigenous body. This amendment was to reflect the fact that we did not want to go backward on the way that certain provinces and territories were having transactions in the area with regard to Indigenous children. We wanted to allow what is presently in place to continue.
The other reference to the coordination agreement is relating to the fact that the amount of information which should be disclosed can be discussed during the coordination agreement. We left that in there to say, “This is one area that Indigenous groups should be talking about when concluding a coordination agreement.”
Senator Sinclair: I understand the principle, but the difficulty I have with it is that it doesn’t recognize, which I think the legislation is trying to do, the overriding interest that the Indigenous governing body has over the case of its own members. It gives again to the apprehending agency or the urban agency. I will use that as an example. That isn’t the only limitation, of course. It gives overriding jurisdiction to that agency to make decisions. All they have to tell the home agency, the home band or the Metis community is: “We have your kid in care. Maybe we can’t give you information about who that kid is because we don’t have a coordination agreement with you. Therefore, we’re not going to tell you.”
It seems to require that they have to tell them something, but they don’t have to tell them very much. I don’t know how a home agency will know how to get involved. There’s that issue. Another concern I have about it is that it goes against the principle of recognizing the right of Indigenous governments to be the primary care deciders for Indigenous children who are members of their communities. That concerns me.
It also doesn’t recognize cross-provincial issues. A number of children from Kenora, Ontario, who get apprehended in the city of Winnipeg because the city of Winnipeg is their main centre of focus. They come to Winnipeg for medical care. They send their kids to school there. Sometimes they have relatives there, and the kids visit their relatives in Winnipeg. If an agency in Winnipeg apprehends the kid, the Manitoba legislation requires that they have to notify the agency back home that they have the kid in care. This reduces that.
I am not sure I concur with the principle. I recognize that provinces don’t want to give too much away to the agencies that the children come from, but I don’t think that we should let them get away with that.
Ms. Gros-Louis: Actually, it was not necessarily based on provincial feedback that we heard the restraint on the sharing of information but more so from our Indigenous partners. There was a lot of concern about the fact that personal information was sometimes provided in a non-confidential manner, for example, in the band council office through a fax that could be accessible to everybody walking by.
During our engagement session, Indigenous groups emphasized that the first communication to an Indigenous body should be made, as much as possible, with less personal information. Once the first notice is received that does not prevent the case worker, from a band council, from reaching out to the province, having a conversation and seeking further details.
It’s the initial notice of the fact that a child is being apprehended or that a significant measure is being considered. At that time, we are trying to restrict the information being provided, but nothing after that precludes further information being provided to the right person.
Senator LaBoucane-Benson: Aside from this amendment, let’s contemplate a First Nation who gets notice of the name of the child and all the information they need, but they are nowhere near ready to assert their own laws. They might be five years down the road. As soon as Bill C-92 is enacted they will lose their notice and be penalized because they are not ready. It could be two or three years before they get to the start line. In the meantime, they don’t have a coordinating agreement for notice.
It would be really interesting if we could have something in here that says the provincial status quo holds for notice until a coordinating agreement is signed. The grand chief of Ontario or vice chief of Ontario was really adamant with me that they will lose notice because of this.
Ms. Gros-Louis: The way this clause is written, it’s not conditional on having an agreement. You don’t need to have an agreement to have notice. It is, in relation to the coordination agreement, the detail of the notice. How much detail you want to be provided can be discussed during the development of the coordination agreement. It’s not saying that you need a coordination agreement to receive notice.
Mr. Léonard: For further clarification, I understand we’re focusing on the amendment right now. If we take clause 12 as a whole, clause 12 was added following our engagement. I want to be clear that it provides that a notice has to be sent to the parent, to the care provider and to the Indigenous governing body as soon as that provision comes into force. There’s no need for a coordination agreement. That’s the right in subclause 12(1). It was added in there because we heard from Indigenous groups that they needed notice.
Senator LaBoucane-Benson: What about the child’s name, though?
Mr. Léonard: The thing is that before it did not. At INAN, they changed it. There is a very similar amendment to the one you are proposing, senator, and it was adopted. It’s now reflected in the second paragraph which allows for the necessary personal information to be shared. That includes the name. That includes anything that is deemed necessary in the context of that measure.
The only thing it also adds here is that people can agree, should they have a coordination agreement, to the content of the notice. We didn’t want to overbind people to what that would do. A great right is added in here, and it provides for notice to be received.
Senator LaBoucane-Benson: I didn’t realize it had changed from the last time. Before your clause by clause, I could not explain to people how this would work, but I see it now.
Senator Patterson: If I may, it does sound to me, from what Mr. Léonard said, that this concern has been addressed by amendment that took place in the other place.
With that, and if the committee agrees, there is a provision in my amendment about complying with applicable laws respecting privacy. That’s not in the bill, is it?
Mr. Léonard: The second paragraph of your amendment was added to the bill already. A similar amendment is now reflected in 12(2), but your proposed amendment at (3) was not added to the bill.
If I may speak to it, it talks not only about the applicable laws but that every Indigenous governing body must appoint a privacy officer. Our response would be that this is meant to be a framework. We don’t want to impose on groups that they need a privacy officer. Maybe they do. Maybe they don’t. That’s up to them to decide. Maybe sometimes it will be a case manager that will receive that information. It was not the intent to go in that amount of detail, but we did understand the reason behind a second paragraph, and it was incorporated.
Senator Patterson: Thank you for that.
Madam Chair, with that, I think it is good that we had this discussion. In light of that I will seek leave to withdraw my amendment.
The Chair: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Senator LaBoucane-Benson: I am glad we had that conversation.
The Chair: Before we carry on to the next item, we have a copy of the resolution from the Southern Manitoba Chiefs in English only. If I could have a motion, we could distribute it to the members in English only. Is that agreed?
Hon. Senators: Agreed.
The Chair: Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
On clause 13 we have an amendment from Senator Patterson.
Senator Patterson: I move:
That Bill C-92 be amended in clause 13, on page 8,
This amendment was proposed in the other place. The MP who presented it described it as an important part of moving forward. This is really about making sure that we support the communities. We do a little bit of work here again to make sure the parent is plural. Looking at how status of representatives in civil proceedings will be reflective of what we heard in the community, there’s a lot of support behind this by multiple organizations.
Concerns have been expressed by Indigenous organizations, including the Chiefs of Ontario, that clause 13 must be clarified to ensure that First Nations are party to child welfare proceedings as they in fact are under Ontario law. This was discussed in the house. The government side stated that the concept of a familial provider was new and would introduce uncertainty, although clearly it has precedent, including in Ontario law.
That’s the background, Madam Chair.
The Chair: Are there any questions or comments? Do the officials wish to make some comments?
Ms. Gros-Louis: Sure. With regard to the term “a familial provider,” we reiterate that it is a concept that would bring uncertainty to what is currently meant by the term “family and care provider,” as defined by the bill.
With the issue of “designate,” an Indigenous governing body can always designate another person or entity to make representations on their behalf in court. A power of delegation is not needed in this context.
With regard to the age of a child of 12 and the participation of children in matters affecting them, the bill speaks to taking into consideration the child’s views and preferences, giving due weight to the child’s age and maturity. This approach was preferred to an approach based on a specific age, to allow for a more individualized assessment to take place when determining the weight to be given to the child’s views and preferences.
The Chair: Are there other questions or comments?
Senator Sinclair: I am thinking for a moment. I know of many situations wherein there are caregivers for the child other than the natural parents of the child. Again, they are not in a relationship that is defined or covered by a court order or even a written agreement.
If I am reading the legislation correctly, they’re not given any right to party status in the proceedings. Even though they may have raised a child since birth, they’re not recognized as parents. It causes me concern.
