Bill Respecting First Nations, Inuit and Métis Children, Youth and Families

Second Reading

June 10, 2019

Hon. Paula Simons

Honourable senators, I rise today to speak at second reading of Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families.

This is an extremely important bill, and I’m proud to be here this evening discussing such a timely issue.

There can be no doubt that Canada’s child welfare system is broken, most especially when it comes to the issue of Indigenous children, who make up the vast majority of those who are in care or receiving child protection services.

In my home province of Alberta, almost 70 per cent of the kids who are part of the child welfare system are First Nations, Metis or Inuit, even though Indigenous children and teens represent only 10 per cent of Alberta’s total youth population.

The province’s troubled track record in the care of these children has been deeply disturbing, especially when it comes to the deaths of children and youth who were supposed to be receiving protective services.

Between 1999 and 2013, a total of 741 young clients of Alberta’s child welfare system died while in the care or under the watch of the province. The vast majority of those who died were Aboriginal.

That number is shocking for two reasons. First, it represents the snuffing out of 741 young lives that were meant to be in our care.

What makes it worse is that successive Alberta governments covered up those deaths for years and years.

Between 1999 and 2013, only 56 of those 741 deaths were ever reported or recorded publicly. It took a multi-year investigation and legal battle by my former newspaper, the Edmonton Journal, to force the government to admit that the total number of fatalities was actually 741.

Since then, almost 200 more children in care have lost their lives — an average of 22 deaths a year.

Some of those deaths, of course, were unpreventable. Some of those children died of natural causes — everything from childhood leukemia to complications after heart surgery. Others died in what you might call blameless accidents — a car accident, say, where the caregiver was absolutely in no way at fault or responsible.

But far too many of Alberta’s lost children died because of the negligence or, frankly, the malice of their caregivers, whether those caregivers were foster parents, biological parents or family members providing guardianship through what is known as kinship care.

Alberta is the province whose sad child welfare history I know best because I spent decades as a reporter covering this very difficult file, working hard with my colleagues to uncover stories that governments wanted to keep hidden. But I fear there is no province in Canada that has a stellar track record when it comes to the protection and care of Aboriginal children. Our status quo is woefully, fatally broken.

For that reason, I am cautiously — very cautiously — optimistic about the promise of Bill C-92, which holds forth the promise of a new paradigm for the delivery of child welfare services, one that puts agency back into the hands of Indigenous families and communities.

For far too long in this country, Indigenous children have been removed from their homes and communities and placed into care without overmuch regard for their culture and sense of identity. Once, we did it through residential schools. Now, we do it through foster care.

Not everyone would be comfortable with calling the results cultural genocide, but it is surely beyond debate that taking children from their families to be raised in non-Native foster homes and group homes has all too often had the effect of depriving children of the chance to grow up with their traditions, their languages, their spirituality, their pride in their roots and their history.

About 20 years ago, Alberta began to grant delegated authority to some First Nations to run their own child welfare systems. The experiment had some difficult and sometimes tragic outcomes, especially in the beginning. Some of those delegated child welfare authorities were, to be blunt, set up by government to fail. They were underfunded; they were under-resourced; they didn’t have the trained and experienced staff nor the practical capacity to deal with their complicated and demanding caseloads — and children died as a result.

One of the chronic issues, which persists 20 years later, is that Ottawa has always funded child welfare services on reserve, and not the province. In Alberta, that creates a significant funding differential. Band welfare agencies for decades have received less money to do the same front-line work. Worse yet, they have been particularly shorted when it came to funding for preventative services — the front-end social supports that might have allowed struggling parents to retain custody of their children and helped families to thrive, healthy and intact.

When I first read Bill C-92, I was hopeful that this new framework, which would give even more direct jurisdiction to First Nations, Metis and Inuit communities to run their own child welfare agencies, would right that balance and give those communities the resources they need and deserve to care for their own — the resources, in fact, which the Canadian Human Rights Tribunal has previously ordered that they have — and hence the cautious nature of my optimism.

