Honourable senators, I rise to speak to you on Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families.
While I have been named the critic of this bill and will point out areas that I think should be considered for amendment, I want to begin by saying that, in principle, I agree with the intent of this significant bill.
In reviewing the bill, I was impressed with a legal opinion on Bill C-92 which was developed by Mary Ellen Turpel-Lafond for the Assembly of First Nations. She’s a former representative for children and youth for British Columbia and a well-respected Aboriginal rights lawyer. She said that Bill C-92 will shift child welfare by affirming the space for First Nations laws and policies and practices. First Nations, she said, will be free to determine if they wish to occupy this jurisdiction for children and families, and if they do so, the rules and policies that apply to their children and families in Canada will no longer be the provincial legislation and rules exclusively, and recognition of First Nations laws, practices and a fully developed system for children and families will emerge and develop in that space over time.
This is an appealing and laudable goal.
Bill C-92, as Ms. Turpel-Lafond also noted, takes a further step in First Nations jurisdiction by providing that First Nation the option to request a coordination agreement with the federal or provincial government. After the expected reasonable efforts, and perhaps the exercise of a dispute resolution mechanism that’s in place, when there is no agreement, the laws of the First Nation will take precedence over provincial or federal laws after 12 months. This is unprecedented in federal legislation, she noted.
In this sense, Bill C-92 is providing a pathway to change with First Nations in the lead, if they so choose. The provision in the bill to allow a review in five years will be an important opportunity to see how that option actually works out and whether the appropriate regulatory, policy and funding frameworks will have been put in place to achieve the lofty goals as set out in the preamble.
There will also be a strong onus on First Nations who wish to exercise their right to govern respecting the well-being of their children to be prepared for the challenge — the operational challenges of governance, including building capacity, organizational structures, and systems.
We all know that there are serious problems with Indigenous child welfare in this country. Last Thursday, Senator LaBoucane-Benson gave a moving speech on the reasons why we need this bill. She talked about Canada’s residential schools and discriminatory colonial policies that resulted in many children being separated from their Indigenous families and assimilated by force, thus losing their sense of belonging and their connection to their roots.
The senator spoke eloquently about the disruptive and painful effect that this had on children and their futures, and gave us hope that this bill could help to change the devastating picture of isolation, hopelessness, powerlessness, despair and shame of their Indigenous identity caused by the failed social policies of the federal and provincial governments over many generations.
Last week, the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls was released. It has further revealed how serious deficiencies in some of our child welfare systems are linked to violence against Indigenous women and girls.
In the words of Katherine Whitecloud, a mother, grandmother and a community leader and knowledge keeper from Wipazoka Wakpa Dakota Nation:
There is a direct correlation between all of those past government policy impacts — residential schools, sixties scoop, child welfare — and other government policies that removed our children from our communities and our families. It is especially the women and the girls who have been directly impacted. They have suffered, and are missing and have been murdered because of their experiences and their parental experiences through all of those policies that I mentioned.
According to Cindy Blackstock, Executive Director of the First Nations Child and Family Caring Society of Canada, between 1989 and 2012, First Nations, Metis and Inuit youth have spent more than 66 million nights in the child welfare system. This is an equivalent of 187,000 years.
Issues with the child welfare system are not only an element of the past, they are ongoing and some of our Indigenous children continue to suffer. Indigenous children remain vastly overrepresented in the child welfare system. This has been pointed out by other speakers, but it deserves to be emphasized. According to Statistics Canada, in 2016, Indigenous youth accounted for approximately 8 per cent of all children aged 0 to 4 in Canada; however, they accounted for more than half, 51.2 per cent, of all foster children in this age group. Today, there are more Indigenous children in the child welfare system than during the height of the residential schools period.
Being removed from their homes, their parents and their families and placed into government care is not the only tragedy for Indigenous children. This removal results in many children losing all ties to their family, culture and community.
Bill C-92 is an important step forward. I support the primary objective of a bill that recognizes and 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.
This bill has the potential to improve how child and family services are provided to Indigenous people, and to reduce the number of children being removed from their families and communities and placed in non-Indigenous environments.