I remember a case I did with an Inuit child who had died in hospital. I was conducting an inquiry into the death. For the year and a half that we ran the inquiry, we were dealing with the woman who was identified as the mother of the child, only to find out as the inquiry was finishing that she was actually the sister of the natural mother of the child. She had lost her child at birth. The sister, when she had a baby, gave her the baby to raise as her daughter, which is in keeping with traditions in that community. Yet, we didn’t know that. Under the act that governed that particular proceeding, she would have had no legal status.
I don’t think this would give her legal status, either. I am a little concerned that we aren’t quite covering off those situations. Do you think they’re covered under this situation?
Mr. Léonard: This is a very good point, Senator Sinclair. It’s why the bill includes people who are beyond the notion of parents. Subclause 13(a) provides that the child’s parent and care provider have the right to make representation in court. This was a very important right that was added to that bill. Yes, it was to extend these rights not only to parents but to any notion of a care provider who has day-to-day care for the child in accordance with the customs and traditions of the community.
Senator Patterson: Are you saying it’s covered?
Senator Sinclair: Does that meet your concern and the amendment you’re proposing, senator?
Senator Patterson: I think so. I will seek leave to withdraw my amendment.
The Chair: Is it agreed, honourable senators, to withdraw the amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clause 13 carry?
Hon. Senators: Agreed.
The Chair: There is an amendment to clause 14.
Senator Patterson: I move:
That Bill C-92 be amended in clause 14, on page 9, by adding the following after line 2:
“(1.1) A health care facility, health care provider or social worker must demonstrate that services that promote preventive care have been provided to support the child’s family and to serve the best interests of the child before any action can be taken to remove the child from its family.
(1.2) Within 24 hours after receiving documentation that could lead to an intervention by the service provider, a health care facility, health care provider or social worker must notify the child’s family and the service provider must not proceed with any intervention unless he or she can demonstrate that preventive care measures to prevent the removal of the child from his or her family have been explored and exhausted.”.
Colleagues, this amendment is designed to ensure that health care facilities or other health care providers demonstrate that services which promote preventive care have been provided to support the child’s family and to serve the best interests of the child. The amendment also provides that within 24 hours of receiving documentation which could lead to intervention by a service provider, the health care provider must notify the child’s family and demonstrate that preventive measures to prevent the removal of the child have been explored and exhausted. This hearkens back to another amendment regarding the need to include the parents and care providers in the development of care plans, as provided for in this bill under subparagraph 9(3)(c).
I think we are all familiar with the evidence which illustrates that too often in the past these alternatives have not been properly explored and the family has not been sufficiently engaged in state bureaucratic processes. This amendment is designed to counter that situation and set a new and better course.
Ms. Gros-Louis: This bill is not meant to create a detailed child and family services regime, which should really be left to Indigenous groups to create. The necessity to establish procedural rules, such as the one suggested, should definitely be determined by Indigenous groups and not by the federal government. Until that time, provincial standards will continue to apply.
Imposing a delay of 24 hours before an apprehension can occur may be too long in certain instances, and in others it may be too short. Each situation should be assessed on a case-by-case basis when it comes to determining when an apprehension can occur.
Senator LaBoucane-Benson: I understand what you’re saying. It’s a slippery slope, though, because your first argument is the one that some leaders are making for having no minimum standards and for having all of this left to Indigenous groups. We’re trying to find the standard for the balance.
I kind of like this one because it holds people’s feet to the fire. It is interesting that it could be done within 24 hours or it could be done sooner. You can demonstrate that the preventive care measures to prevent the removal of the child have been explored.
A lot can happen in 24 hours, but the child is in hospital. The child is safe. Mom is safe. This is an opportunity to get people involved and to say that you must notify the child’s family and the service provider within 24 hours. This leads to a more robust conversation about what happens to that child. It gives an opportunity for aunts or uncles to surface who might want to take temporary or permanent care of the child.
I don’t know but I like this amendment. It could be part of a minimum standard or a national standard.
Ms. Gros-Louis: In the case of preventive care, the child would not be in a hospital setting. It’s pre-birth. It’s prior to and it’s on a voluntary basis.
Senator LaBoucane-Benson: I meant the second one. Before the apprehension there’s that, but you’re right that 1.1 is different.
Mr. Léonard: The only thing I would like to add is that 1.1 imposes an important burden. There could be a risk. That was always the difficulty of dealing with this bill. You do not want children falling between the cracks. 1.1 refers to before an apprehension can occur. We’re talking in any situation. You can be talking about a situation where there is abuse. Here you’re saying that “a social worker must demonstrate,” before they can do anything. There’s a risk children could fall between the cracks because of that important burden and building that evidence before you can act. We understand there’s a need for some procedural rules to be put in place. This is why we think it’s best to leave it for Indigenous groups to decide. Yes, it’s a slippery slope where you may have children who are being abused and because of 1.1, a social worker can’t act. That’s a risk we need to take into consideration.
Senator LaBoucane-Benson: I hear you. The language of the prenatal care of (2) doesn’t seem to really hold service providers to task in supporting pregnant moms who are living in poverty or have addiction issues. I don’t know that the language says that you must support this mom or the need to find help for her, so that the only service she receives is not somebody standing outside the birthing room ready to catch a baby. This is a crass way of putting it, but we really want to hold the feet of service providers to the fire so that they are engaging with these pregnant women who are probably living in poverty and that there’s some care for them.
Maybe the amendment doesn’t necessarily achieve that as much as I want it to.
The Chair: Are there any further comments? Senator Patterson, do you have any further comments? Are we ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Agreed. Motion carried.
Shall clause 14, as amended, carry?
Hon. Senators: Agreed.
The Chair: The next amendment is to clause 15, and we have two people who I think have worked on this, Senator Patterson and Senator Pate.
Senator Patterson: They’re similar, yes.
The Chair: They’re similar.
Senator Patterson: Yes. Senator Pate let me know of her amendment.
The Chair: Does she have a separate one? Senator Christmas, I think you’re speaking for Senator Pate.
Senator Christmas: Yes, I have Senator Pate’s amendment, and I agree that it is very similar to Senator Patterson’s.
The Chair: With leave, can we distribute Senator Pate’s amendment?
Hon. Senators: Agreed.
The Chair: It’s being distributed. Thank you.
Senator Patterson, do you wish to proceed?
Senator Patterson: Yes, if I may. I will refer to Senator Pate’s amendment as well.
I move:
That Bill C-92 be amended in clause 15, on page 9, by replacing lines 9 to 15 with the following:
“15 (1) An Indigenous child must not be removed from his or her family and placed solely on the basis of or as a result of his or her socio-economic conditions, including poverty or lack of adequate housing or infrastructure.
(2) If an Indigenous child is at risk of being placed on this basis, positive measures must be taken to remediate any neglect related to the lack of financial means of the child’s parent or care provider.”
This, I may mention, was also an amendment proposed by MP Philpott. It’s designed to address the issue that no Indigenous child should be removed from their family and placed in alternative care simply on the basis of poverty. The additional language proposed in the amendment can clarify the underlying issue of overrepresentation, namely, that families struggle with low income, poverty and substandard housing. A positive obligation to stop family breakdown must be included to ensure the blame for child welfare removal does not continue to stigmatize families without appropriate services. When she proposed this amendment, former Minister Philpott stated:
I’ve already spoken out for putting the positive obligation on service providers to address the socio-economic challenges the family may be facing.
This amendment is designed to create that positive obligation, and that’s the reason it’s being presented.
Senator Pate’s amendment, if I may comment on that, is quite similar to what I recommended in the first part, but it’s the second part that is different.
There she has a much stronger, more mandatory obligation on the Government of Canada to take whatever measures are necessary to improve the socio-economic conditions existing in that community to ensure that any neglect of an Indigenous child is not related to a lack of financial means of the child’s parent, custodian or guardian.
It’s a matter of the strength of the obligation placed on the federal government, and the amendment I’ve presented is softer, that “positive measures must be taken.” Her amendment is more of a requirement of the Government of Canada to take whatever measure is necessary. I hope that helps.
