THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Thursday, April 11, 2019
The Standing Senate Committee on Aboriginal Peoples met this day at 1 p.m. to study the subject matter of Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families; and, in camera, for the consideration of a consideration of a draft report.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good afternoon. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room, on television or listening via the web. I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional unceded lands of the Algonquin peoples. My name is Lillian Dyck and I am from Saskatchewan. I have the honour and privilege of chairing this committee.
Today, we are continuing our study of Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families. Before we begin, I would invite my fellow senators to introduce themselves, starting on my right.
Senator Coyle: Mary Coyle from Antigonish, Nova Scotia.
Senator McCallum: Mary Jane McCallum, Treaty 10, Manitobaregion.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Pate: Kim Pate, Ontario.
Senator Christmas: Dan Christmas, Membertou First Nation, Nova Scotia.
Senator Lovelace Nicholas: Senator Lovelace Nicholas, New Brunswick.
The Chair: Before we begin, I should let everyone know I may have to leave the chair to go to the chamber once or twice this afternoon. If necessary, the clerk will call an election for the acting chair when I do so. Be alert for that. We’ll do that right now.
Mireille K. Aubé, Clerk of the Committee: Honourable senators, there is quorum. As clerk of the committee, it is my duty to inform you of the unavoidable future absence of the chair and our deputy chair and to preside over the election of an acting chair.
I am ready to receive a motion to that effect. Are there any nominations?
Senator LaBoucane-Benson: I nominate Senator Christmas.
Ms. Aubé: It is moved by the Honourable Senator LaBoucane-Benson that the Honourable Senator Christmas do take the chair of this committee.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chair: Motion carried.
This afternoon I would like to welcome to the committee, from the Anishinaabe Nation in Treaty #3, Grand Chief Ogichidaa Francis Kavanaugh; and from the Nlaka’pamux Nation Tribal Council, Debbie Abbott, Executive Director, and Ardith Walkem, Barrister and Solicitor.
We will begin opening remarks with Grand Chief Kavanaugh, to be followed by Ms. Abbott. The floor is yours.
Ogichidaa Francis Kavanaugh, Grand Chief, Anishinaabe Nation in Treaty #3: Good afternoon. I am here as the grand chief of Treaty #3 to address the standing Senate committee while you consider Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families.
Grand Council is a traditional government of the Anishinaabe Nation in Treaty #3. Our territory includes 28 communities, encompassing 55,000 square miles in northwestern Ontario and southeastern Manitoba, with an approximate population of 25,000. As a functioning traditional government, an integral part of the governance role is our law-making capacity. We continue in our assertion as sovereign people that lawmaking is our inherent right. For us, in our territory, our spiritual laws are sacred, descending from the creator. Because of the source of authority, our laws cannot be broken or altered and must be adhered to the highest degree.
In Treaty #3, we have codified laws, including Manitou Aki Inakonigewin, translated into the great earth law; and the Abinoojii Inakonigewin, our child care law. The process of codifying our traditional laws into written laws must abide by our traditional protocols. Our traditional protocols include ceremony and spiritual sanction, national meetings for guidance from our elders, women, men and youth and the work of our leaders to oversee this comprehensive process. Through this, we have united to endorse our traditional law, Abinoojii Inakonigewin, that was ratified on October 6, 2005; however, its origin ascends prior to contact.
Our communities and our child care agencies in Treaty #3 have adopted our law, Abinoojii Inakonigewin, and practise our traditional law. In collaboration with our child care agencies, while respecting the unique needs of every community and the autonomy of our individual leaders, our law has been implemented at the community level through the development and implementation of distinct community codes.
Our child care agencies are vital to the actualization of Abinoojii Inakonigewin and are supportive of the implementation plan. We have three child care agencies, Anishinaabe Abinoojii Family Services, Weechi-it-te-win Family Services and Sagkeeng Child and Family Services in Manitoba, that have been providing a bi-cultural service delivery model dating back to the 1980s. These agencies have had great success with service delivery such that they have been called upon to mentor and assist in the creation and development of other Indigenous-led service delivery across Canada.
As part of successful adoption of Abinoojii Inakonigewin, the cooperation of both the provinces of Ontario and Manitoba have been instrumental in Treaty #3 providing support and resourcing the work that has been undertaken. There is a bilateral table with Ontario with a signed relationship agreement and discussions have been initiated with Manitoba and the southern chiefs’ organization to ensure proper political protocols are followed. The bill directly undermines the respectful work that we have undertaken with the provinces for the past decade.
The federal government has not assisted us with the development and implementation of Abinoojii Inakonigewin nor has it followed the proper political protocols. This is a fundamental issue that we have had since the successful implementation of our child-care law. Now the federal government is proposing the imposition of unilateral legislation that will bind and restrict our traditional laws. This is completely unacceptable. Instead of being a partner at the table, the federal government has put forth legislation that will fundamentally limit our laws, institutions and practices.
Grand Council Treaty #3 puts forth the position that this proposed legislation is a pan-Aboriginal approach that does not consider the unique jurisdiction and recognize the governance/law-making capacity of Grand Council Treaty #3. This proposed legislation is paramount to political interference of the federal government and we take this matter very seriously.
Our children are sacred gifts from the creator. We have undertaken solemn commitments for the responsibility of our child care. This bill is a direct extension and continued historical oppression by the federal government on our people and intervention is necessary. I implore the Senate to consider the ramifications that this legislation imposes on Treaty #3 and other Indigenous nations across Canada. For our territory, the consequences have come at a cost that we simply cannot afford: political degradation by the federal government at the expense of the well-being of our children and families.
The provisions outlined in Bill C-92 contravene Abinoojii Inakonigewin by undermining the most fundamental aspects of our law in this regard. These Anishinaabe laws are a direct result of comprehensive work through extensive consultations and engagement processes that were undertaken.
In its present form, Bill C-92 does not support the Grand Council as a nation in the work that continues with respect to the implementation and transition of Abinoojii Inakonigewin within our territory. Thank you. Meegwetch.
Debbie Abbott, Executive Director, Nlaka’pamux Nation Tribal Council: Good afternoon. I would like to make a couple of introductory comments and then turn it over to Ardith.
One of the things we see with Bill C-92 is the fact that our inherent rights are limited rather than being recognized. As we get into the topic, you can see there is a real need to address the failure to recognize the rights of Indigenous children.
Despite being an act to protect children, Bill C-92 fails to recognize the rights of children in several meaningful ways. Placing a child with their sibling is a lower level of priority and subject to a determination of the best interests of the child. There is no mention of how children and youth will have their voices heard and reflected in decisions which impact them.
I’ll leave it at that. I would like to turn it over to Ardith and she can talk more about the operation.
Ardith Walkem, Barrister and Solicitor, Nlaka’pamux Nation Tribal Council: I asked that this picture be distributed. It might not make a lot of sense, but our elders have always asked that we have reference to this picture when we speak about children. This is a picture of a slide that happened on the Fraser River in 1913, when one of the railways was putting track through the canyon. As a result of that slide, the river was entirely blocked. It was entirely blocked right when the largest salmon run in B.C. was returning to that river. There were literally millions and millions of fish stuck and they couldn’t get through, and this was in the midst of our territory. Our people took baskets and blankets and that run survived because we carried them over by hand.
When our elders talk to us about child welfare, they say remember this story, because our kids right now are stuck, and we need to find the baskets, to find the blankets, to carry them over. If we cannot carry them over, then they won’t make it.
We looked at this bill from two respects. One more closely accords with the grand chief in terms of an assessment of the inherent rights and clear limitations of the bill. When we look at that with this story, we need to clear the river. We need to allow the river to flow again.
Some of the comments that I want to talk to you about today have to do with when we’re in that position right now and we’re trying to carry the kids over in baskets and blankets. One of the things that the ShchEma-mee.tkt (Our Children) Project of the Nlaka’pamux Nation has done is intervene in child welfare matters provincially just because that’s where our kids are. We have a different plan but we’re stuck where we are.
I want to highlight some clear deficiencies of the legislation. I’m sure that you will hear this a lot. The best interest test right now makes cultural consideration subject to other definitions. This won’t improve anything. This is the practice across the country right now. In fact, the practice in B.C. actually sets a higher standard because in B.C. right now the standard is that you cannot consider the best interests of the child without reference to their culture.
We can’t carry those children over if we don’t acknowledge that they’re Indigenous children and we don’t protect that. One of the things that we’re very conscious of, looking forward and into the future, is if we don’t acknowledge and keep children connected to their culture, the impact of the child-welfare system isn’t protection. In fact, if we can’t keep kids protected, we’re going to see them later in the criminal justice system. The number of kids who come through disconnected and then have their own children taken is high. The price is too high to not acknowledge that we need to define best interests according to the laws of the nation, and to include connection to that nation.
I know that a large part of this bill was also built upon the Indian child welfare act in the States. We left one thing on the table that could be very powerful. The ICWA calls for active efforts to keep a child connected. In practice, in Canada, what happens is we can have all the things we want in an act. If we’re not saying to the court, if we’re not saying to the child welfare officials these aren’t easy things, you need to take active efforts, not passive efforts. I think that is something that we need to look at incorporating.