I agree that the bill and the principles that it tries to promote are in the best interests of the child. It is hoped that with the passage of this legislation these principles will be given effect so as to ensure that Indigenous children and families are treated with dignity and that their rights will be upheld.
However, more can and should be done to ensure that this bill is strengthened. I was pleased to support a pre-study of this important bill in the Standing Senate Committee on Aboriginal Peoples so that we could be prepared to receive and, in a timely manner, deal with Bill C-92 when it reached the Senate.
However, from what we heard during the pre-study, concerns were raised about significant gaps in this bill, which remain to be addressed. Our committee was privileged to hear from more than 30 witnesses and received many detailed briefs on Bill C-92. The opinions of these witnesses are important and should be recognized.
In the spirit of working together and ensuring the well-being and health of our Indigenous children, I encourage the government to listen to the concerns raised and accept or make appropriate amendments to this bill.
The first issue that I want to highlight is the absence of funding principles in the bill. Many witnesses pointed out that Bill C-92 contains no guaranteed funding to enable First Nations jurisdiction.
According to the brief submitted by Carrier Sekani Family Services on April 8, 2019:
At present, Bill C-92 contains no substantive provisions relating to, one, the mechanism or, two, level of funding which is to be provided. This is of great concern because, as presently drafted, an Indigenous community could conceivably obtain jurisdiction over child and family services under sections 20 and 21 of the bill, but would be left without the funding necessary to exercise that jurisdiction. While it is true that Bill C-92 contemplates “fiscal arrangements” associated with negotiated coordination agreements, there is no requirement on the federal, provincial or territorial governments to fund child and family services delivered by an Indigenous governing body to its members, or at any particular level.
Many witnesses declared that without funding, Indigenous communities will not be assured of being able to fully exercise jurisdiction. Consequently, their fear was that nothing will change for Indigenous children and families.
A funding commitment needs to be included in the bill. As the Senate pre-study report stated:
This commitment needs to go beyond the reference to funding in the non-binding preamble and the reference to fiscal arrangements that could form part of a coordination agreement.
Colleagues, this is the same issue that we had with Bill C-91, an Act respecting Indigenous languages. That bill was also lacking a mandatory funding commitment. Similar to the bill before us, funding was included as an objective with no secure commitment or plan. We requested that the government include a Royal Recommendation in the bill, ensuring that, instead of being constrained to work only with money that already exists in different funding envelopes, the minister can access new money.
Since we are unable to include a Royal Recommendation in this chamber, the absence of a Royal Recommendation makes it imperative that we include strong principles for funding, as requested by numerous witnesses.
Including principles to guide funding would ensure that funding is long-term, sustainable, predictable, stable, needs-based and consistent with the principle of substantive equality, principles that were called for by the witnesses who appeared before us.
According to Francyne Joe, president of the Native Women’s Association of Canada, who spoke before the committee on April 9, 2019:
Without clear, stable, structured funding required by law, the aims stated in the preamble are lost.
Many communities have long suffered from chronic underfunding. Communities cannot rely on unwritten promises of funding when it comes to caring for children and families. We can only assume that the federal government intends to deal with this in the coordination agreements, but this also is not made clear in the bill, which means no future government representatives would be held or bound to that intention.
This funding cannot be structured like contribution agreements, which would still amount to federal and provincial governments controlling the ways in which Indigenous governing bodies use the money. This is not self-government.
Bill C-92 requires a clear inclusion of funding structures that will directly benefit children, families and the communities in which they reside, whether on or off reserve, urban, rural or remote. Stable funding promotes Indigenous self-government.
The committee heard that there should be an explicit reference to Jordan’s Principle in Bill C-92. Including an explicit reference to this legal principle would affirm a commitment to continuing to serve First Nations children, ensuring that there are no gaps in government services and not permitting jurisdictional disputes to become a barrier to the provision of needed services and supports to children. Furthermore, including an explicit reference would further recognize that First Nations children may need services beyond the normative standard of care to ensure substantive equality.