Senator Tannas: I would suggest that part 2 of Senator Pate’s amendment goes further than just dealing with the family. It talks about improving the whole community. As much as I am intrigued by that concept of guaranteed minimum income and all of that, this isn’t the place for it, I don’t think. We want to focus on a family in a situation, rather than start prescribing things to an entire community.
Senator Coyle: May I ask Senator Patterson a question about his amendment? I understand adding the second part because that requires some attention to the issue of neglect or lack of financial means, so it actually is an action.
The first part, though, is getting at the same thing that’s already there in 15, is it not? It’s more fully stated in the existing 15 than what you have here in 15(1).
Senator Patterson: That’s right.
Senator Coyle: I guess I am trying to understand why 15(1). Why not just add that second part?
Senator Patterson: I guess 15(1) in my amendment could be seen to have a little broader socio-economic conditions, including poverty or lack of adequate housing or infrastructure.
Senator Coyle: That’s in there, though.
Senator LaBoucane-Benson: This amendment is the one that went to the House of Commons, and maybe a different amendment was made to add, “or the state of health of his or her parents or the care provider.” That was probably added in the House of Commons version, or did you take that out on purpose?
Senator Coyle: This is the version we’re dealing with, though.
Senator Patterson: Yes. The second part that was rejected is more the reason I am advancing this. It is about the positive measures. That’s the part that was rejected. On the first part, you’re right that it duplicates.
Senator Coyle: Why don’t we just leave it as is?
Senator Patterson: That would be fine with me, but it’s the positive measures that are new and we might want to get a comment from the officials, Madam Chair.
Senator Simons: I find myself in an awkward position because I am here subbing in for Senator Pate. It certainly doesn’t seem to behoove me in such a circumstance to speak against her amendment. Yet, were I not sitting in for Senator Pate, I would say that it is a challenge to say that the Government of Canada must take whatever means necessary to improve the socio-economic conditions existing in that community.
That’s a lot of things. God knows we ought to be doing that, but I don’t think we can make the future of one particular child contingent on making up for 100 years of bad practice.
The Chair: Would the officials like to make some comments?
Ms. Gros-Louis: We would tend to agree with the honourable senator’s last comment. Addressing socio-economic conditions in Indigenous communities consists of a broader discussion that needs to take place outside of the conversation with regard to this bill. Ongoing work with our partners is taking place to address this issue in other fora. We’re of the view that this amendment would expand the scope of the bill and its main objectives.
Senator Tannas: Which one are we on? Are we dealing with Senator Patterson’s or are we still discussing both?
The Chair: We’re discussing both, although it seems the consensus is moving toward Senator Patterson’s.
Senator Patterson: I think my amendment is actually on the floor.
The Chair: Yes.
Senator Simons: You want to take out that first paragraph of it.
Senator Patterson: I am open to that, yes.
Senator Simons: It actually goes backward to what is in the text now. I suspect Senator LaBoucane-Benson is right. There must have been an amendment in between the time.
Senator Patterson: I would be fine with moving with 15(2).
The Chair: Does the wording then match the current wording in the bill? Does it follow through if you read the two together? That would be my question.
Then I guess the technical things could be done later, but it would have to be labelled 15(1) and then this would be 15(2).
Senator Tannas: I can make a subamendment, if you want. You have to read the amendment.
The Chair: My question was: Does it fall in line smoothly with what is in the bill already?
Senator LaBoucane-Benson: Yes.
The Chair: Does 15(2) fall in line smoothly?
Senator Patterson: I think so, yes. It’s about not discriminating against their being poor.
Senator Tannas: I am happy to move it if you want. The motion, then, would read:
That Bill C-92 be amended in clause 15, on page 9, by adding, after line 15, the following:
“15.1 If an Indigenous child is at risk of being placed on this basis, positive measures must be taken to remediate any neglect related to the financial means of the child’s parent or care provider.”.
The Chair: 15(1) or 15(2)?
Senator Tannas: I see. We would have to reorder this to be 15(1). We would have to put that in as well. After line 15, we would have 15.1.
The Chair: The law clerks will take care of that.
Senator Tannas: We don’t need to worry about it, great.
Senator Sinclair: For consistency purposes, I want to propose to Senator Tannas and Senator Patterson that we’re using different wording. Actually, the provision currently refers to the idea that “the child must not be apprehended solely on the basis of his or her socio-economic conditions.” Now we’re using a different term, which is lack of “financial means.” Yes, there it is.
Could I suggest that we rephrase your amendment to say, “related to the socio-economic conditions?” Do you both agree? I think it keeps the provisions related to each other. Judges love this kind of stuff.
Senator Patterson: That would be “related to the socio-economic conditions and means of the child. ”
Senator LaBoucane-Benson: No. “Socio-economic conditions of the.”
Senator Sinclair: Socio-economic conditions.
Senator Patterson: I got it, yes.
The Chair: Does the committee agree to the amendments to this motion?
Hon. Senators: Agreed.
The Chair: If so, it will be translated and then it will come back to us.
Is it agreed with leave that KP-15.9 be withdrawn?
Hon. Senators: Agreed.
The Chair: Agreed. That is withdrawn.
Shall clauses 16 to 19 carry?
Hon. Senators: Agreed.
Now we have a new clause, Senator Patterson.
Senator Patterson: This is number DP-19.1.11. I move:
That Bill C-92 be amended, on page 11, by adding the following after line 2:
“19.1 (1) Unless another forum is specified in an applicable indigenous law, all proceedings under this Act are to proceed in a provincial or territorial court that normally hears proceedings in relation to the protection and placement of children.
(2) For greater certainty, any matter that involves the application of the provisions of this Act may be heard in a provincial or territorial court referred to in subsection (1).
(3) Nothing in this Act confers any jurisdiction on the Federal Court of Canada in respect of proceedings relating to child and family services.”.
Obviously, this amendment is aimed at ensuring that proceedings under this act proceed in a court of jurisdiction most familiar with such cases, courts that normally hear proceedings relating to protection and placement of children.
This issue was raised by the Chiefs of Ontario, who recommended that the courts of the province or territory normally dealing with these matters hear such cases. They say that with Bill C-92 child protection agencies and other service providers would be making decisions under two or three laws, a mixture of CYFSA, Bill C-92 and possibly an Indigenous law as well.
An Indigenous law might provide for mechanisms of enforcement, but it might not. No default method of enforcement is set out in Bill C-92 for decisions in which Bill C-92 applies. Without further clarification, there is a risk that Bill C-92 means that some cases could be brought in Federal Court, or at least that some people would try this route. For instance, decisions made under an Indigenous law could be treated as subject to judicial review in Federal Court.
Since a First Nation with band status under the Indian Act is treated by legal precedent as a federal board, commission or other tribunal within the meaning of section 18 of the Federal Courts Act, “a conclusion we disagree with,” say the Ontario chiefs, “but have no control over.” A First Nations child welfare agency might be similarly treated. The Federal Court system is not designed for child protection cases, and it’s completely ill-suited for them.
If this argument is accepted, I believe we want to ensure the greatest possible consistency when it comes to the implementation of this act and ensuring that provincial or territorial courts most familiar with such cases have the primary jurisdiction to do that.
Senator Sinclair: I have a couple of comments. I don’t disagree with the amendment. I think it’s a good idea, but I point out again that in some provinces the provincial courts don’t have jurisdiction over family matters: Manitoba being one of them and Ontario being another one. You have to go to the Manitoba Court of Queen’s Bench for a family matter if you are in the city of Winnipeg or the city of Brandon. If you’re outside the city of Winnipeg or Brandon, then you go into provincial court. In Ontario, I know they have a unified family court in the Hamilton area. I might be incorrect about the city, but it means that all family matters, including child welfare cases, go to that court.
The reference to provincial or territorial courts might prove problematic. I’d suggest that maybe we delete reference to “provincial or territorial” and simply say, “are to proceed in the court that normally hears proceedings in relation to the protection and placement of children.” I think that would cover it. Take out “a provincial or territorial” and simply put in the word “the.”