When I told you about this Hell’s Gate, one of the things I wanted to mention is that there were so many fish and they were dying, and we know that our neighbours on the river, the Stó:lō, Stswecem’c and the Stellat’en, other nations, also rely on those fish. When it was desperate, in desperate hours, they came with their own baskets and blankets.
Why do I mention this? We’re very troubled by the strongest ties provision within this legislation. Strongest ties, in section 24, says that when there is a conflict of law between two Indigenous laws that one of them will trump, that it sets a mechanism for one of them.
This is precisely against the operation of our law. Our law tells us clearly that some of the highest forms of diplomacy come from recognition of joint kinship. We have mechanisms within our law that say to us, you can’t give it up and say somebody wins, because a child isn’t half-and-half or half and quarter. A child is fully this and fully this. We need to turn to those mechanisms within Indigenous laws to recognize that part of identity. If we impose the strongest ties test we’re going to harm the child because the impact will be to deny them their cultural heritage, to deny them access to people who could help them and who could make a real difference.
I want to point out some of the areas as well. I know we have unique legislation where we’re coming from. The legislation in B.C. right now was recently amended to say that as soon as a child becomes involved in the child welfare system — it could be as easy as a report and investigation — that there is a right to involve the Indigenous community. Our practice has seen clearly that the earlier you involve a community the more difference you have. The earlier the community is involved, the more likely it is that you can prevent a child from being taken and that you can protect that child under your own laws.
The provisions in the act leave this decision to the social work team. It doesn’t say when it must be and it is also subject to a determination of best interests. If you’re dealing with a social work team who, for example, has some sort of bias against community involvement that might never come. We’re not going to get those children through. We’re not going to be able to wrap our ways around them if we leave that sit. I think that’s something that is very important.
Debbie also mentioned the whole rights of the children. It’s an act about children that doesn’t in fact list the rights of the children. For example, it doesn’t clarify in the detail needed what are the rights of children to have their voice heard and how that will happen. That’s really important.
When we work with kids who have been dislocated, quite often we find them when they are teenagers and they are very clear that what they care about is they wanted to have a voice to be connected to us. They wanted to know where we were. They wanted to be able to reach out to us as communities.
I also want to point out — and I don’t think this can be underestimated — it’s not a placement preference to place children together. Sometimes when people go through a system, it might be your brother or sister who is the only tie that you have left. This act puts that as a lesser priority. That shouldn’t be the case. The act also doesn’t protect them — and this is a very big problem — when children age out of care and their siblings are still in care. What sometimes happens is they lose touch with their siblings because there is no right of continued connection within the system. If we want to talk about an act that respects the rights of children, we need to look at those things and how to truly give voice to children within the process, including how to give voice to their desire to be connected.
In closing, one of the things that is very powerful is that we need to specifically contemplate the protective nature of culture. Too often when we’re looking at this, we say we’re going to protect children, but we look at a limited set of things. We don’t truly look at the role culture plays in protecting a child over their lifetime. Part of that has to be saying an assessment when we take a kid into care and we leave them in care. There is a price to care. We shouldn’t just assume that protection is protection and we close the book. What we have seen with the Sixties Scoop and the class action arising from that, is that we suffer tremendous loss when we cut off kids from culture. If we’re going to legislate, we need to acknowledge that. We can’t just think we’re legislating about protection and saying because we say it’s protection, it results in protection. If we cut off kids from culture, we know that it doesn’t. We know we’re legislating endangerment and thus we specifically focus on that. Thank you.
The Chair: Thank you. The floor is now open to questions from senators.
Senator McCallum: Thank you for your presentations. It’s good to hear people who have their own laws codified, their own system in place. I want to acknowledge you for that.
When you look at both your lawmaking power and your codified laws, how is the province able to come in and determine for you what your right to your children are?
Mr. Kavanaugh: We passed that law in 2005, but we just signed off on a relationship agreement with the province. We’re in our second year of a five-year implementation plan in which we hope to displace the ministry’s directives with respect to child welfare. We’re in the second year of that process right now.
Senator McCallum: With Manitoba, with Sagkeeng, where are you with that?
Mr. Kavanaugh: We’re working together. They’re part of it.
Senator McCallum: With the province?
Mr. Kavanaugh: Yes. We are working with the province as well. We have overlapping jurisdictions, Ontario and Manitoba.
Senator McCallum: I don’t really understand the power or the depth and range of this bill. I thought that if you had your own codified laws and your Constitution through your traditional protocols, this law would allow you to displace the province within a year. Isn’t that how it works? That’s how I understood it.
Mr. Kavanaugh: That’s the process. I would expect this bill would put in some kind of provision recognizing and acknowledging our law.
Senator McCallum: Thank you.
Senator LaBoucane-Benson: Thank you very much for your presentations today. Ms. Walkem, so much of what you were talking about follows my table of amendments, I thought you were kind of checking them off as you went. I want to talk to you about the best interests of the child and the primary consideration. When I was talking with the staff and the minister, they said that this whole “best interests of the child” needs to be seen as an entire framework and that the list isn’t supposed to be one on top of the other. Further, they said that for the primary consideration, all the factors have to be considered together as a bundle. I find this troubling because if I was to write it, I would say the primary consideration has to be a balance between the safety, security of the child and culture, family and community connection. Those would be the primary considerations. The factors would then add breadth and enhance that. I thought that the primary consideration should be shared.
They assured me this “best interest of the child” is a minimum standard. Any nation can exert a higher standard. You say B.C.’s is better. Then you could adopt the B.C. version as opposed this one. This was the minimum. I’m just relaying all the information of this discussion. If you were going to rewrite this, how would you rewrite the best interest of the child section?
Ms. Walkem: I wouldn’t subvert the cultural connection. I would include it in the list and it would be it is in the best interest to remain connected to their Indigenous cultures, community and territory? And give very clear direction that it’s to be interpreted and defined according to their own Indigenous people’s values and traditions.
“Best interests” is one of those areas that we think is neutral. Once you have said it’s about child protection or best interests, it’s kind of case closed; common sense. We don’t need to talk about it. I think we really need to unpack what the common sense analysis is. When we look at the kids who were the subject of the sixties, seventies and eighties, the ongoing “Scoop,” we see the impact on them. They are the result of the operation of the best interest of the child test.
Senator LaBoucane-Benson: Exactly.
Ms. Walkem: If we don’t change what that test means, we will duplicate it. I think a tremendous weakness of the bill is that it subjects culture to that. It doesn’t specifically say it’s in the best interest of the child to be cared for in the ways of their own people.
Senator LaBoucane-Benson: Right.
Ms. Walkem: Our people are different. That will be different. If we want to look at the best interest, we know what the results are because all the kids who were removed were removed under a provision exactly like that.
Senator LaBoucane-Benson: Exactly.
Ms. Walkem: If culture is secondary, we’re going to keep doing the same thing. We have an opportunity to do better. I think that we should.
Senator LaBoucane-Benson: Is it fair to say you think that colonial assumptions can be mobilized to maintain the status quo if we leave the primary consideration as is?
Ms. Walkem: Absolutely. The best interests of the child test, for example, could have to do with thinking it’s in the best interests of a child to grow up in a home with their own bedroom and have a certain level of social interaction.
When I was growing up, we lived in a one bedroom apartment. There were eight or nine of us there. I was the youngest. I didn’t even get the couch. I was on the floor beside the couch. This has to do with poverty, but it wasn’t unusual in our family. On a best interest analysis, someone might have said, “Put this kid away from her mom, her nieces and her nephews. Put her in a different house.” We have to look at “best interests” is going to be defined by social work teams. It will be defined by courts and it will be defined without reference to who we are as a people. I think who we are as a people needs to be there. The child’s right to be connected needs to be at the forefront or it will be defeated every time. We know how the system operates. We have a chance to try to disrupt it.
Senator LaBoucane-Benson: Grand chief, I am just wondering, if there was an opt-out clause for First Nations, so they could continue doing the work that they were doing with the province, would that satisfy your need for change? If you could choose to opt out and you could continue your work, would that give you some satisfaction?
Mr. Kavanaugh: I think, yes, at the very least, it would satisfy us but we would prefer something more. We want to assert our jurisdiction. We have a relationship agreement with the province that spells out that our jurisdiction is still intact. We would want something more significant in terms of just saying, yes, we recognize you. We want something more substantive.
Senator LaBoucane-Benson: There is a section 4 that does talk about existing agreements with the province being primary. Some people have a problem with that, for sure, but would that actually work for you, because you want those agreements with the province to stay intact once this bill is passed?
Mr. Kavanaugh: Yes.
Senator LaBoucane-Benson: Thank you to all of you for appearing. My question is to you, Ms. Walkem. When Dr. Cindy Blackstock was before us yesterday, I asked her a question and she recommended I ask you as someone who would be better able to answer.
The question was how this bill will intersect with the divorce bill that’s coming before us, Bill C-78. It picks up on the question that Senator LaBoucane-Benson just asked you. I wonder if you could go a bit further? Are there some things we need to be taking into account here that could ensure First Nations, Metis and Inuit children don’t end up the ones losing in terms of any differences or distinctions between the definitions or the provisions of those two acts?