When this bill goes to committee, I believe it is essential that the committee make clear that if there is no firm promise of funding, then this new framework will remain just that: an empty frame; a flimsy, false-front building without walls, floors or ceilings. We can’t just promise Indigenous Canadians self-governance of their own child welfare systems without guaranteeing unto them the money and other resources necessary to do that job.

This can’t just be a form of words. A framework without an explicit funding commitment attached would be the most irresponsible of false promises.

That being said, there’s another specific concern that came up in committee that I’d like to raise. Bill C-92 puts a lot of emphasis on the principle of the best interests of the child. It goes without saying that the best interests of the child should be the foundation of every child welfare policy and every custody or guardianship decision.

But Bill C-92 puts particular emphasis on keeping children within their extended families and within First Nations communities whenever possible. In fact, it validates and privileges one very particular form of family-based foster care, known as kinship care, above all other care models.

Yet, if I may be blunt, sometimes kinship care is not in the best interests of a particular individual child. When it works, it can be a terrific method of care, an ideal way of minimizing disruption and dislocation in the life of a child. We can see that intuitively from our own family experience.

To be frank, I worry that if we make kinship care the most favoured, default model of care, we could inadvertently put some children in jeopardy.

Kinship care only works if there are proper checks and balances in place, if kinship care providers are properly screened and trained and supported. Too often, I have written about cases where children were placed in kinship care because it was cheaper and faster than finding qualified, licensed foster parents, be they Indigenous or non-Indigenous. Or where the philosophical imperative to keep children with family members, including their parents, at all cost actually cost the children in question their lives.

I’ve covered cases that ended in truly horrific neglect, abuse and death, because kinship care providers didn’t get the appropriate background checks or the necessary resources. And I’ve covered cases where children placed in kinship care died because social workers didn’t follow up or even closed their files and walked away.

That’s not to say kinship care can’t work. If the caregiving family members are properly prepared and get the ongoing support they need, it can indeed be the very best model, a paradigm for care that keeps families united and children in touch with their relatives and their roots. It can reduce social and cultural alienation and give kids a badly needed sense of emotional stability.

Real robust ongoing support is essential and thus I would ask the committee members to consider the practical life and sometimes death consequences of defining kinship care as the automatic first-best option. Sometimes because of intergenerational trauma, there is no one in a child’s birth family who is able to provide the care that child desperately needs.

And sometimes a child who has been in care has bonded already with a foster family and moving that child would deny them the security of remaining with the only adult caregivers they know, remember or love.

Let me be very clear. I would be the last person to say that the model of plucking Indigenous kids from their reserves, Metis settlements or neighbourhoods and putting them into non‑Aboriginal foster homes and group homes is a good one. And while I’ve covered horrific cases of children who died in kinship care, or after being returned to their parents, I’ve covered many cases of children who died at the hands of non-Indigenous foster parents, many of whom were also not adequately screened, trained, supported or monitored.

As I’ve said, the system we have now is fatally defective. We need a new and better model for caring for children at risk and for caring for Indigenous families.

I wholeheartedly believe in giving Indigenous communities the fundamental rights that they never should have lost, namely the right to administer their own child welfare system and to care for their own children.

Those rights should have been restored at least a century ago. I definitely agree that it will take frameworks and effort to achieve this kind of self-governance, but let’s ensure that Indigenous, Metis and Inuit communities get the resources they need to guarantee their successful self-governance.

Let me lean on the framework metaphor yet again. When you lay down rebar, when you frame a house, you have to start with a solid foundation. You can’t cheap out on your materials.

Let’s get this framework properly built. Let’s ensure that the best interests of children really are put before the jurisdictional squabblings of politicians and government agencies. Let’s make sure that we do everything we can to give the next generation the start it needs. I ask us to do so in the names of Korvette Crier, J’lyn Cardinal, Traezlin Starlight, Shalaina Arcand, Serenity R., Caleb Merchant, Jay Johnson, and all the hundreds of Indigenous children who have died because the care we and the status quo provided fatally failed them. Thank you.