I will read 19.1(1) as I think it would read:
“Unless another forum is specified in an applicable Indigenous law, all proceedings under this Act are to proceed in the court that normally hears proceedings in relation to the protection and placement of children.”
In the next subclause (2):
“For greater certainty, any matter that involves the application of the provisions of this Act may be heard in a court referred to in subsection (1).”
I raise a word of caution. I am not suggesting a change, but the jurisdiction of the Federal Court of Canada is defined in the Federal Court Act. The Federal Court Act says that the Federal Court of Canada has jurisdiction over all federal entities, and that includes Indian bands in some cases because it’s considered to be a federal entity. It doesn’t apply to Inuit communities or Metis communities at this point in time, but it might if there were federal legislation. I can see a situation where this limitation or denial of access to the Federal Court might be challenged for some reason.
I would suggest that we leave it and let that resolve itself as it goes down the road. The intent is clear that the family courts of the territory or the province are the ones to have jurisdiction, and I agree with that.
Senator Simons: Senator Sinclair has already said all that I needed to say on this, and more, and better, and in that great basso profundo voice.
Senator Patterson: Should we hear from the officials? They’ve been helpful. I am open to hearing from the officials. You see the background for this amendment, Madam Chair.
The Chair: Yes.
Ms. Smith: Parliament has the power to pass legislation that specifies which matters are heard in provincial court and which are heard in Superior Court. Within certain limits, Parliament also has the power to pass legislation that limits or ousts the jurisdictions of Superior Courts to adjudicate matters that fall under federal legislative jurisdiction. We don’t see any concerns with the amendment as proposed.
Whether or not the amendment is there, child welfare matters regarding child and family services supporting Indigenous children and their families would continue to be heard according to the current practice, either before provincial court, a Superior Court or a unified family court in some jurisdictions. The seized court would then be asked to apply the rules and standards in the federal law. Regardless of whether or not the amendment is there, the practice will continue.
Senator LaBoucane-Benson: This was something that we heard not only from the groups that you mentioned. Other people said that they would like clarification of what courts hear this. I fully support this amendment.
The Chair: We have to agree to amend the original amendment, first of all.
Senator Sinclair: Do you agree? Is there any concern?
Senator Patterson: Yes. Thank you for the subamendment.
Senator Sinclair: I will make the suggested change. I will make a motion to change the provision so that it reflects the changes I suggested, which is to take out the words “provincial or territorial” from subclauses 19.1(1) and 19.1(2) and to replace the word “a” before “provincial” with “the” court.
The Chair: Is it agreed that the amendment be amended as described?
Hon. Senators: Agreed.
The Chair: We will send this for translation, and then we’ll come back to it.
It being 5:42, do we want to suspend or continue?
Some Hon. Senators: Continue.
Senator Patterson: I have about five more amendments or maybe less. I am withdrawing some. Can we try to get through?
Senator Sinclair: Let’s try to finish.
The Chair: Do you want to start the next one? If we don’t get done within 15 or 20 minutes, we can come back to it.
Senator Patterson: I would like to. Maybe I could say, on my next amendment, 20.11, it proposes to give the government a legislative authority or regulatory power respecting any matter. A suggestion came from the Assembly of Nova Scotia Mi’kmaq Chiefs and M.P. Elizabeth May that there has to be a regulatory power to enact regulations pursuant to coordination agreements, et cetera.
Is that a legitimate concern? Is the bill missing the regulatory authority? That’s what the amendment is aimed at. Is it a gap?
Mr. Léonard: Yes, senator, to answer your question, we believe that our regulation-making power, which is a general regulation-making power, already captures that. However, as was flagged at the INAN committee, the distinction we would make is that here we talk about providing through regulations the legislative authority respecting any matter.
In our view, that would go beyond the scope of the bill because through regulations you could provide for legislative authority outside of the child and family services matters. However, we have a general regulation-making power because the regulations have to be co-developed with the affected Indigenous groups. If there is a need, clause 32 is a general regulation-making power that covers everything under this bill, so it would be unnecessary.
Senator Patterson: I will ask leave to withdraw that amendment.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: Next should be KP-20.11.
Senator Christmas, you’ll be dealing with this one. Would you move the motion, please?
Senator Christmas: Certainly. I move:
That Bill C-92 be amended, in clause 20,
(a) on page 11, by adding the following after line 28:
“(2.1) In negotiating a coordination agreement under subsection (2), the Minister must consider the following principles:
(a) the agreement should fulfill the purposes and principles of this Act;
(b) fiscal arrangements referred to in paragraph (2)(c) should provide for adequate funding to cover the actual cost of
(i) child and family services, including core and operational cost and capital funding, and
(ii) the development of Indigenous laws and any supporting institutions and services required to enable the Indigenous governing body to exercise its legislative authority in relation to child and family services;
(c) any provision for funding provided under the agreement should be periodically reviewed and adjusted to account for inflation, demographic changes, changes in the needs of children and families and any unforeseen community emergencies that place higher numbers of children and families in need of child and family services; and
(d) the agreements should reflect any recommendations contained in the report referred to in subsection 31(3).”
(b) on page 12, by replacing lines 8 to 14 with the following:
“(5) A dispute resolution mechanism provided for by regulations made under section 32 may be used
(a) to promote entering into a coordination agreement, if the Indigenous governing body, the Minister and the government of each of those provinces have made reasonable efforts to enter into a coordination agreement but did not enter into a coordination agreement; and
(b) if a dispute arises in relation to an existing coordination agreement entered into under subsection (2).”.
Senator Pate explains that the first part of the amendment. It’s a new section that she proposes to add under clause 20. She proposes to establish funding principles that must be taken into account when federal and provincial governments provide funding under the coordination agreement.
The second part of her amendment includes an amendment to the dispute resolution mechanism, which is already in the bill. The amendment adds dispute resolution where an agreement was entered into but funding is not adequate.
Those are the two explanations of her amendments.
Senator Sinclair: I am a little concerned about our crossing the line into making this a money amendment. I want to carefully consider that before we go any further.
I recognize that the bill itself refers to fiscal arrangements and funding commitments. To the extent that it’s consistent with that or simply relates to that I am fine. This is the first time I’ve had a chance to see it, and I am a little concerned that we might be enacting a money amendment.
I don’t know from whom we get advice on that. Does the legal counsel who is here helping us with that, or do we have to refer it to somebody to get an opinion?
The Chair: The departmental officials can assist us with that.
Senator Sinclair: How long would that take?
The Chair: The officials are here.
Senator Sinclair: I thought you meant Justice officials. I am sorry.
I understand that. I just want to make sure we’re not treading into non-jurisdiction of the Senate with regard to money bills. If the official can talk to us about that, it would be good.
The Chair: While they are considering it, perhaps there are questions or comments that senators might wish to entertain while they’re thinking.
Ms. Gros-Louis: Since an amendment may not infringe upon the financial initiative of the Crown it is, in our view, inadmissible if it imposes a charge on the public treasury or if it extends the objects and purposes or relaxes the conditions and qualifications specified in the Royal Recommendation.
An amendment is also inadmissible, in our view, if it exceeds the scope of the way and means motion on which a bill is passed, or if it imposes a new charge on the people that is not preceded by the adoption of a ways and means motion, or not covered by the terms of a ways and means motion already adopted.
Senator Patterson: We have a problem, Houston.
Senator LaBoucane-Benson: How would the committee feel about taking (2.1) of Senator Pate’s amendment and placing it in our observation? I am just saying that we need to consider all of these pieces in the coordination agreements.
Senator Sinclair: Have we ever done that?
Senator LaBoucane-Benson: I don’t know if we have or not. I am new; I just say things.
The Chair: By including it in observations, it would certainly be a good way to deal with it.