Ms. Walkem: One of the things I can potentially do is shine a light on how muddy the water is. If you want to see one of the examples of where federal legislation attempting to go into areas has not worked, look at the federal matrimonial interests act. Part of that act contained a provision which would allow people who were subject to violence to seek an emergency protection order. The federal government said you should get those, in B.C., at the provincial court level. The federal government can’t compel a court of non-inherent jurisdiction, so in provinces such as B.C. — there is a sort of patchwork across the country — you can’t get a protection order under the act because there is no legislation compelling that.
There is a potential to be a very serious issue because, quite often, matters get referred out of child welfare and into, for example, family legislation in different respects. That is something we have to look at. We have not given a lot of thought to how the different areas of legislation will act together. It might be, for example, that you don’t have an Indigenous child’s rights drawn through and recognized, including the right to continued contact.
To answer the question, it is very muddy water and we have not contemplated how all of the jurisdictions will interact. It may well be, as it happened with the matrimonial property legislation, that you just have parts of it falling through. We’re not saying it is falling through; we are just not looking at it.
Senator Pate: Is that something you would be in a position to assist us with?
Ms. Walkem: It might be something that we would look at further. In general, there is a huge access-to-justice issue. Most often, parents and children who come into child welfare matters, if they are represented at all — poverty is a huge issue — they are coming through legal-aid systems. There has also been no particular consideration for how different jurisdictions will operate. For example, there is a provision in case the province has a higher standard. You can say that the standard won’t apply and we want to keep our higher standard. How will we equip legal-aid lawyers to know about that argument and to make it? There is a huge access issue. How will we free up court time to have it done?
There is a whole bunch of repercussions that have to do with the legislation, with access-to-justice issues that we need to think about because the population impacted is made up of children who won’t have their own representation or their parents will be in poverty and very vulnerable. They are being thrown into a new arena. We need to think about how that will impact them.
Senator Pate: Thank you.
Senator Christmas: Thank you very much for being with us. Grand chief, if I may ask you a question. You had mentioned in your remarks that the Anishinaabe Nation had adopted its own traditional protocols in 2005. For the benefit of us in the committee who don’t know very much about your protocols, can you describe some of the key features of your traditional protocol?
Mr. Kavanaugh: Maybe I will start with our lawmaking capacity. Like I say in my comments, our laws are Creator-sanctioned. That’s how we do our traditional lawmaking. Our governance practices and systems remain intact in our territory. We have not changed. Our way of conducting business and our affairs prior to contact was using our institutions of ceremonies, sweat lodges, shake tents, and other lodges like metawin lodges and sun dances. Those are whole. Even our treaty itself, the Treaty of 1873, is whole.
It took three sittings for our leaders of the day to agree to sign our treaty, because that’s what they did. They went into ceremony. They sought traditional guidance through ceremony, until the message from their ceremony said it was okay to sign. That’s when they signed. That’s what we still follow.
I will describe a process. We have our resource law in our territory as well to displace MNRF in forest management, natural resources and stuff like that. We did pass that in 1997. We have used that. We successfully renegotiated our resource revenue-sharing with the province. Our area gets 45 per cent revenues from the forestry industry and 40 per cent from the mining industry. That’s the result of that resource law.
It took a great deal of consultation to get the resource law. It was probably the biggest consultation effort ever in the Treaty #3 territory where we consulted everyone in our territory. Then it was finally done; it took us four years, consulting and putting together the law itself. Once we had the draft AIP, which is Agreement in Principle, our people said: Yes, we have a law but we are only human beings. We cannot pretend that we know everything. Grand chief, we want you to take that resource law through a traditional validation process, meaning to take it to ceremony.
What I did, I sat down with some knowledge keepers, and we went through the document. Some of it is legalese. How will we formulate questions in ceremony? We did that. After we did that, we were instructed from the ceremony that we had to erect lodges for a four-day ceremony. On the evening of the four-day ceremony, we had to use a shake tent. It had to be someone who was very high in the Meta win society and we had to get the final validation scanned by the spiritual side, by the spirits that we ask to look at these things.
When that was done, the spirits gave it back to me. Now, it’s your turn to get the chiefs to ratify that law. The next day we had our chief’s assembly started, and the first order of business on the agenda was to ratify that law.
That’s how we make laws. That’s how our treaty was achieved. We still practise the same way. There was a comment here that legislation has higher standards in the province or this and that. We believe our standards are higher because they are Creator-sanctioned and, as human beings, we cannot change them. That’s what we abide by, and that’s how we continue to practise in our territory. Meegwetch.
Senator Christmas: Grand chief, you also mentioned that you are now in the second year of a five-year agreement with the Province of Ontario. Can you tell us a bit more about that agreement? What are the key understandings between the Anishinaabe Nation and the province?
Mr. Kavanaugh: This is a comparative analysis of our First Nations customary care codes — Abinoojii Inakonigenewin— and Bill C-92.
Basically, our customary codes we’re developing through ceremony, cultural protocols and processes, traditional knowledge-based, community-driven consultation processes and best practices, and also implementing change from the impacts of our intergenerational trauma.
The process is about displacing what Ontario dictates. We are replacing them with ours. We are already doing that. We have been doing that for many years now. We have three mandated agencies in our territory, and then we have communities that have devolved from the mother agencies. They operate through a service agreement. Then they use our child care law and adapt it to their local conditions and their communities.
We are all unique. There are 28 communities in my territory. We are all unique. Even our dialects are different. We say things differently. Some of our ceremonies are the same, but they go according to who goes to that ceremony.
I briefly described the resource law, how we are displacing MNRF in that field. That’s what we are doing.
I want to add that I was involved in child welfare for many years. In one initiative, I was working on child welfare with the senior management director of Indian Affairs’ regional office in Toronto. When we started talking about customary care and traditional child-rearing, he would say that he had to toe the Indian Affairs’ line: “I’m sorry; I can’t go there. Directives and policies don’t let me go there.”
We used to have two-day meetings. I said to him one day, “Okay, we’re having a two-day meeting. Next month, we are having another two-day session. How about we have a sweat lodge so I can introduce you to who we are, and this and that, and you will get a better feel for who we are and where we come from when we talk about our traditional ways and this and that.” He agreed, and within a short period of time he started to advocate on our behalf.
Then one day he called me. He said, “Francis, I’ve been removed from the file.” He shared with me the internal memo from his director, the regional director: “David, we are removing you from the file. You are getting too close to the Indians.” That’s what it said.
That’s the mentality we have to deal with when it comes to implementing change to legislation that has been oppressing us for years and years and years. That has to change. Meegwetch.
Senator Christmas: Thank you, grand chief.
Senator Coyle: Thank you very much to our guests. Again, you are opening our eyes and really helping us as we do our best to respond to the legislation that is before us. I have questions for each group, if that’s all right.
As I understand, Grand Chief Kavanaugh, you are now in an advanced stage with this file of child and family welfare in your territory. You have a good agreement with the Ontario government, not quite yet with the Manitoba government, if I understood you correctly, but you are in that process.
You’ve recognized not only that your territory is distinct and should not be considered in a pan-Indigenous framework. Even within your territory, the communities themselves, you’ve found ways to accommodate the distinctiveness and uniqueness of the various communities in your territory.
You’ve created a model that perhaps is one we can learn from for this legislation, which, of course, is for all of Canada. What you’ve done sounds like something very interesting. Am I on the right track so far, reflecting what you said?
Mr. Kavanaugh: Yes.
Senator Coyle: You mentioned a concern about the imposition of this legislation, which would bind and restrict your work. If this were to come in, in its present form, you are worried that all the progress that you have made will be possibly undone and you wouldn’t be able to advance in the ways that you still want to advance, as I understand it.
Could you tell us exactly what you think the implications will be? What are the main implications of, as you said, political degradation? What would the implications be to the children in your area? Do you see a way of amending this legislation such that it would better accommodate and basically unleash you — not restrict you but unleash you to continue on the track you are on, which is to now go forward with Manitoba, and continual improvement of what you are doing in Ontario as well?
Mr. Kavanaugh: First of all, there has to be dialogue on Bill C-92. There have to be good-faith discussions with Minister O’Regan. There is also no mention that they will continue funding the existing agencies. That is also a concern.
Senator Coyle: Has there been dialogue?
Mr. Kavanaugh: Dialogue, yes. We’re talking, but to what extent? I’m not certain where it is going, but we are there. Also, that any recommendations to reform have to be guided by our principles, values and traditional systems. Children need to know their identity. They need to have a sense of belonging to their family, community and, most importantly, to their language, culture and traditions. That, to me, is what is being threatened.
Within the bill there should be a section in there acknowledging and recognizing that, yes, Treaty #3 has its own laws and its own ways of practising child welfare.
We have a law in the nation, and we have three child-welfare agencies in our territory. We have over three decades of experience in that regard. That’s why we are saying we don’t want to be lumped into a one-size-fits-all model. In fact, we may be suggesting they should take a close look at Treaty #3 and see how we do child welfare.