According to Jennifer Cox, a Nova Scotia Mi’kmaq lawyer with an extensive background in the area of child and family services:
Jordan’s Principle has been a huge relief to our communities and made a big difference in terms of the development of services, the ability to do preventive and placement options. It’s a big deal. It should be mentioned specifically not just referred to.
Including an explicit reference to Jordan’s Principle is in line with the Truth and Reconciliation Commission of Canada’s Call to Action 3:
We call upon all levels of government to fully implement Jordan’s Principle.
Another concern we heard is that there is a very narrow definition of child and family services in the bill. The existing provincial and territorial legislation that governs this issue includes varying and oftentimes vague definitions of child and family welfare services. Having virtually no clear definition of the range of services may result in limitations to the types of services that First Nations may choose to exercise jurisdiction over, and could lead to delays and denials of vital services for Indigenous children and families, as was pointed out by the brief submitted by Carrier Sekani Family Services:
. . . Bill C-92 leaves out guardianship services for children in care, post-majority care and adoption (including custom adoption) ... it is vital to protect the range of services a First Nation may choose to include in their child and family services program. For greater clarity, the exclusion of these services creates increased jurisdictional and funding uncertainty for First Nation wanting to assert laws.
Professor Blackstock, well respected in this field, also pointed out that the definition of child and family services doesn’t include post-majority care, guardianship or adoption, both custom and otherwise. She stated:
How are we to forestall the tragedy of the Sixties Scoop if First Nations don’t have any kind of jurisdiction over adoption? That doesn’t make any sense.
Hearing witnesses repeat the same point makes it clear: The definition of child and family services should be amended and expanded.
According to the brief submitted by Jason LeBlanc, executive director of Tungasuvvingat Inuit:
There are no definitions for: child, parent(s), types of maltreatment that could trigger non-voluntary CFS involvement, post-majority care or other key elements like cultural continuity and substantive equality. Definitions that are presented in this section are all vague and ambiguous. This leaves interpretation of points, the bill and all points between open and subjective to the person (or body) interpreting the bill. This does not ensure safeguards are in place, dilutes the uniqueness of the various Indigenous cultures, more importantly, the current construct of the bill has left Inuit living out of Inuit Nunangat as invisible in the minds of Canadians.
There is no clarity in the Bill as to what courts will interpret these principles and determine if Indigenous legislation is compliant with them. This likely means that any conflicts between Inuit laws and provincial/territorial and federal laws will be resolved in Canadian courts. Courts that are reflective of and built upon western views.
The Assembly of Nova Scotia Mi’kmaq Chiefs identified an important issue with the definition of “care provider.” In their brief they stated:
The definition of care provider as it is currently defined in Bill C-92 could result in allowing non-Indigenous foster parents to become a party to a proceeding pursuant to section 13 which could further delay or complicate matters and we do not believe this is the intention of the definition.
Definitional clarity is important. We need to ensure that the range of services provided and definitions are clear. We need to ensure that there is no jurisdictional and funding uncertainty that results from unclear drafting of this piece of legislation.
On the topic of jurisdiction, some of the witnesses who spoke before the committee expressed their concern that this bill will encroach upon provincial or territorial jurisdiction.
I want to make special mention of the Government of Nunavut in this connection. I know that there certainly has been some criticism of governments at the provincial level in the examination of this bill. The bill’s underlying premise is that First Nations governments should have the right to enact their own laws and basically usurp the provincial laws if reasonable efforts do not lead to a coordination agreement.
Let us not lump Nunavut in with provincial governments. The Government of Nunavut came about as a result of the Nunavut Land Claims Agreement, as spelled out in Article 4 of that constitutionally protected agreement.
Although it is a public government, the Government of Nunavut represents a people 86 per cent of whom are Inuit. The bulk of its M.L.A.s and all of its cabinet ministers and the Minister of Child and Family Services for Nunavut are all Inuit.
There are also no signs that Nunavut Tunngavik, the designated overall Inuit organization in Nunavut is aspiring to take over jurisdiction.