Senator Coyle: I am agreeing that there’s value here, so that’s a good way of accommodating it, I think. What do I know?
Senator Sinclair: Where does that leave us with regard to the amendment? Do we still have to vote on the proposed amendment, then?
The Chair: With leave, we could withdraw the amendment and propose that the points be placed in observations.
Hon. Senators: Agreed.
Senator Christmas: There’s a second part of her amendment that doesn’t deal with the funding. She has an amendment that deals with the subclause 20(5) under the “Dispute resolution mechanism” on page 12.
Senator LaBoucane-Benson: Senator Christmas, do you want to amend your motion to remove (2.1) and then we can discuss (5)?
Senator Christmas: Yes.
The Chair: Is it agreed to amend this particular amendment to remove section (2.1)?
Hon. Senators: Agreed.
The Chair: Agreed.
Senator Christmas: I will read again what she has proposed as the dispute resolution mechanism. She proposes to remove the existing clause and then she breaks this into two parts, (a) and (b). It says:
A dispute resolution mechanism provided for by regulations made under section 32 may be used
(a) to promote entering into a coordination agreement, if the Indigenous governing body, the Minister and the government of each of those provinces have made reasonable efforts to enter into a coordination agreement but did not enter into a coordination agreement; and
(b) if a dispute arises in relation to an existing coordination agreement entered into under subsection (2).
She is suggesting that the dispute resolution mechanism be triggered if the parties have entered a coordination agreement but did not enter into a coordination agreement. It seems the first part is that they’ve agreed to go into a coordination agreement but did not actually enter into a coordination agreement. A dispute resolution mechanism will kick in at that point. Part (b) is, “if a dispute arises in relation to an existing coordination agreement . . . .”
I guess the new part is that last part. If an existing coordination agreement is in place and there’s a dispute, then this dispute resolution mechanism would kick in.
Mr. Léonard: Senators, as was mentioned, subclause 20(5) already provides for a dispute resolution mechanism. We kind of restrained going too deep into the mandate of that dispute resolution mechanism because it has to be created in co-development with Indigenous peoples through regs. The more we put here, the more bound we are. That’s why we stayed as broad as possible.
There is already a dispute resolution mechanism provided that could seek to achieve these goals, but the mandate of that dispute resolution mechanism and what it would look like needs to be co-developed, and we didn’t believe it was appropriate to put that in this clause.
Senator Coyle: Because it’s a framework.
Mr. Léonard: Because it’s a frame.
Senator Simons: I feel like I am betraying the person I am here to represent. I wondered if Senator Christmas would withdraw the whole amendment with the proviso that there be a note in the observations. As I said on second reading, if there’s no funding, then it’s an empty frame.
Senator Christmas: No, that makes me feel a lot better, Senator Simons. I was thinking of withdrawing it. Senator Pate isn’t here but, if you’re willing to collaborate, I am willing to withdraw the entire amendment.
The Chair: For clarification, are you asking with leave to withdraw the complete amendment?
Senator Christmas: Yes, please.
The Chair: Is it agreed?
Hon. Senators: Agreed.
The Chair: Motion KP-20.11 is withdrawn.
The next one is DP-20.12a.
Senator Patterson: Actually, I have only two amendments left. I am going to withdraw the rest, just for your information.
The Chair: Which two will you put forward?
Senator Patterson: I am putting forward 20.12a. I was going to ask the officials if that amendment is helpful. The only other one I am proceeding with is the very last one about the needs of Indigenous elders, DP-PRE.
The Chair: Why don’t we suspend, and then you can clarify which ones you’re bringing forward and we’ll come back with a cleaner picture? By that time the ones we have stood will probably be back.
We will suspend, and then we’ll come back after the vote.
(The committee suspended.)
(The committee resumed.)
The Chair: Senator Patterson, I believe you were about to move your motion DP-20.12a.
Senator Patterson: This amendment deals with the situation where two or more Indigenous groups have entered into an agreement. I am going to ask for comment, but I will read the amendment first. I move:
That Bill C-92 be amended in clause 20, on page 12, by adding the following after line 7:
“(4.1) If two or more Indigenous groups, communities or peoples have entered into an agreement with respect to the provision of child and family services, any Indigenous governing body acting on behalf of an Indigenous group, community or people that are party to that agreement that undertakes negotiations with a government to enter into a coordination agreement must provide notice of those negotiations to each Indigenous group, community or people that are party to the original agreement.
(4.2) For greater certainty, subsection (4.1) does not prohibit any Indigenous groups, communities or peoples from entering into new agreements with one another with respect to the provision of child and family services.”.
This was proposed in the other place. It provides that if two or more Indigenous groups have entered into an agreement related to child and family services, any Indigenous governing body undertaking negotiations with the government to enter into a coordinating agreement would be required to provide notice to each Indigenous group that is party to the original agreement.
When the amendment was proposed in the house by an M.P., it was stated:
This amendment provides clarity for Indigenous groups or communities that have existing agreements regarding child and family services. This is something that came up from a couple of different witnesses. We want to ensure that what is working continues to be supported, while making room for those who need to make changes to have the capacity and ability to do it.
The Chair: Questions or comments?
Senator Sinclair: I appreciate the comment from the MP, senator, but I wonder whether you’ve given thought to the concern parties may have about an agreement that they’re going to have to involve other people in the contract or agreement discussions they’re having with the government. In effect, it is requiring them to include others in their otherwise private negotiations.
From a business perspective, I can tell you that you wouldn’t want to bring somebody else into your discussions with another party. I am not sure every agency is going to want to do that in this case. I wondered if you had given some thought to how you might address this concern.
As I understood your point, it was that the second agreement would not undermine the first agreement. I understand that, but if they are entering into an agreement to provide services and they are party to another agreement, now they have to give notice of those negotiations to each of the other Indigenous groups that are party to the original agreement. My assumption is that it’s so they can somehow be involved.
I am not sure how one addresses that, but maybe you have a comment you can share.
Senator Patterson: It certainly wouldn’t be welcome in the business world.
Maybe, Madam Chair, we could ask the officials if they have a comment. This issue has come up before.
Mr. Léonard: Yes, senator. It is our belief that the bill would be encroaching on the powers of Indigenous groups to decide how they want to deal with their own business. It is up to them to decide when they want to conclude an agreement and how they want to apply that agreement. Should they have existing agreements between groups, then nothing precludes them from revisiting them. It is not in federal legislation that such a provision would be necessary.
Senator Simons: I understand perfectly well Senator Patterson’s point. If you’re First Nation X and you contract with First Nation Y to do your child care, you wouldn’t want a deal happening that you didn’t know about. I think you’re right. That would have to be something they would put in their own contracts.
I don’t know that it is the place of the federal government to tell them how to do their own business. I think it’s good that we had this discussion because it’s an issue that you would want to flag when you’re going into the discussion of the coordinating agreements.
Senator Patterson: I’d like to seek agreement to withdraw the amendment.
The Chair: Does the committee agree?
Hon. Senators: Agreed.
The Chair: The motion is withdrawn.
The next amendment, Senator Patterson.
Senator Patterson: I think I am going to withdraw them all, but I would like to withdraw 20.12b.
The Chair: Is it agreed? I thought you were going to list them all. If you don’t move them, we don’t have to go through them. Just skip to the one you’re going to do next.
Senator Patterson: I would like to move, Madam Chair, 30.1.15 about the establishment of an advisory committee.
The Chair: Before that, we will deal with the clauses that are in between.
Senator Patterson: Yes.
The Chair: Shall clauses 20 to 30 carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Then we skip to DP-30.1.15.
Senator Patterson: I move:
That Bill C-92 be amended on page 15, by adding the following after line 27:
“30.1 (1) The Minister must establish an advisory committee to advise and assist the Minister on matters concerning child and family services that relate to Indigenous children and to individuals to whom those services are provided.