Senator Coyle: I appreciate that. Thank you for further explaining that. We hope that dialogue is fruitful.
Mr. Kavanaugh: Yes.
Senator Coyle: A question now for Ms. Abbott and Ms. Walkem. Thank you. I loved this metaphor. This story is really helpful. What are those blankets and baskets that will be needed? You’ve expressed that. You’ve talked about culture as protection.
Some of the ways you have articulated things is something I have not heard expressed in the way you have, but it makes very good sense. We talk a lot about the importance of attachment for children. Usually we think about attachment to mother. I am getting, from various people who have spoken about their cultures, that attachment to culture in various traditions is like an attachment to mother that we talk about in other situations. Thank you for bringing this to our attention.
I am generally interested in everything you are saying, but when you talked about your concerns about the strongest-ties test — that provision in this bill — and that being against your laws and how you and they operated in this case to save the salmon, on both sides of the river, as you said. Could you speak more about that and what you think should be done with the bill to accommodate your laws?
Ms. Walkem: There are two things. I want to make clear that when we are talking about changes to the bill, we are talking about what we see as an emergent situation of trying to get the children through.
It is not that we disagree with what the grand chief said about the need to recognize laws. We are just saying if we are going to do this, we need to look at it.
I can give an example without naming names. One of the strongest cases we ever dealt with involved a family with three nations; so there was someone from our nation, and then the children were also Métis and of another nation. There were three nations.
When we were called upon to deal with this, our law tells us that we have to honour the mother. It doesn’t mean that we say that the kids are of her nation, it is that we know the kids are of her nation, her nations and of our nation. When we exercised that, we made space for her, and our resolution brought together all of us.
Our kinship laws are ways of resolving disputes, historically would have been, for example, in many cases, intermarriage. If we were having a fight about something, we would arrange for marriages; so a high form of diplomacy between nations. The result would be a forced peace. This is not a forced peace; this is a forced surrender. Someone wins, someone loses.
I tried to run this through my own kids — I don’t know if you have seen this. This is a picture of my youngest daughter. I wanted to point out that the photographer who took this is the grand chief’s niece. We were happy to do this because this Anishinaabe woman created all of our imagery.
This picture shows all her auntie hands that are touching her. I tried to assess this. I’m from a different nation. My spouse is from a coastal nation, and we live off our territory. I ran it through, and I thought, “Oh, my gosh,” because her family visits more, and they can speak [Indigenous language spoken], a bit of that language. She’s taught them dancing. I thought, “My gosh, I would lose the strongest ties.”
That should not be the case. How impoverished would our child be if Debbie didn’t get to be part of its larger aunties group, but this will happen. The strongest-ties test comes immediately from the Indian Childware Act in the States where their law says that you can belong to one tribe. They recognize jurisdiction that way.
That’s not what we do. We have to make space for recognition of the ways that our laws operate. The Indigenous laws that I am aware of don’t say that somebody wins, somebody loses, half this, half that. They say all of this, all of that, and wealthier for it.
If we allow this to stand — and we cut out, for example, one nation in planning for a child — what will happen is that then the child won’t be placed within that nation, won’t have those aunties, those uncles that community that is contributing. They will become impoverished. It is exactly against my understanding of our laws.
Some nations may have a different law. That’s not the laws that I’m aware of. One of the other areas that has caused me to think about is the imposition of the Charter. You would think, “That’s nice, let’s respect.” If you come from a matrilineal society, you are being eliminated. One of the examples from our nation, when we are dealing with very severe issues, such as child sexual abuse, when we decide and want to solve that, that’s a women’s issue. Our men have a role. They have to guard the door, which is to say they guard our ability to make the decision. They don’t let other people in. When we’ve made the decision, they help carry it out. We say that that’s something that we decide because we are the toughest. In our law, our men are gentle; they make the peace. If we need to make a firm “That’s it, there’s the line,” that’s us. The women. If we subjected that to a Charter analysis, we would lose. We have the capacity to hurt things.
If governments pass legislation, they can send it through an analysis, through section 1 of the Charter, which allows for societal balancing.
We are proposing, in all cases, to subject Indigenous laws to a Charter analysis without allowing us it say, for example, that those laws reference what our society tells us are important values. That’s another area we have maybe not thought of — how we will impact those societies that are matrilineal or patrilineal but that are just different, that protect rights differently. It is not that we don’t protect them. We just think of them differently.
Senator Coyle: Thank you very much.
Senator Lovelace Nicholas: My question is along the lines of the province. Don’t be insulted if I ask this question, but are you a provincial or federal jurisdiction, grand chief?
Mr. Kavanaugh: Right now we are operating under the dictates of the province, but we are operating under our law. There have been other communities that have devolved from the mother agencies, and they used that law, but they adapted to their community needs and the customs in that community.
Senator Lovelace Nicholas: Would you say it’s a good relationship? Who controls the funding?
Mr. Kavanaugh: It’s a good relationship. Right now it is the province that controls the funding. We are in the five-year implementation phase, and hopefully it’s going to be us who deals with the Treasury Board to finance our agencies.
Senator Lovelace Nicholas: Thank you.
Senator LaBoucane-Benson: If this law goes into effect on June 21, and you give the province notice on June 22, my understanding is you could be in control of those funds within one year. Your law would be elevated to the one that works, and the province will be out of the picture. Is that your understanding?
Mr. Kavanaugh: That’s the five-year implementation plan I’m talking about. We’re only in the second year. That’s the outcome we are looking for is that we displace Ontario in that area.
With respect to Bill C-92, I would expect there will be an exemption to existing laws and stuff like that. If there is conflict between Bill C-92 and our law, inconsistencies, I would hope you would consider our law as being in force.
Senator LaBoucane-Benson: That’s my understanding. It’s supposed to be your law that is the one that is in force.
Mr. Kavanaugh: Yes.
Senator LaBoucane-Benson: I thought you could speed up that five-year process to a one-year process with this law — potentially.
Mr. Kavanaugh: Potentially, yes.
Senator LaBoucane-Benson: Thank you.
The Chair: Thank you very much. We are at the end of our time. On behalf of the committee, I would like to thank our presenters this afternoon.
Senator Dan Christmas (Acting Chair) in the Chair.
The Acting Chair: The committee is pleased to welcome our second panel. With us this afternoon are Grand Chief Constant Awashish, Chair of the Atikamekw Nation Council; and Mary Ellen Turpel-Lafond, Director, Residential School History and Dialogue Centre, Professor of Law, University of British Columbia, via teleconference.
We will begin with opening remarks from Grand Chief Awashish, followed by Ms. Turpel-Lafond. The floor is yours, grand chief.
Constant Awashish, Grand Chief, Chair of the Atikamekw Nation Council, Conseil de la Nation Atikamekw: Thank you, Mr. Chair.
I’ll be speaking in French. I always forget that I can also speak in French.
First, I will say a few words in my language to honour my people. Thank you.
[Grand Chief Awashish spoke in his Indigenous language.]
I’d like to introduce myself to the distinguished members of the committee. My name is Constant Awashish. I’m the Grand Chief of the Atikamekw Nation and the chair of the Atikamekw Nation Council. The council is an entity that provides various services to the Atikamekw population. Some of the issues that concern us today include child protection and anything related to families. I also have another role, which I’ll talk about later on in my presentation. I’m the Honorary Colonel of the 62nd Field Artillery Regiment of Shawinigan.
For those who don’t know, on January 29, 2018, the Atikamekw Nation Council signed an agreement with the Government of Quebec concerning autonomy on child protection matters. In light of our experience, I’m here today to speak to you and share our observations regarding Bill C-92.
I want to thank the committee for giving me the opportunity to speak to you. Given the very short time that I had to prepare, I wrote a text. I don’t like reading texts, but I’ll do so today, to make sure that I get the message across and to avoid saying things that aren’t true. I’m somewhat familiar with the issue, as a result of my role. However, more qualified experts could address the issue with you.
On February 26, 2019, Bill C-92 was tabled in the House of Commons. Its preamble affirms the need to eliminate the over-representation of Indigenous children in child and family services. The objective is commendable, but questions remain regarding how to achieve it. One possibility is to enable an Indigenous governing body to exercise its legislative authority in relation to child and family services. Various aspects of the bill seem good. However, we’re concerned about other aspects.
Given the amount of time that I have to speak to you today, I’ve chosen to focus on the legislative authority of an Indigenous governing body in relation to child and family services, and the coordination agreement. We’ll soon be sending you a brief containing our comprehensive positions on other topics that I can’t discuss today, given the time allotted to me. These topics include the definition of the family, the notion of the best interests of the child, the concept of significant measures and the collection of information.
In terms of the legislative authority of an Indigenous group and the exercise of that authority through coordination agreements, at first glance, the federal legislation certainly shows the most innovation in this area. It recognizes the right of the Indigenous governing body to exercise its legislative authority in relation to child and family services. However, the exercise of this legislative authority requires a coordination agreement. This raises questions regarding the scope of the legislative authority. Is the authority otherwise limited, given the minimum standards set out by the legislation, to the study and provision of the Charter of Rights and Freedoms? For example, could the Indigenous governing body establish, within its legislation, grounds to carry out an intervention with the child and family that are different from the grounds set out in the provincial legislation? Conversely, could the Indigenous governing body choose to not get involved in a situation even though the provincial legislation requires an intervention? How autonomous is the Indigenous governing body in exercising its legislative authority?