Hon. Mary Jane McCallum

One of the major concerns that the Assembly of Manitoba Chiefs and I have with this bill is the negative and absent relationship with the province. I met with them this weekend and saw all the children that they had repatriated with their families.

Can you guarantee that this bill will force the province to hand the programs to the First Nations and provide the appropriate required funding? As you know, if not, it will put First Nations, Metis and Inuit children in jeopardy.

When we look at the resources, it’s the human resources to run the programs. It’s the funding. It’s the kinship. It’s the homes and people in those urban areas.

I really am concerned about this bill, and I have been. I just need some of the questions — we keep asking the MP and we are getting no response. I don’t understand the response he has given. It’s not a response.

Senator Simons

I thank the senator very much for her question. I’m so glad you asked it because I share many of those concerns.

I’m not the sponsor of the bill. I’m speaking to raise some of the very concerns that you’re raising. This has to work as all the jurisdictions working together — federal, provincial, the First Nations and other Indigenous agencies. Otherwise, it will just devolve into more jurisdictional squabbling. I agree with you absolutely that if the funding isn’t attached, then it’s an empty framework.

I can’t speak in defence of the bill. I’m so glad you asked the question because I think it’s a question that badly needs to be asked and answered.

Hon. Marty Klyne

Honourable senators, I begin by acknowledging that we are on the unceded Algonquin Anishinabek territory.

To understand this necessary legislation, we first need to understand that we are all treaty people.

The history that has led this chamber to the consideration of Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, is due directly to neglected treaty rights along with broken promises and human rights abuses of Indigenous children.

I am a Cree Metis from Treaty 4 territory and homeland of the Metis in Saskatchewan. On September 14, 1874, during the Treaty 4 negotiations, a prophetic question was asked and presented by Chief Kamooses to the government representative, Manitoba Lieutenant-Governor Alexander Morris.

Kamooses asked Morris this:

Is it true that my child will not be troubled for what you are bringing him?

Morris replied:

The Queen’s power will be around him.

This exchange was as visionary as it was frightening. For Kamooses and all the leaders present during these negotiations, it was apparent that there were potential negative effects the treaty agreement could have on their children.

Colleagues, what should we take away from Kamooses’ question?

More than a century ago, our elders were aware treaties could work against the best interests of their children and families, yet they accepted the guarantees from the Crown in good faith.

It would take only two years following the signing of Treaty 4 for the question posed by Kamooses to be answered with the federal government’s introduction of the Indian Act in 1876.

The Indian Act was and continues to be a framework explicitly drafted to separate children from their families to achieve cultural genocide, also known by its politically correct code word “assimilation.”

The act accomplished this in a number of ways. I will focus on the sex-based discrimination under section 6.1.

Under this section, a First Nations woman who left her reserve and married a non-status or non-treaty status man automatically revoked her and their children’s treaty status. She and her children were then no longer deemed a member of their First Nation community.

This meant that women who grew up on reserves with their mothers, fathers, brothers, sisters, cousins, uncles, aunts and elders were no longer allowed access to their community’s inherent treaty rights, not to mention that their children and generations that followed also lost their treaty status and, hence, inherent rights.

The Crown did this to deliberately carve apart families to ensure their children were unable to access their cultural heritage, as well as their treaty rights, ensuring a nation-to-nation relationship.

During the debate of Bill S-3 in June 2017, a bill that sought to remove sex-based discrimination within the Indian Act, Senator Dyck summarized the results of section 6.1 when she said:

Without status, these women and their children had to and continue to have to leave their communities.

Honourable colleagues, the history does not end with the introduction of the Indian Act, as further efforts to separate children from families occurred through the introduction of residential schools in the 1870s. Sir John A. Macdonald stated that the purposes of the residential schools were to deliberately separate children from their families — culturally, emotionally and physically. This is quite apparent when he stated that:

When the school is on reserve, the child lives with its parents, who are savages. . . . and though he may learn to read and write, his habits and training and mode of thought are Indian. . . . It has been strongly impressed upon myself, as head of the department, that Indian children should be withdrawn as much as possible from parental influence . . . .