(2) The mandate of the advisory committee is to
(a) review child and family services matters that the Minister may refer to it;
(b) advise and assist the Minister in his or her role under section 27; and
(c) report to the Minister on the progress on measures taken under this Act.
(3) Within two years after the coming into force of this Act, and every year after that, the advisory committee must prepare and submit a report to the Minister on its activities and findings, the operation of this Act and any other matter that it considers relevant.
(4) The Minister must include the advisory committee’s report in his or her report on the review prepared under section 31.”.
On the background to that, there are several issues behind this amendment. The first is that a five-year review is too long. Having a three-year review ensures governments will be held to account in a regular four-year parliamentary session.
An additional subclause is also proposed. This was proposed by Indigenous groups, many of whom are concerned about the adequacy of funding to support this bill. With respect to that subclause amendment in particular, former Minister Philpott stated at the committee in the other place:
The initial desire here was from the cries that I heard from Indigenous peoples to create an office of the commissioner of Indigenous child well-being or a commissioner of the best interests of the child. I recognize that would be out of scope and it’s unfortunate that it wasn’t included in the bill in the first place. I think the closest that we would get to that, that would not be deemed out of scope, would be to include a requirement for the minister to establish an advisory committee to assist the minister and submit reports to the minister on a regular basis about the implementation of this bill. A national advisory committee on Indigenous child welfare already exists, but this would put that advisory committee into legislation and would support making sure that the work of this bill would see follow-through.
On the Senate side, before our committee, Jennifer Cox, barrister and solicitor and project lead for the Enhanced Mi’kmaq Child Family Initiative, also raised this issue by telling us that five years was too long, while the Assembly of Nova Scotia Mi’kmaq chiefs echoed that call in their brief.
I am impressed this was proposed by former Minister Philpott, who was a lead on the consultations leading up to this bill, and I recommend it for your consideration.
Senator Sinclair: I think it’s a good idea. I am in support of the principle. I have a couple of questions to clarify, though. It doesn’t talk about membership here. I wonder if you have some ideas about membership. Also, it doesn’t talk about the relationship between this committee and the commissioner. If I remember correctly, the commissioner has an advisory group that he works with, does he not?
Senator LaBoucane-Benson: That’s for language. I don’t think there’s one in this bill.
Senator Sinclair: I am getting the bills confused. The role of the commissioner is also to advise the minister, as requested by the minister, but I am curious about how we keep them from becoming too tangled up. It also occurs to me that we may have to talk about how the appointments are made, for what length of time and details such as those.
Senator Patterson: The amendment leaves this up to the minister. If we’re going to support this amendment, I would suggest that we may not want to get into the weeds of prescribing the composition of the committee and its time frame. I guess that’s all I will say.
We know who the Aboriginal child welfare experts are in this country. I’d be very surprised if they weren’t involved with this advisory committee. I think we can still go ahead with this amendment without that detail.
I don’t know if the officials would have any comments.
The Chair: Do the officials have something to comment?
Ms. Gros-Louis: Yes, Madam Chair. As the bill was co-developed, so will the implementation of this bill be co-developed. The intention is to have conversation with partners, including Indigenous partners and provincial and territorial government in terms of if such a committee would be required.
This discussion will take place at the distinction-based transition governance structures that will be established should the bill receive Royal Assent.
Senator McCallum: Under 30 it says:
. . . a provincial government or a public body established under a provincial Act may collect and disclose information . . . .
The personal disclosure of information under provincial jurisdiction has its own laws when we’re looking at personal health information and information about the child. Are there are separate laws for federal, or this doesn’t apply here?
Mr. Léonard: I would answer that clause 30 is something distinct from this amendment. Clause 30 was talking about the information-sharing agreements that were discussed at clause 28. Clause 30 was added to the bill to make sure that all parties would have the power to implement their information-sharing agreements, whereas here we’re talking about establishing an advisory committee to help the minister implement the bill.
Senator Lovelace Nicholas: My question would be for the minister and the person who takes care of children. Would it be up to the discretion of Indigenous people to pick an Indigenous person for this job?
Mr. Léonard: As was mentioned by Ms. Gros-Louis, we heard throughout our engagement that, yes, there is need for a body. We know this, but we’ve heard throughout that it would have to be Indigenous led.
Here that advisory is completely at the discretion of the minister, so it certainly goes against what we’ve heard. Yes, there is a need for potentially a child advocate. We heard this. Indigenous groups are thinking about it. Maybe we heard about a centre of expertise that would help everyone get capacity.
There is an awareness out there that something of an institution or a body is needed, but what has been discussed throughout with Indigenous groups is that it has to be left to be determined by Indigenous groups. They know best what institution or committee they want to see created to help the implementation of the bill.
Senator Coyle: I certainly don’t disagree with that fundamental point, which has been at the root of almost everything we’ve been discussing here.
I know I am a little bit off the amendment, but I don’t know the intention of Senator Patterson. One of the things we heard about is that young people who have come through, and are still young people, care. Their voices need to be at that table. They may not necessarily be thought of as the ones who should be engaged with. We heard loudly and clearly very wonderful and helpful testimony from those people. I am just mentioning that at this point.
Senator LaBoucane-Benson: I wonder, Senator Patterson, thinking about what the department officials have said, if we kept 30.1(1) and didn’t put the mandate down, I think we should lock down the advisory committee.
If there’s a centre of excellence and other things, that’s fine. But lock down the advisory committee but leave it open enough that it has to be established. If it’s going co-developed, that’s great. We don’t have to get into the weeds. But I do like (3) and (4) about having a report and ensuring it is part of the minister’s report.
How would you feel about not having clause (2) about the mandate and letting that be co-developed? I think most people around the room think an advisory committee is probably a very good idea. That can include youth who have been in care.
Senator Coyle: I think it’s a good suggestion. I wonder if it might be better to leave it even more open and call it an advisory body. To me, that’s a little more generic.
I wonder if, Senator LaBoucane-Benson and Senator Patterson, you think it might also be advisable to put something in there that must establish an advisory committee in consultation with Indigenous partners, or something to that effect so that it’s not just the minister establishing it.
The Chair: Co-developed.
Senator Coyle: — language we want to use is.
Senator LaBoucane-Benson: Consultation is better defined.
Senator Coyle: We know that’s the intent.
Senator Patterson: I hear general support for the amendment, I think. I am fine with deleting the mandate. I think the reporting requirement is good, like (3) and (4). I think adding in consultation with Indigenous partners is good. That will help make sure the minister doesn’t put friends on the committee.
Let me raise a thought following Senator Coyle’s suggestion: Is there a place for a representative of provinces here?
The Chair: Representative of the —
Senator Coyle: It depends on how those consultations go. I wouldn’t want to preclude the decision on that.
Senator Patterson: I was just thinking out loud.
Senator Sinclair: There already is a council of ministers of family services. They meet on an annual basis, I know that, so my guess would be that Indigenous and child welfare issues would be on their agenda. I am not concerned about their voice.
I did make a note that provincial reps on the committee would probably not be a good idea, but I didn’t see it being included here.
I think I can live with the suggested changes. I am just saying that I still think it could have been fleshed out a bit more so far as membership, the issue of how they’re appointed and what the process is for their engagement. I am prepared to leave it up to the minister to sort all of that out going forward.
Senator Tannas: In consultation?
Ms. Gros-Louis: Could we propose that this be part of observations? We are planning a transition governing structure to be co-developed. It’s going to look at all of those issues: who is going to be represented? Youth, provincial, the membership and the mandate, and it’s all to look at the implementation of this legislation.
Senator Patterson: The thing that is here would be a report to Parliament, I think, looking at 30(1). It calls for the minister to report to Parliament on the five-year review. That would mean that this advisory committee would also report to Parliament, because they have to be part of the minister’s report.
The Chair: I believe it says in your amendment, “submit a report to the minister.”
Senator Patterson: But then the minister must include the advisory committee’s report in his or her report on the review prepared under section 31, which goes to Parliament.