The Indigenous governing body may also ask the provincial minister and government to enter into a coordination agreement on the exercise of the governing body’s authority. This means that the coordination agreement is tripartite and that it requires the participation of federal and provincial Indigenous authorities. Although the Indigenous governing body is free to adopt any legislation it sees fit, subject to the minimum standards and provisions of the Charter of Rights and Freedoms, the concrete exercise of this authority would require a coordination agreement. An Indigenous group can therefore exercise its legislative authority in this specific context. Nevertheless, this undermines a strong statement in the preamble of the legislation to the effect that Parliament affirms the right to self-determination of Indigenous peoples, including the inherent right of self-government, which includes jurisdiction in relation to child and family services.
The Atikamekw Nation Council finds that the need to enter into a coordination agreement to exercise its right to govern in matters of child and family services greatly undermines its right to self-determination. The legislation states that the dispute resolution mechanism may be used to promote entering into an agreement if reasonable efforts have been made to enter into the agreement within one year of the date of the request to the provincial minister and government.
This raises some questions. How will the concept of reasonable effort be interpreted? What dispute resolution process will be set out in the regulations? Will the process be effective? Will the process make it possible to enter into coordination agreements within a reasonable time frame?
The Atikamekw Nation Council would like to point out that it took over ten years of work to enter into an agreement with the Government of Quebec under the specific section for the province of Quebec, which is subsection 37(5) of the Youth Protection Act. This bipartite agreement makes it possible for the ANC to apply, within its defined territory, a special youth protection program that must be compatible with the general principles and the children’s rights set out in the Quebec legislation, and the jurisdiction of the Commission des droits de la personne et des droits de la jeunesse. Although subsection 37(5) came into force on June 21, 2001, the agreement wasn’t signed until January 29, 2018. The ANC is the first and only Indigenous organization to have entered into a youth protection agreement with the Government of Quebec. Based on this concrete experience, the Atikamekw Nation Council seriously doubts that a coordination agreement involving the federal government, provincial government and Indigenous governing body can be established within a reasonable time frame. The right to self-determination and the inherent right of self-government affirmed in the federal legislation under consideration become quite relative concepts in these circumstances.
The list of topics on which a coordination agreement may be reached isn’t exhaustive. All kinds of useful topics can be added to the exercise of Indigenous legislative authority. For example, agreements may be required to ensure that Indigenous organizations use resources from the provincial network, such as foster families and rehabilitation centres.
In light of the Atikamekw experience that I mentioned earlier concerning the agreement with the Government of Quebec, we seriously doubt that the coordination agreements needed for the exercise of the Indigenous body’s legislative authority can be reached quickly. In short, the legislation under consideration is the result of the government’s clear effort to improve the child and family services provided to Indigenous people and to reduce the number of children removed from their family environment and placed in non-Indigenous environments. The legislation recognizes the importance of the children’s cultural, linguistic and spiritual heritage, and the importance of the children’s relationships with the people who take care of them. The draft minimum standards that must be met also seem very good in this context.
The legislation gives Indigenous people the opportunity to establish their own child and family services legislation. This will lead to significant progress in the development of solutions for the over-representation of Indigenous people in these services. However, the concrete exercise of this authority may be greatly undermined by the tripartite coordination agreements that must be reached. The dispute resolution mechanism could certainly be used to promote entering into this type of agreement, unless the mechanism establishes that a decision can be made by an arbitrator or another authority and that the decision is final and can’t be appealed.
There’s no guarantee that this type of agreement can be reached within a reasonable time frame. Thank you for listening to me.
The Acting Chair: Thank you, grand chief.
Mary Ellen Turpel-Lafond, Director, Residential School History and Dialogue Centre, Professor of Law, University of British Columbia, as an individual: Good afternoon. First of all, I want to acknowledge that I’m speaking to you today from Victoria, so this is the Songhees and Esquimalt territory I’m sitting in today. I want to make that acknowledgment.
I’m very pleased to be called before the committee. I am Cree person originally from the Prairies. I am now a professor and director of the Residential School History Dialogue Centre at UBC and a professor at the Peter A. Allard School of Law. I also practise law and, in that capacity, represent a number of First Nations, and have provided advice to the Assembly of First Nations; the B.C. Assembly of First Nations Leadership Council, which is the BCAFN; the First Nations Summit; the Union of BC Indian Chiefs; the Saskatoon Tribal Council and other First Nations with respect to child welfare.
I also have a history as a First Nations judge from Saskatchewan, and served a time there and retired from that position. I served as B.C.’s first independent child advocate and representative for children and youth. I have a varied background and experience that I bring to the matter. That frames somewhat the comments I want to make by way of opening today.
I want to make a few high-level comments. I look forward to answering any questions or following up on any questions you may have.
The first thing I want to note is that Bill C-92 really seeks to shift Canada’s national law and policy toward new arrangements with First Nations. I’m going to focus mostly on the First Nations track, if you like. Metis and Inuit, I have some experience in that area. I chaired a national reference group which was comprised of First Nations, Inuit and Metis. I’m going to speak mostly about First Nations track, which is what I’m mostly familiar with in terms of my expertise.
This law will shift Canada’s national law in the direction of recognizing and affirming some pre-existing rights of peoples, but also shifting the practice of child welfare to address underlying issues that keep coming up in provincial and territorial systems that create a barrier, but also create the problem that has been called by the Truth and Reconciliation Commission the legacy of these kinds of failed policies of imposing provincial practices on First Nations peoples and communities without their consent and without properly considering their rights, culture, identity, and the importance of continuity of their culture and language and identity through generations.
I want to note that Bill C-92, in my respectful view, is one step. No piece of legislation is a panacea to change everything happening in the child welfare system. This is a very profound shift that is needed at many levels in Canada. The national legislation is critically important, as the TRC said, but it requires us to change a number of systems and how they work.
As someone who has and still has many cases involving families, communities and children, shifting these systems is difficult. The objective is a laudable one. It’s very important that we have multiple focus strategies to do this work.
Tackling the circumstances that cause First Nations children and families to be overly caught within the child welfare system requires taking the right steps. I am of the view that for the most part, this bill will be a contribution in a positive direction to make those shifts.
There are many areas for discussion and improvement. I think that the Bill C-92 has some extremely promising aspects that we need to look at. However, given the devastating impact of the current system on First Nations children, families and communities, this work is going to take time. It is a crisis, it requires coherent strategies. It has required for some time clear and unequivocal leadership at the national level.
We have to remember that for more than 30 years, Canada’s position was that it was a mere passive funder of child welfare. It had no obligation, legal or otherwise. All services were provided to First Nations by provinces, and those provincial laws were incorporated through the Indian Act and applied to First Nations, so coming out of that system is a major step forward to have national legislation that places it on a very different footing.
The human rights dimensions have been studied and considered. I know you had a chance to hear from other experts and advocates like Dr. Cindy Blackstock. The ongoing human rights issues are very significant, need to be and will be continued. This will not end careful examination of those issues.
I do want to say, though, that how this legislation will work in practice, it is a high-level legislation that does two things. It opens the door to affirm First Nations, Metis and Inuit jurisdiction and lawmaking. It also sets in place some new principles and priorities that are very important to address some of the key issues in child welfare.
Because it is legislation akin to human rights legislation, I am of the view that section 12 of the Interpretation Act will mean that this legislation will be given a large and liberal interpretation with a remedial purpose. It is very important to state that, because the purpose of the legislation in clause 8 is two-fold, and that is to recognize or affirm that jurisdiction and to address the issues around the critically national issues for children and families and to support children and families that may be currently in the system.
I have heard from some of the other witnesses. The recommendation that one of the purposes should also include implementation of UNDRIP, as was included in Bill C-91. I would lend my voice of support to that. I think it is critical to keep this in a very strong human rights context, and that is very consistent with the Truth and Reconciliation Commission.
I think it’s important to do that, because as it is interpretive, the legislation does get passed in some form and receives Royal Assent. It needs to be interpreted in that large, liberal and generous way.
It also is, in my respectful view, legislation that I would call recognition legislation; it recognizes rights. There are some procedural rights and substantive rights, but these are critically important. I know I have limited time, but I can take one or two of these and explain from a practical status quo viewpoint how it will fundamentally present change in the system at a provincial level in the provinces I’m an expert in, which are British Columbia, Saskatchewan and Manitoba.
In terms of the implementation of this bill going forward, so many significant shifts are going to be required. First, meaningful collaboration with provinces, if First Nations wish to pursue that, and coordination. Coordination in child welfare is critical because child safety requires a seamless net, and being able to take command of a child in a crisis situation and know what the roles and responsibilities are and that it is coordinated and focused on the child requires a type of national cooperation that needs to be an incentive in this legislation. I welcome that component in section 20 of this bill.