Furthermore, the Government of Nunavut carefully developed a made-in-Nunavut Child and Family Services Act that I believe reflects Nunavut’s unique demography and circumstances.
This is a tough job. It is particularly difficult because of the many negative social and health indicators in Nunavut.
The Government of Nunavut is making serious efforts to train and employ Inuit social workers, but that is a challenge given the extended family connections in our small population. The concern is about protecting the Government of Nunavut’s jurisdiction. Indeed, some provisions in Nunavut’s Child and Family Services Act meet and exceed the minimum standards set out in Bill C-92.
I say “apparently” because, first of all, it is unclear whether this bill establishes minimum standards. If yes, there is an outstanding question regarding what happens in the case where provincial and territorial standards exceed the criteria set out in the bill.
The Honourable Elisapee Sheutiapik, Minister of Family Services and Government House Leader for the Government of Nunavut, who spoke before the committee on April 30, identified a concern that Bill C-92 would undermine the work that has gone into creating carefully crafted Nunavut-specific legislation.
In her testimony before the committee she stated:
. . . when there is any conflict between Nunavut’s Child and Family Services Act and the bill, even if that conflict occurs because territorial provisions meet or exceed what is required in the bill, those provisions will be overwritten by Bill C-92. While the heading of clause 4 of the bill refers to ’minimum standards,’ the language of clause 4 itself, a binding part of the law, does not.
For an example of how problematic this is, consider the use of plan-of-care agreements under Child and Family Services Act. These are collaborative agreements between families and government to ensure the safety and well-being of children. The provisions in these agreements could conflict with Bill C-92’s strict rehousing priority list in subclause 16(1). It could be argued that the collaborative approach of a plan-of-care agreement is as good or better at satisfying the best interests of the child. However, despite meeting or exceeding the minimum standards of Bill C-92, the result would be the rehousing provisions of Bill C-92, overwriting the plan-of-care agreements of the Child and Family Services Act.
I believe that the bill as it is currently drafted could benefit from amendments aimed at addressing the minister’s concerns in order to avoid jurisdictional and constitutional issues arising.
Furthermore, on the question of consultation with provinces, territories and Indigenous groups, some witnesses certainly called into question the adequacy of consultations with provincial and territorial governments and Indigenous groups.
According to the brief submitted to the committee by the Chiefs of Ontario:
The federal government is claiming that Bill C-92 was “co-developed”. We disagree. Bill C-92 was not co‑developed in any legitimate sense of the word.
The initial stage was “engagement sessions” held with various First Nations representatives in summer and fall of 2018. This was a weak or at least routine form of consultation. General input was gathered but Canada made all the final decisions.
The drafting stage, from December 2018 - February 2019, was exclusive, rushed and secretive. Chiefs of Ontario participated in the Legislative Working Group that Canada convened at that time, but we were excluded from any actual drafting. Our representatives had the opportunity to review and comment on one draft, in an extremely short time-frame in January. When we saw the bill introduced on February 28th , we saw that our comments had been mostly ignored.
If any of our First Nation members claimed to have “co‑developed” a document with Canada in this way, surely the Government of Canada would beg to differ.
Words like “co-development” suggest equal partnership and consent. Before using that kind of language, or supporting its use, there should be agreement on the process and its outcome.
It is disappointing that the government seems to be failing to properly work with Indigenous groups and to listen to their representatives. We heard that complaint more than once.
Honourable senators, I’m also disappointed with the fact that this bill was introduced by the current government so late in the session. The House of Commons did not have a lot of time to give this legislation the type of scrutiny and attention it deserves. The Indigenous and Northern Affairs Committee on the other side only had a couple of weeks to discuss this bill.
Our Indigenous children deserve better and this important bill should not have been left until the last minute. However, in the words of Cindy Blackstock:
. . . we are not here to be right. We are here to do right.
Indigenous children should have the same rights, access to services and opportunities as every other Canadian child.
Bill C-92 is an important bill and has a lot of potential. I think we can do more for Indigenous children by amending this bill and making it better. Thank you.