I think we would want the advisory committee report to be made public.
The Chair: You’re looking at 31(4), tabling of the report.
Senator Patterson: Yes.
The Chair: Yes, it does say Parliament.
Senator Sinclair: Ms. Gros-Louis had suggested we include this in an observation. The concern I have with that, quite frankly and with great respect, is that if we put it in an observation, it has less force than if it’s in the bill. If the next minister to come along wants to minimize the involvement of Indigenous people in the process, one way of doing it is to just ignore the observation.
I suggest we leave it as an amendment and go with the wording that we’ve now settled on.
Senator Patterson: So that would be:
The Minister must establish an advisory committee in consultation with Indigenous partners, Indigenous —
Senator LaBoucane-Benson: Governing bodies.
Senator Sinclair: That’s the word.
Senator Patterson: Indigenous governing bodies. Delete (2) and retain (3) and (4), which would be renumbered.
The Chair: Does the committee agree to those changes?
Hon. Senators: Agreed.
The Chair: Agreed.
Then we will need to stand this and come back to it once it has been translated.
There is one missing in here. Are you moving your next amendment, Senator Patterson, DP-31.15?
Senator Patterson: I think, Madam Chair, I am done. I have no further amendments.
The Chair: Shall clause 31 carry?
Hon. Senators: Carried.
Senator Sinclair: If you’re not going to move it, I am going to move your next one.
Senator Patterson: Thank you, you’re welcome to it. I did overlook that one.
Senator Sinclair: If you want to move it, I will give you full credit. I like your next amendment about the funding issue being part of the review.
The Chair: Let’s get some clarification before we start. Just one moment, please, senator. DP-31.15. Are we proceeding with that?
Senator Patterson: Madam Chair, I do have one more, and that would be that Bill C-92 be amended in the preamble on page 2 by replacing —
The Chair: Can we do that later?
Senator Patterson: Yes.
The Chair: So you’re not tabling DP-31.15. This is the funding again.
Senator Patterson: Yes, I do want to move that one.
That Bill C-92 be amended in clause 31, on page 15, by adding the following after line 32:
“(1.1) When undertaking the review, the Minister must specifically study the adequacy and methods of funding and assess whether the funding has been sufficient to support the needs of Indigenous children and their families.”.
Senator Sinclair: I agree.
The Chair: I assume you want to say something. Do you agree?
Senator Sinclair: I agree. It’s a good amendment.
The Chair: Are there any others?
Senator McCallum: It says here every five years for the review. I thought it was down to three.
The Chair: No, 31.15.
Senator McCallum: But 31.1, in the bill it says “every five years after the day.” Okay.
The Chair: Are we ready for the question?
Some Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: The motion is carried.
Shall clause 31, as amended, carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Senator Doyle: — the 31 we’re talking about here.
The Chair: 31.1?
Senator Doyle: That’s the one Senator McCallum —
Senator McCallum: That’s where there had been a request for three years.
The Chair: We had an amendment for that.
Senator Doyle: We already agreed on three years.
The Chair: No. That was a different —
Senator Sinclair: That was another bill.
The Chair: That was on Bill C-91. Okay, everybody, let’s get out the caffeine.
Senator McCallum: It says every five years. Didn’t the witnesses request three?
Senator LaBoucane-Benson: What we heard is that they were saying maybe five years for the first review and every three after that because of how much work it’s going to be to get it going. However, Senator Sinclair had a concern about that in the languages bill. Do you want to talk about that?
Senator Sinclair: In the languages bill, those that were here will recall that I pointed out that it’s going to take them a while to get things set up. They would normally — they being the department — not issue the proclamation order, which is provided for in 35, until they are ready to go.
So if they’re ready to go in a year from now, the review, as it’s now drafted, would be five years after that.
I don’t have any difficulty, personally. I asked for this change in the languages bill and we got it. It was to report or change the bill to a three-year review on the understanding that it was going to take them a couple of years to set up the languages regime.
Senator LaBoucane-Benson: I move an amendment that would state —
The Chair: We don’t have it.
Senator LaBoucane-Benson: We can’t just drop them.
The Chair: No. Third reading.
Senator LaBoucane-Benson: Third reading. Fair enough.
The Chair: Senator Patterson —
Senator Patterson: It’s the preamble.
The Chair: We will skip over the next one, then.
So we have to do clauses 32 to 35.
Shall clause 32, as amended — sorry. We didn’t do those. We did clause 31.
Shall clauses 32 to 35 carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall the preamble carry?
Hon. Senators: Agreed.
The Chair: You have an amendment, Senator Patterson.
Senator Patterson: I promise this is my last one. Did I say that before?
I will read the amendment:
That Bill C-92 be amended in the preamble, on page 2, by replacing line 4 with the following:
“needs of Indigenous elders, parents, youth, children, per-”.
Colleagues, the preamble — it’s DP-PRE — leaves the parents out and they shouldn’t be left out. They should be considered.
It would add “parents” to the unique circumstances and needs of elders, youth, children, persons with disabilities, women, men, gender diverse persons and two spirit persons. It would follow “Indigenous elders, parents and youth”.
The Chair: Any further discussion?
No further discussion. Are we ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion, in amendment?
Hon. Senators: Agreed.
The Chair: The motion is carried.
Senator Pate: I move:
That Bill C-92 be amended in the preamble, on page 2, by replacing line 32 with the following:
“In relation to Indigenous children and young adults, including post-majority care;”
We heard from a number of witnesses, most particularly former youth in care, about the need for —
The Chair: Any further discussion?
Senator Pate: I want to thank Senator Francis and his staff and my staff for working on that. Thank you.
The Chair: Are we clear? Are we ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Agreed. Motion carried.
Shall the preamble, as amended, carry?
Hon. Senators: Agreed.
The Chair: Thank you, senators.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Thank you, senators. Passed.
And then we have two or more. We’re going to start with DP-1.3c. That was translated. We made some amendments to it. It’s being distributed. Do all members have a copy of the revised amendment? Does everybody have it? Do you wish to read it through or are you ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Then we next move to DP-1.3e, which will be distributed. It’s in relationship to DP-10.7, which was put in limbo, because that’s the one with maltreatment. You wanted to speak to that again.
Senator LaBoucane-Benson: No, I am good. I don’t need to speak to it anymore. I am not sure if you want to withdraw the whole 1.3e amendment. We withdrew the “parent” definition, the “substantive equality” definition. We were left with the definition of “prenatal”. I don’t think we need that definition now.
Senator Patterson: Leave to withdraw the amendment.
Hon. Senators: Agreed.
Senator Patterson: It’s 1.3e.
The Chair: Shall clause 1, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed. Thank you.
We have DP-4-4, which has been translated and will be distributed. Does everybody have it? Are there any further comments?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Shall clause 4, as amended, carry?
Hon. Senators: Agreed.
The Chair: The next one is DC-8.4, which will be distributed.
Senator Sinclair: You asked if clause 4 carries. We all voted “yes” for that. But this actually creates a 5.1. Do we need to move to adopt 5.1?
The angel on my shoulder said it’s okay.
The Chair: Okay. Does everybody have a copy? Are there any further comments or discussion? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall clause 8, as amended, carry?
Hon. Senators: Agreed.
The Chair: Thank you. Motion carried.
Then we go to DP-15.9. Senator Patterson, you’ve been apprised of what is happening here. Because we are creating a new clause 15.1 with this, essentially your amendment should have been placed after clause 15 instead of clause 14. I’ve been advised that you withdraw this and then reintroduce it to place it after clause 15.
Senator Patterson: Thank you, Madam Chair. Yes, may I have leave of the committee to withdraw DP-15.9? And may I move DP-15.1.9 after we approve clause 15?
The Chair: Is leave granted for him to withdraw DP-15.9?
Hon. Senators: Agreed.
The Chair: Thank you, senators.
Shall clause 15 carry?
Hon. Senators: Agreed.