This is very important practically. One of the challenges we have in Canada is never knowing in these high-risk cases who is taking command of the child and appropriately providing for their safety. If there are too many gaps, it can be problematic.
I like the concept of coordination. I like the concept of the affirmation of rights. I like the concept of putting into a national law the priority on prevention at various levels and other priorities around recognizing culture, reframing the best interests of the child with an Indigenous lens and frame. These are all extremely positive steps. I think they are very consistent with what the Truth and Reconciliation Commission proposed in its first five calls to action, particularly consistent with addressing some of those core problems.
I feel that Bill C-92 represents a potential advance in Canada in terms of addressing the issues of child welfare and over-representation of First Nations children, families and supporting First Nations jurisdiction.
I will answer questions. I have some very specific comments about areas where it could be improved. I heard the earlier presentation by British Columbia lawyer Ardith Walkem, whom I highly respect. I think she made some very good points. A lot of points that are being made deal with how First Nations laws and customs will be treated and respected in comparison to some of the provisions of this bill.
I have some views about that. I have some views about how that could also potentially be strengthened and clarified. I don’t see it as a fatal issue with respect to the language in the bill.
The final comment I’m going to make by way of opening, though, is to just come back to the reality of practice. During my 10 years as a child advocate, I worked extensively with First Nations in British Columbia and with First Nations children and families. I had a small team, 17,000 cases over 10 years. I have a lot of familiarity with how the system works in practice today. British Columbia is considered to be one of the more progressive child welfare systems. However, these issues were almost impossible to advance on many occasions. If a First Nations child or family wished to bring forward a very different perspective on family unity and prevention, the barrier to do that today is very high. A First Nations family or community must prove they have rights to a standard of proof. Basically, the current system is based on the denial of those rights. It is a very expensive and time-consuming process to prove those rights. You have to file a notice of constitutional question. It is not necessarily heard. It is a very complex, lengthy process, that requires a level that is extremely high.
This bill is very important because it means that all of that procedural barrier would be gone, and there is a new space to talk about what the values, rules and principles are that apply in actual cases. It also — and I will say this by way of conclusion to my opening comments — prevents, I think, a kind of trauma that happens in the real system when you deal with families in crisis. I’ve had this a lot with newborns being removed. The families are so traumatized. To make an argument in court to try and keep Mom and baby together, to keep a family intact and recognize their First Nations values, culture, practices, kinship relations, when they are not recognized and they have to be argued and asserted so firmly to gain recognition — and we have a kind of leading case in B.C. involving a Huu-ay-aht child. We were able to keep that child connected to her family, but the Superior Court in B.C. had to rely on its parens patriae jurisdiction, which is the old school “I am the better parent” jurisdiction as opposed to making a decision based on recognizing the rights of the Huu-ay-aht to work with their families and protect a child.
I think this bill shifts us to make it easier for us to do that in practice in the future. The path is there to do it. The fact that the bill can be re-evaluated every five years is really significant because, like all legislation, things out of the starting gates don’t always work the way you think they will work. You need to come back, continually improve and invest in it and see if it is working.
As the old saying goes: The perfect is the enemy of the good. When it comes to legislation, we have to get things right and make a shift. We are not going to get things perfect. We have to make sure that shift is a shift in the right direction.
As I say, I will answer your questions. I feel that many aspects of this bill present a shift in the right direction. Thank you.
The Chair: Thank you to our presenters. The floor is now open to questions from senators.
Senator LaBoucane-Benson: My first question is for the Grand Chief. I want to make sure that I clearly understand.
One of your concerns is with dispute resolution. If I understood correctly, your concern is that the province could just drag out dispute resolution on and on and we would never get to a place where the First Nations law would prevail. Am I correct in understanding that?
Mr. Awashish: Yes. It is one of our concerns based on our experience. Like I mentioned earlier, the Province of Quebec ruling with article 37.5 allows a First Nation to take care of their own family system and child services. In our experience, it took 17 years to get to an agreement. We had 17 years to prove that we are getting it right, that our children are not falling between the cracks and that our system was working as it should. That’s one of our concerns.
Senator LaBoucane-Benson: Thank you very much. Ms. Turpel-Lafond, I am really grateful for your description of the bill and where the focus and the shift is, but I’m very confused. We’ve had three Grand Chiefs and a vice-chief with very opposing perspectives of how this bill is going to roll out.
Last night we had a panel with a Grand Chief who said that this could be catastrophic. If this bill is passed — he wants us to walk away from it completely. On the other hand, we had a vice-chief from Saskatchewan saying he is so excited about the bill. They have their laws together and they will go for it. They will occupy the field.
I am confused. How are there two such different legal opinions about this bill? When we speak with the minister’s staff, that’s not their intention, but I’m very concerned about this other legal opinion. It is confusing for us. Which one is true? How do we see this in a way that we can move forward with amendments?
Ms. Turpel-Lafond: First of all, I respect very much the right of chiefs and rights and title holders to make their opinions heard. The deep, profound suspicion and mistreatment that First Nations families have experienced — and Métis and Inuit families — is such that you are dealing with 140 years of colonialism in your committee today. I would be very shocked if you are ever going to have a bill that involves Indigenous people cheerleading for this because there is suspicion.
However, just taking the point that was raised before this question, which was about dispute resolution in the provinces, even on that, what the bill says is that a First Nation can occupy the field and pass its law. If a First Nation, such as Haida, Tsimshian, Cree, what have you, want to pass their own bill or have their law recognized, they can do that.
Section 18 says that. They can invite the province to the table if they want to. If the province does not participate over a year, the First Nations law prevails over all provincial and federal law. There is no other piece of legislation today, or ever prepared in the history of Parliament, that has had that degree of affirmation of the legislative authority of a First Nation as a government. These are not Indian bands under the Indian act. These are as First Nations governments. This is a very significant step. It has not been done before. It has been long overdue. But how will the legislation unfold? In my view, there are First Nations — I work with the Nisga’a First Nation, and others — that are ready to go. They’ve been held back for years. There are others at different steps.
The important point that you have to keep in mind as senators is that there are deep colonial problems with Canada’s policies. This is attempting to break from that. I don’t see that there is anything in this bill that is going to cause this devastation. However, it is not, overnight, going to be easy. As I said, no single bill changes a system. Even if we had a perfect bill — because I had real cases in courts, many cases — we would deal with a culture of social work or a provincial context where they are so enmeshed in their practices that it is hard to shift. The tools in this bill are tools that have never been offered and created. They may not be perfect, they may need to develop over time, but they have never been offered. This is why these need to be understood as remedial and human rights.
I think this bill should be given a fair shake. I respect you will hear from people that don’t want it. They don’t have to pass their law if it is they don’t want it. No one is forcing anyone to pass any law. If they don’t want to do it, they don’t have to do it. However, there are many people, many First Nations, who have their laws and need that space. Today, in Canada, the provincial law comes through section 88 of the Indian Act and has been imposed on First Nations. This a big shift.
Senator LaBoucane-Benson: Thank you so much.
Senator Coyle: Thank you very much to both of our guests. That really helped a lot, Ms. Turpel-Lafond. Grand Chief Awashish, thank you very much for giving us the outline of your environment, in particular, your concerns around the importance of coordination, which we heard again when we are dealing with children, children’s safety and security of being. We want to make sure that there is a seamless net there for them. Thank you for reinforcing that with us.
Of course, Ms. Turpel-Lafond, we know, as legislators, that there is no perfect law. Perfection can be the enemy of the good. This is something we face every day in our work here. However, we can’t be complacent. I don’t think you are encouraging us to be so.
You have alluded to some practical suggestions that you have for enhancements, perhaps amendments to this legislation, that would not veer it off of, as you describe it, this laudable shifting of intent and, hopefully, practice.
Could you share with us some of your main suggestions for changes to improve this bill? Thank you.
Ms. Turpel-Lafond: Yes. I would make four recommendations. I appreciate there is only so much you can do, again, in light of the role of the committee and the authority of government, and other things. I’ve listened to the other witnesses and reviewed Hansard, so I will not repeat what others have said. I think that the funding principle in the preamble, while it is valuable, should not say “acknowledge the call” but “responds to the call.” I heard what the deputy said in his presentation. I thought he made a very important point, namely, that there is a funding obligation. I would like to see that funding principle put in the body of the bill — not a formula, but a principle in the body of a bill — which I think would give us more scope to work it out practically.
Regarding the second area, I mentioned the UNDRIP reference in the purposes section. I think you’ve heard about that as well. That would track what’s in Bill C-91. I don’t know why it wasn’t consistent, but it should have been. I think it must have been an oversight.
An issue I’m hearing from chiefs, from experts and others, is on the best interests of the child. Because the best interests of the child has often been used and weaponized against First Nations to impose these values and judgments on them, the attempt in this bill to reframe “best interests” is very important. I think there is good content to begin that process. I would like to see the best interests section have perhaps a new section 9.4 that says that “the application of best interests of the Indigenous child should be interpreted in a way that is consistent with the laws passed by Indigenous governing bodies.”