Honourable colleagues, residential schools were mandatory in 1969 and the last one closed in 1996. Their sole purpose again was cultural genocide, by targeting an estimated 150,000 First Nations, Metis and Inuit children. But the history does not end there.

In 1959, the introduction of section 88 to the Indian Act provided the legislative capability for the provinces to take over any areas that were not covered by treaty, which included child welfare for Indigenous communities. This opened the possibility for provinces to become directly implemented in the relationship between Indigenous Canadians and the Crown, which resulted in what we now refer to as the Sixties Scoop.

The results of adding section 88 are unsettling because provinces were provided with their chance to contribute and accelerate the genocide. Provinces were given the power to apprehend children and separate them from their families. Consequently, to this day, there are Aboriginal Canadians who do not know who their mother and father were, nor do they know their brothers or sisters or any other family members, and some of those who were scooped continue to search for the family they lost.

In 1959, the proportion of Aboriginal youth and children in the child welfare system was 1 per cent, but this increased at an exponential rate until it was estimated that, by the end of the 1960s, only a decade later, Aboriginal youth and children made up 30 to 40 per cent of that system. The estimated total number of youth taken from their families ballooned to nearly 20,000.

Most provinces used their existing child and welfare legislation as a means for justifying the removal of thousands of children from their families. In Saskatchewan in 1967, the province implemented the Adopt Indian Métis program, or AIM, which was one of the only programs in Canada with the express mandate to remove First Nations and Metis children, taking them from their families and placing them in foster care to await adoption in Canada.

The Saskatchewan government offered incentives for those who operated AIM. In a CBC article addressing AIM, posted on March 20, 2018, there are examples of advertisements for First Nation and Metis children and a memo from the director of AIM dated September 25, 1973, to a supervisor declaring that the staff member for the program in North Battleford should be given “Salesperson of the Year Award” for their success at apprehending so many First Nations and Metis children.

The AIM program was efficient and effective in reaching its targets. According to the government, the result was such that by 1969, while Aboriginal people made up only 7.5 per cent of Saskatchewan’s population, Aboriginal children made up 41.9 per cent of all children in foster homes. These numbers have not changed much to this day, with First Nation, Metis and Inuit children making up 8 per cent of the Canadian population, while 52 per cent of children in foster homes are Aboriginal.

Bill C-92 is introduced at a time in our history when First Nations, Metis, Inuit and their communities have been told the relationship will change, yet the proportion of apprehended children remains unacceptably high.

This legislation addresses child welfare recommendation 1(ii) of the Truth and Reconciliation Commission, which asks that the federal government provide:

. . . adequate resources to enable Aboriginal communities and child-welfare organizations to keep Aboriginal families together where it is safe to do so, and to keep children in culturally appropriate environments, regardless of where they reside.

Bill C-92 also addresses recommendation 4(i) of the Truth and Reconciliation Commission, which asks the federal government to:

Affirm the right of Aboriginal governments to establish and maintain their own child-welfare agencies.

I share the concerns outlined in the seventeenth report of the Standing Senate Committee on Aboriginal Peoples, including the issues raised already, specifically that there are no legislated funding supports proposed within this legislation.

The federal government is instead giving their words in the preamble to Bill C-92, which outlines that:

. . . the Government of Canada acknowledges the ongoing call for funding for child and family services that is predictable, stable, sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and their communities . . .

But as we have learned from history, Indigenous Canadians and their children were nearly obliterated for having taken the federal government at their word. The communities do not need acknowledgment; they need actions that outline specific financial commitments.

Honourable colleagues, our system is still broken. It continues to deliberately target our children, and it will take sustained efforts for Aboriginal Canadians to realize the same rights enjoyed by non-Aboriginal Canadians.