The Chair: Then you move the new —
Senator Patterson: It’s before the committee. That would be 15.1.9. Do you want me to read it again?
The Chair: Yes, since you withdrew the other one, you should probably read it into the record.
Senator Patterson: I move:
That Bill C-92 be amended, on page 9, by adding the following after line 15:
“15.1 If an Indigenous child is at risk of being placed on the basis of or as a result of his or her socio-economic conditions, including poverty or lack of adequate housing or infrastructure, positive measures must be taken to remediate any neglect related to the socio-economic conditions of the child’s parent or care provider.”
The Chair: We had the explanation previously. Are senators ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Senator LaBoucane-Benson: Do you tidy up these amendments grammatically if we miss a word?
The Chair: The law clerks will.
Senator LaBoucane-Benson: The law clerks will.
The Chair: There’s a motion at the end that will deal with that.
Senator LaBoucane-Benson: Thank you.
The Chair: We’re distributing DP-19.1.11, which has been translated. Does everyone have a copy of the amendment? Are we ready for the question?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall the new clause 19.1 carry?
Hon. Senators: Agreed.
The Chair: Thank you.
Now we move to DP-30. The next one has not yet come back from translation, so we can either suspend, deal with it now, or introduce it at third reading.
What is your preference, Senator Patterson?
Senator Patterson: Third reading is much more ponderous. Can we wait rather than do it at third reading?
The Chair: The other thing is that we were to make observations. Perhaps we could spend a few more minutes to discuss observations.
Senator Patterson: Or we could leave that to steering.
Senator Sinclair: Could I suggest that steering work with the senators who wish to contribute to observations and put together an observation, based on the comments made here today?
The Chair: Translation is coming shortly. We could discuss observations now because we don’t have the translated clause. If you would like to give some additional guidance to steering and the analysts, that would be helpful.
Senator Sinclair: Senator Christmas has a statement of observation.
The Chair: Would you like to proceed? Is it in both official languages?
Senator Christmas: No. I will just read it. I’d like to recommend an observation to be appended to the report:
During study on Bill C-92, the committee heard witness testimony regarding the importance of gathering, managing and interpreting statistics relating to those covered by the provisions of this proposed statute.
It was also noted during testimony that Canada once had a First Nations Statistical Institute, (FNSI). Federal funding for this institution was halved in 2012-2013 and finally eliminated in 2013-2014.
The federal government created the First Nations Statistical Institute in 2006 under the provisions of the First Nations Fiscal and Statistical Management Act. Thus, attempting to amend C-92 to reinstate this institution falls outside of the latter Bill’s scope.
It is however noted by the Committee that the federal government should strongly consider amending the First Nations Fiscal and Statistical Management Act at the first opportunity, in order to bring about the reintroduction of this important institution to aid in the efficacy of Bill C-92 by providing the necessary and proper means of managing statistics so critical to ensuring the effectiveness of the Act.
Senator Tannas: I agree. I think we should add that we had two other observations that we wanted to do. That’s equally important to what you’ve suggested, Senator Christmas.
Senator Christmas: Is the other observation the one from Senator Pate regarding the funding principles?
The Chair: Yes. Senator Pate’s observation is regarding fiscal arrangements. Was that the one? We have something drafted by the analysts, in English only. With permission of the committee, they can be distributed.
Is it agreed to do so?
Hon. Senators: Agreed.
The Chair: Thank you. We can do that.
I may have missed this because I am listening to several people at one time. The other issue you may have brought up, Senator Christmas, was to do with the Manitoba issue. Do we want to include that in observations?
Senator Patterson: Madam Chair, I thought Senator McCallum was going to look at that as a possible amendment on third reading. Am I right?
Senator McCallum: Yes.
The Chair: So you don’t want to include anything in the observations.
Senator McCallum: No. I haven’t talked to the chiefs yet.
The Chair: I just didn’t want to miss it.
Senator McCallum: Thank you.
The Chair: I believe it was distributed. We circulated the information from the Southern Chiefs Organization.
Senator Tannas: I meant to raise that. I read that. It does not say it supports the bill. The way I read it, it says that it will support those who choose to opt in, should the bill pass. I thought maybe we had heard that the Southern Chiefs Organization supported the bill.
The Chair: Yes.
Senator Tannas: Did I misunderstand?
The Chair: That was how I understood it as well.
Senator Sinclair: I am not sure who Senator McCallum spoke to, but an observation I would make is based on conversations I had with some of the Southern Chiefs. Some of the Southern Chiefs are opposed to the legislation. Some are in favour of the legislation. As an organization, they’re not taking a position one way or another with regard to the legislation, but they are prepared to support those who want to opt into the legislation. Essentially, they’re not supportive of a bald statement that the legislation should not pass.
The Chair: We have circulated observations from the analysts. I shall read them out:
During its clause-by-clause consideration of Bill C-92, concerns were expressed with respect to clause 4 of the bill, which states that:
For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act.
The committee was concerned that this clause imposes a limit on provinces or territories whose existing legislation exceeds the level of services that are provided for in the bill. The example of Nunavut was of particular concern to the committee. While the departmental officials clarified that where provincial or territorial legislation relating to child and family services is seen as providing a level of service that exceeds Bill C-92’s standards, this would not be considered to conflict or be inconsistent with the bill. The committee believes that this clause should be amended to make this point clear.
In addition, some Indigenous communities have expressed concern that clause 4 means that provincial or territorial legislation prevails in relation to child and family services. While the departmental officials explained that clause 4 only applies where an Indigenous community has not exercised its jurisdiction over child and family services, the committee believes that this clause should be amended to clarify this point.
With respect to coordination agreements discussed in clause 20, the committee emphasizes that the following principles need to be considered in negotiating such an agreement:
(a) the agreement should fulfill the purposes and principle of the Act;
(b) fiscal arrangements referred to in paragraph(2)(c) should provide for adequate funding to cover the actual costs of
(i) child and family services, including core and operational costs and capital funding, and
(ii) the development of Indigenous laws and any supporting institutions and services required to enable the Indigenous governing body to exercise its legislative authority in relation to child and family services;
(c) any provision for funding provided under the agreement should be periodically reviewed and adjusted to account for inflation, demographic changes, changes in the needs of children and families and any unforeseen community emergencies that place higher numbers of children and families in need of child and family services; and
(d) the agreement should reflect any recommendations contained in the report referred to in subsection 31(3) of Bill C-92.
We have received the final amendment, which is being photocopied and will be distributed shortly.
Senator Pate: While we’re waiting for the motion to encourage, could we pass if there are any issues like grammatical errors and that sort of thing to be fixed? I apologize for my unparliamentary reference to that clause earlier.
The Chair: Is there agreement from the committee that the observations read into the record by Senator Christmas, as well as the one from the analysts read by me, be approved as part of the observations? There will, of course, be editorial and those kinds of changes.
Hon. Senators: Agreed.
The Chair: Is it agreed that the Subcommittee on Agenda and Procedure be empowered to approve the final version of the report, taking into consideration today’s discussion and with any necessary editorial, grammatical or translation changes, as required?
Hon. Senators: Agreed.
The Chair: The last amendment is now being distributed. Is there any need for further comment or discussion? Are we ready for the question?
Hon. Senators: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Agreed. Carried.
Shall the new clause 30.1 carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: Motion carried.
Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make technical, numerical and typographical changes and adjustments to the amendments adopted by the committee?
Hon. Senators: Agreed.
The Chair: Motion carried.
Is it agreed that I report this bill, as amended, with observations, to the Senate?
Hon. Senators: Agreed.
Senator Patterson: Tomorrow.
Senator Sinclair: As soon as possible.
The Chair: Is it agreed?
Senator Patterson: As soon as possible.
The Chair: Yes, as soon as possible.
Hon. Senators: Agreed.
The Chair: Motion carried.
Is that it? We’re done. Thank you, senators.
(The committee adjourned.)