For instance, as Ms. Walkem said earlier, if you have a child from two nations, what about the laws. We have to make sure Indigenous practices are not erased. Overall, I think it is in the bill, but making it more explicit would not at this point be harmful.
The final issue is symbolic more than anything. It’s about rebuilding trust. I think would be very valuable, at least in the preamble, and in the recognition of substantive equality, to recognize Jordan’s Principle, which was passed by the House of Commons as a resolution.
It has been important. I appreciate that bills don’t usually name people unless there is a very specific person, but because Jordan’s Principle has been a part of our response to substantive inequality and it is so meaningful for First Nations, I would like to see it referenced. Again, it goes to that purposeful, large liberal — I identified some specific and I think small, reasonable changes to consider. I know the concerns that First Nations have brought forward about funding will be major issues and we have a lot of work to do. I would like to see that put on a good footing. I also know that funding for First Nations child welfare has increased fourfold since the Human Rights Tribunal decision. I know it is going in the right direction. We want to keep it going there.
Finally, I listened to Mr. Page’s presentation on outcomes. I’m very committed to outcomes. I would like to see that funding process have it. Using British Columbia as an example, I would like us to have a plan to reduce the number of children in care. We fund it and promote family unity. I am all for outcomes. I don’t think it has to be in the legislation, but I think we should encourage it. These are areas where, in your evaluation, if you find opportunities to strengthen it, I encourage you to do that. However, the child welfare field will be working on all of these issues, no matter what. We like to be more successful, but we will keep focused on these issues.
Senator Coyle: Thank you very much.
Senator McCallum: Thank you both for your presentations and for taking the time to come and share your experience.
I want to go back to the provinces. I am concerned about the provincial relationship that First Nations in Manitoba don’t have with the province. It’s the same thing in Saskatchewan, I understand. In Ontario, I don’t know if that’s true.
If you cannot get the provinces to the table, then what option do they have? I would also like to understand how the province ever got jurisdiction over First Nations. I am First Nations, so I’m going there.
When you look at the British North America Act and that it is designated a federal responsibility. When Indian Affairs announced its plan to shift its responsibilities for Indian child welfare over to the provinces, they wanted to shift it to the provinces, and they were told, no, this is an area of federal jurisdiction.
They went back and said, “Can we delegate that responsibility,” and they said, “No, it is federal jurisdiction under 91.24 of the BNA Act. It cannot be delegated.” They ended up contracting.
Is that how you see the history? Okay. If you can clarify that with me? I want to understand why the province has such a tight hold on Indigenous people. When, as a senator, I tried to work with the province, based on problems that First Nations had brought to me in Manitoba. The province never responded.
To this day, we have been unable to resolve services that go up north, and that’s medevacs, the water bombers. It’s different areas. That’s where my concern is, if you can speak to that?
Ms. Turpel-Lafond: Yes, I would be happy to address it, because you’ve raised such a fundamental issue. I want to explain how it happened, which is, the Indian Act, of course, which we completely opposed but has been imposed for 140 years — when section 88 was added in the 1950s, then the provincial laws of general application became federal laws. All the Manitoba child welfare laws — not just The Child and Family Services Act but the Adoption Act and everything, it became equivalent to federal law.
The Indian Act was like a door through which provincial laws were imposed on First Nations people. Same for Saskatchewan. Same for Manitoba. This is the profound injustice of this colonial act. And I applaud the fact that this Bill C-92 at no point says the expression “Indian Act,” because we should make no effort to rehabilitate that Indian Act. It is totally unacceptable.
In order to switch that practice — and trust me, First Nations have challenged this in court. It’s not like we’ve never challenged it. We have challenged it and lost every case. We are subject to provincial law without our consent. Hence we’ve had this horrible ethnocide of children being removed, just like residential schools.
The bill stops that. It shuts the door on section 88, because a First Nation can pass its own law and, yes, there is a year to coordinate, if you want to, but at the end of that, your law is paramount over the provincial law and paramount over the Indian Act. It seems complex, but if you work in the field you can see how very significant this shift is.
I know some organizations like the Assembly of Manitoba Chiefs are disappointed in this. They wanted their own act. I respect that. If this act is passed, the Assembly of First Nations, the individual First Nations members can say to the AMC, “Go ahead and pass your law,” and that will be the law under section 18 of this act. If the province chooses not to come to the table, then it shows they are not committed to child safety.
In fact, for one of my clients, the Saskatoon Tribal Council, just the tabling of this bill at first reading led to them having an agreement with the Province of Saskatchewan to talk about jurisdiction and to have a hard conversation that had never been had.
I feel that the bill brings shifts. Legally, we must understand this. This is not trying to impose another colonial regime. This is opening up and repairing a very problematic past. First Nations have to decide if they want their laws to apply. I think we also have the problem of Indian Act issues and we are in a transition with the resurgence of our nations. This pushes us toward that resurgence.
It is a unique bill. This is a unique moment. It is a transformational moment to go in that direction. Of course, there are good questions by many people. Section 88 of the Indian Act would be finished for child welfare with this bill, and so it should be, as the Truth and Reconciliation Commission recommended.
Senator McCallum: If the province refuses to play ball and they have all the personal health information of those children, they hold everything with them and you need them for the First Nations to transition into their own organization, could they say no or would this have to go to court?
Ms. Turpel-Lafond: How I view it is, again, as someone who is in the system, that practices like — if I were representing the matriarch in Manitoba, like the Nehiyaw, Cree matriarch of a family and their child was in the system, and the province said, “We will not tell you anything about that child,” and we had Bill C-92, I don’t feel I would have any difficulty arguing that we had full access to information about that child. Bill C-92 gives us not one — it gives us about 10 new tools that we never had.
First of all, the matriarch would have standing in court, which they don’t now have. The matriarch would be able to make representations, which would be like the Cree system. They would be not only heard but their culture and role would have to be respected. Under the Manitoba child welfare legislation, there is nothing like that. These tools come into effect.
The federal government doesn’t reach into the provincial legislature and change its law. The federal government with Bill C-92 creates tools for people who want to stand up for their children. If the matriarch stepped forward and said, “My granddaughter is in this case and I want a standing,” I would say, “Thank you very much, Senator McCallum. I am going to represent you. You will not only have standing; you will make representations. I have 10 new tools to get you to have your culture, your views, your commitment to that child recognized in this court.”
If I stood before a judge in the Superior Court in Manitoba and said, “This province will not give this matriarch access to the information about her very own child for which she is responsible under this federal law,” I would see that would be fatal and Manitoba would have no choice but to work together with First Nations in a new way.
Now, I hope they do that voluntarily. I think shifts will happen. There is no question, like everything, when things change, there are people who oppose it. By giving new tools to First Nations people, to have their values respected, to have their dignity and integrity respected — people like myself who are skilled judges, lawyers, whatever, it makes it so much easier. I don’t have to start at ground zero. I can say, “This is the matriarch. This is our system. This is the role. Now please let us apply our system.”
I can’t see that we would not be successful. I know not everything will be easy, but I think we will change fundamentally how this is done. The level of respect for that matriarch, those Cree laws — as an example I am using Cree — will be shifted.
In fact, I suspect, the system will probably welcome that and say, “Finally, we’ve been waiting to hear from matriarchs or others who want to do this work.”
This opens it up in a way that today that matriarch has no standing. The Government of Manitoba can say to her, “We can’t tell you anything because it is private.”
Under the new act, they can say, “Actually, no, it is not private, because it’s my child, my community, my nation and, in fact, there is a priority on placement with this child with our family. I am the matriarch of this family. I have a right to be heard. My lawyer is here today to make sure I get everything I need to make this decision and that you do not block it.”
I think it is a very significant shift. Without a doubt, there will be places where provinces don’t buy in, but most provinces in Canada have had to admit, after intensive examination, that their child welfare systems have not worked. I think many of those provinces will embrace the shift. I hope they do it voluntarily and enthusiastically. We have to do work.
In Manitoba, as an example, we need to work with that province and say, “This is how we will do things differently,” and have a more respectful dialogue.
Senator McCallum: Okay, thank you.
Senator Pate: Thank you professor for all of your incredible work in this area, and the recommendations you have made.
You probably heard my question of some of the other witnesses around the interplay between Bill C-78 that is before us, proposed changes to the Divorce Act, and how you would see that interplaying with this bill.
As well, I would like to provide another opportunity for you to make any other recommendations. Particularly I’m interested in your agreement with Kevin Page about looking at outcome measures and what you would recommend perhaps that we look at.
Ms. Turpel-Lafond: Yes, the issues around other areas, I’m just going to start there. On the funding issue, when you evaluate section 20 of the bill, you know the coordinating agreements are important. In particular, section 20(c) which refers to fiscal arrangements, I think we could do a better job saying something like fiscal arrangements to provide funding that is predictable, stable, sustainable, needs-based and secures positive, long-term outcomes for children, youth and families, and probably supports the effective capacity of First Nations to work in child welfare.
I would like to see that outcomes concept captured in those agreements. I think sub (c) could be a minor amendment to shift that so that, you can’t force coordination agreements, but at least everyone sits down and says that you will track and monitor outcomes. We will make sure children in care get reduced. That’s an area that also provides some comfort to First Nations, that they are not given jurisdiction affirmed, but no resources. That’s a very significant area. I am just going to stop there to make sure you don’t have a further question about that.