It took more than a century to build this system, a system that has been used to disenfranchise Indigenous peoples in Canada. This disenfranchisement will linger until the political will exists to abolish the Indian Act and the federal government assumes the role representative of the Crown, upholding the obligations contractually signed during treaty settlements.

We should make no mistake: The First Nations, Metis and Inuit people are resilient. Past governments and decision makers have tried to completely extinguish our culture, customs, beliefs and languages, erase our history and put a stop to the telling of and passing down of stories and teachings from one generation to the next. In part they were successful, but not fully. There has been positive change and there have been efforts to redress the wrongs. I have personally witnessed the power of creating our own opportunity for self-governance and economic independence and the positive strides made by countless communities.

First Nations, Metis and Inuit Canadians are industrious when barriers are removed and they are given the chance to take charge of their own destinies. Our children are our future, and they not only acquire traditional teachings and skills, but they are also benefiting from contemporary skills, training and education, enabling them to participate actively in the mainstream economy, making valued contributions to Canada’s economy and concurrently moving from dependency to self-sufficiency.

Honourable colleagues, Bill C-92 is a positive step to removing barriers from some 40,000 children in non-Aboriginal welfare, welfare care or foster care homes and returning them to their communities and have the chance to be all that they can be so that they may make their valued contributions to Canada.

Senators, I ask you to please join me in supporting this legislation. Thank you.

The Hon. the Speaker

On debate, Senator Patterson.

Hon. Dennis Glen Patterson

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.


Will the honourable senator take a question?

Senator Patterson



Thank you very much for your speech, Senator Patterson. As a critic you’ve done a very thorough job. I just have two questions for you, one to do with funding and the second concerning the Assembly of Manitoba Chiefs.

You talked a lot about funding. The bill doesn’t guarantee funding. My question relates to whether you’re talking about the original bill or the amended bill.

Originally, under coordination agreements, the bill stated, and I’ll actually read it into the record:

. . . fiscal arrangements related to the effective exercise of the legislative authority . . . .

That’s with the agreements between the Indigenous organization or governing body and the federal governments, which is pretty vague.

It was amended in the House of Commons to read:

. . . fiscal arrangements, relating to the provision of child and family services by the Indigenous governing body, that are sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities and to support the capacity of the Indigenous group, community or people to exercise the legislative authority effectively . . . .

My question would be: Are you saying that the amended version is still not adequate?

Senator Patterson

We need strong principles for funding, as requested by numerous witnesses. I do believe that the amendments you speak of are an improvement in this connection.


My second question relates to the concerns brought forward by the Assembly of Manitoba Chiefs. You may have dealt with them. I might have missed it.

We heard that the Assembly of Manitoba Chiefs was very concerned that they’d been negotiating with the Province of Manitoba for some time and had not been able to either get the province to the table or to reach an agreement. Our committee recommended that there be a provision that clarifies that where an Indigenous governing body has tried to work with the provincial or territorial government, that time should be recognized. They shouldn’t have to start all over and then take another year.

Are you proposing some kind of amendment that would satisfy the concerns of the Assembly of Manitoba Chiefs?

Senator Patterson

I thank the honourable senator for the question. Yes, we all agreed when we heard from the Assembly of Manitoba Chiefs that when they had started in good faith on an existing arrangement that was moving along well, there should be a recognition of that situation in the bill and they should not be required start all over again.

I didn’t address that in my speech but I think it should be addressed at committee. I will even go so far as to say our committee members were quite sympathetic to the position of the Manitoba chiefs when presented to us.

They’re ahead and have made progress on an Indigenous-led, Indigenous-developed system in keeping with a good faith agreement that they entered into with Canada. They shouldn’t be prejudiced. I agree. We should try to fix that.

The Hon. the Speaker

Are honourable senators ready for the question?

The Hon. the Speaker

It was moved by the Honourable Senator LaBoucane-Benson, seconded by the Honourable Senator Simons, that this bill be read the second time.

Is it your pleasure, honourable senators, to adopt the motion?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)