Senator Pate: That’s great. Thank you.
Ms. Turpel-Lafond: Good. Can you remind me what your earlier question was?
Senator Pate: The interplay between this bill and Bill C-78.
Ms. Turpel-Lafond: The Divorce Act changes on the best interests of the child. I like the Divorce Act proposal, because it took into account the identity for Aboriginal children, and the importance of it. The odd thing about the Divorce Act changes was we weren’t consulted and engaged adequately in it. It came out of the blue, but at the same time it’s not a bad thing. I’m not saying it’s a bad thing to have it there. It has been important for some time.
In terms of interplay, this bill is focused on child and family services, but First Nations lawmaking on families also provide for what happens when families break down. Not everyone is going to have a marriage and divorce under provincial/federal law. There is strong jurisprudence recognizing custom adoption, and other aspects of customary family law practices.
What I like about this bill is those are affirmed, and there is a human rights dynamic. The Divorce Act has that provision, but you don’t know what to do with it. What I like about Bill C-92 is it has a human rights footing. When you have human rights, you have to think about, yes, there are limitations, but it’s with a purpose. You focus more on child safety and also their connection and identity.
The issue I like about the Divorce Act is getting away from thinking about children as a possession. “I have custody, I own the child.” More inter-parental responsibilities, and the commitment that everyone has to have to sustain and protect the identity of the First Nations or Indigenous child, and that has to be recognized in our system. The Divorce Act change I think is positive. But it’s just like this one little piece hanging over there.
This legislation gives us another whole kind of technicolour view, because on best interests we see a child is actually connected to a family, a territory, a distinct identity. It isn’t a pan-Indian thing. You have a tribal identity and your right is to be connected to that. If you’re Mi’kmaq, if you’re Cree, if you’re Heiltsuk or Haida, it’s not the velvet painting on the wall, it’s one size fits all. It really has a cultural piece that reflects more the right of the child. I think that’s good.
I think these two would probably be interpreted together, but again, First Nations litigation on divorce is very limited, but children have a right to be connected to their culture and identity. That doesn’t mean all children will be placed in a certain placement, but we have to preserve that, because one of the impacts of colonialism is that First Nations identity has been so devalued that our law says nothing. When we see it percolate up in the Divorce Act, it’s very modest, but I don’t think it’s a bad thing.
Senator Pate: Would you suggest that we make some observations or do anything in the preamble that acknowledges the interplay of these two and talks about perhaps the primacy of Bill C-92 as an interpretation tool for the Divorce Act?
Ms. Turpel-Lafond: Bill C-92 is valuable for a whole suite of things. The languages legislation itself being proposed on Bill C-91, some of the principles in here about the continuity of providing that to children and creating that, some of these principles would be valuable there.
You know how statutory interpretation works; one statute is more remedial, it’s a human rights thing, another one is another purpose. I think that we would be drawing upon concepts here, but this is why I made the argument about UNDRIP, that is for this reason. I view UNDRIP as being an incredibly progressive, interpretive instrument for Canada. It’s the minimum standards for the survival and dignity. If we more explicitly reference UNDRIP in Bill C-92 that helps. If we would have done it in the Divorce Act, it helps. It doesn’t — I don’t view UNDRIP as a big scary thing that is going to cause all harm. I think there has been a lot of fear mongering about UNDRIP. UNDRIP though, because of the human rights lens, if we strengthen that in Bill C-92, I don’t think we’re going to lose anything because we’ll have that ability to grow over time, and understand that rights are balanced, and respected, but particularly vulnerable people, for First Nations people, women, children, elders, need to have a particular kind of protection and support that has been absent in these colonial laws. I don’t think you can be doing anything wrong by cross-referencing this in the preamble, or even saying something like this bill should inform the treatment of Indigenous children and families, in everything. I think there is so much value here, but it’s a lot to study in a short period of time because there are multiple shifts. Fundamentally, we have to shift from this very imposed colonial hostile history, to a more human rights respecting approach.
Senator Pate: Thank you very much.
Senator Christmas: Thank you. I have a few questions. I’ll try to narrow it down to one. Ms. Turpel-Lafond, you may have heard the previous panel speak a little bit, actually quite a bit. Grand Chief Kavanaugh spoke quite a bit about how the traditional protocols on child care of the Anishinaabe Nation may be lost because of Bill C-92. In your opening remarks, you had commented that if you had time, you would discuss how First Nations laws and how First Nations customs could be strengthened by this bill. Could you take some time to elaborate on how traditional protocols like the Anishinaabe Nation, how they would be treated by Bill C-92? How do you see those laws being affected?
Ms. Turpel-Lafond: Yes, and I think the thing I’m trying to say is I have talked about the best interest of the child, you could make it clearer so there is more comfort for people that best interest will be complied consistent with the First Nations laws, customs and traditions. I would urge you to do that. I think it is there already. If I had to stand up tomorrow and represent, whether it’s Mi’kmaq, Anishinaabe, Nehiyaw or Haida, I think I could probably find that space and that respect there. You can never err on the side of making it clearer because we are doing something more important and clearer, and we’re against this huge colonial history.
When I look at the tools in the bill, where the culture and the laws come in, you know, section 10 factors about the customs and traditions of their people, section 10(3)(f).
That gives me an ability to say, if you’re Nisga’a and you have a house system, if and you’re Mi’kmaq and you have a clan system, or you have a matriarch system if you’re Cree, you can tell the Canadian justice system not only do you have to recognize it, but you have to stand down and allow these laws to come in.
We’re in a new area here. This is something that most of the senators like yourself have worked your whole life for. We want to make sure we open that door well.
I think that door is opened by this bill. The proof in the pudding is in the tasting. If this bill gets passed, we have to make sure we have the support to have those customs, laws and traditions recognized. They have gone so underground because of the Indian Act. Now with the resurgence of our law-making and our identity and the celebration with our children and grandchildren, the world is a very different place. We’re in good hands with these young people. I have very feisty children myself, who hold me to account. They are saying, “Why aren’t our laws applying?” We have to remember this resurgence and celebration of our laws, culture, language and identity will translate on the ground. It will be unstoppable. It’s a fact that it exists.
This law gives it recognition, and we don’t have to go cap in hand to a court and say, “Would you please, based on tonnes of oral evidence, recognize we have rights?” We are going to say, “We recognize we have rights. This is how our rights apply.” Yes, we have conflicts, but we also have the ability to have dispute resolution on our own laws and enforce our laws.
This is a very interesting bill. I understand the reluctance and concern of chiefs, I respect it fully. For someone who has worked in the system, these shifts like clause 10 and clause 9 on substantive quality, even things like you can’t remove a child for poverty under clause 11, why is that important? For Cree people, or Nehiyaw people, we believe you remove the offending person; you don’t remove the child. That’s the law. You don’t go into a house and take the child.
You’ll see that Cross Lake and other First Nations have been trying to do this, but they can’t get recognized under the provincial child welfare system.
There is an example of a law. We want to remove the problematic person, keep the family intact. That will get due recognition in Canadian law, because it’s our order and our way of doing things.
We will have to make it explicit and explain it.. I think that there are multiple examples in this bill of where things will be so much easier than they were before. As I said at the outset, no single law changes the world. It has to take people changing it.
Senator Christmas: Thank you, professor.
Senator LaBoucane-Benson: We have been talking with people about the possibility of changing it from a five-year review to a three-year review because this is going to be so revolutionary that it’s going to probably need to be tweaked. Also, maybe putting something in there that the House has to report to the Senate after two years on how implementation is going, giving us a chance to maybe launch an inquiry if it’s not going well and then getting ahead of that three-year review so that we cannot be in the position we’re in right now: The election is coming; you have to pass this. There is no time to really sit and think about it. Our feet are to the fire. So to change that time frame so that perhaps in year three, we are contemplating what changes need to be made. What do you think about that?
Ms. Turpel-Lafond: I think that’s a great idea. The first few times you do things, they are hard, and then they become more routine. It might be given the enormous pressure that you’re under for the time of your multiple bills that you have before you and the nature of the moment we’re in. You might want to say it’s reviewed every five years, but the first will be a report at year three that can be subject to thorough study at the House and the Senate and then come back. Thereafter, it could be five years. Then you need progress.
I would even suggest to you, you could recommend a provision that you receive an annual report on progress on implementation. You could identify other tools. I think like everything, someone has to be responsible to evaluate it. You need to know, as senators, how many laws have been passed. How are they working? What are the thorny issues? We have to think of this as a pathway. You don’t want to wait too long.
If you feel pressured today, I do not see any harm in shortening that for the first period.
Senator LaBoucane-Benson: Thank you.
The Chair: Thank you. We are out of time. On behalf of committee members, I would like to thank our presenters today, Grand Chief Awashish, Chair of the Atikamekw Nation Council; and Mary Ellen Turpel-Lafond, Professor of Law from University of British Columbia. Thank you very much.
(The committee continued in camera.)