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

Second Reading--Debate Adjourned

June 6, 2019


Hon. Patti LaBoucane-Benson
[19:15]

Moved second reading of Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families.

She said: Honourable senators, I’m a Metis-Ukrainian from Treaty 6 territory, rising today to speak about Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, and acknowledging that we are on the traditional and unceded territory of the Algonquin people.

Bill C-92 is the first attempt to repatriate the final authority to care for children to First Nations, Metis and Inuit communities and nations. It is our first step in removing First Nations child welfare from the administration of the Indian Act. I humbly argue that this legislation is desperately needed, a long time coming and arguably should have been passed 150 years ago.

There are two overarching purposes of Bill C-92. The first is to affirm the rights and jurisdiction of Indigenous peoples in relation to child and family services. Ever since the first Indigenous child was apprehended by the RCMP in 1831 and forced to attend residential schools, the authority to decide the best interests of the Indigenous child has rested with the federal government.

We need to pay close attention to the term “affirmed.” To be clear, Indigenous nations and governments did not ever give up their authority to make decisions about their children. When Duncan Scott stood up in the House of Commons in 1920, he stated he wanted to have the entire possession of every Indian child; every Indian child aged five to 15 must attend residential schools.

The federal government did so without any consultation nor the consent of First Nations, Metis and Inuit governments across Canada. Scott was referring to a bill that would amend the Indian Act to ensure the government could separate children from their family, their culture, their language and their spirituality, socialize them into European values and lifestyle and assimilate them through enfranchisement. His government — and, by extension, Canadian society — deemed Indigenous people primitive, savage, childlike and unable to care for themselves and heathen, that they needed to “kill the Indian in the child” to save him.

In residential schools, children were often beaten for speaking their Indigenous language. They were being told by the staff that the spirituality they learned at the feet of their grandparents was evil and heathen and they were going to the devil if they practised it.

If they got to go home in the summer — and not all did — they were threatened by school staff, “You’d better not go to ceremony, or you’re going to get it when you get back.” So many children became suspicious or afraid to attend these ceremonies that would have brought them back into their families and communities, helped them to understand who they were as Indigenous people, what the rules were and what their responsibility to their nation was. They did not learn their wahkohtowin. Because of the harsh language policies, children were losing their capacity to speak their first language and often their ability to speak with their grandparents. They were not learning the wahkohtowin, the doctrine of relationships that was embedded in that language.

As early as 1913, Indian agents on reserves noted a culture gap was forming. Because children were leaving residential schools and were not assimilated into Canadian society, they didn’t feel a part of the Canadian social fabric. But they also did not feel connected to their families or their communities either. They were leaving residential school stranded between two communities, without an identity.

The jurisdiction over the well-being of children was later transferred to the provinces through the Indian Act for the provision of child welfare services. This transfer was done without establishing any national standards, allowing each province to then determine what was in the best interests of the child.

These provincial practices were imposed on First Nations, Metis and Inuit peoples and communities without their consent and without properly considering the devastating effect that ignoring their rights and disrupting the continuity of their culture, language and identity would have on future generations.

Honourable senators, I have sat in many healing circles, witnessed the pain of residential school survivors and other Indigenous people who have been raised with no connection to their family or their culture. Their stories paint a 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.

I have also witnessed the transformational healing grounded in the reclamation of their culture, language and spirituality. Colleagues, many, if not all, Indigenous peoples have sacred teachings about children. Many believe that children are gifts from the Creator and that our job as parents, uncles, aunts and grandparents is to protect, nurture and teach them so they become a contributing member of our interconnected web of relationships in our community. To have this fundamental right taken away attacks the very humanity of Indigenous people, families and communities.

For this reason, Bill C-92 has been described as historic. Bill C-92 seeks to shift the national law of Canadians to create legislative space to recognize First Nations, Metis and Inuit people’s law to prevail over provincial, federal and territorial child and family service law. The bill affirms a pre-existing and the inherent constitutional, Aboriginal and treaty rights of First Nations people. The bill also seeks to contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, and especially the inherent right of self-determination as a minimum standard for the survival and dignity of Indigenous people.

This bill does not have a one-size-fits-all approach and is supposed to be designed for Indigenous peoples to exercise partial or full jurisdiction over child and family services at their own pace. But colleagues, let’s be realistic. Bill C-92 is only the first step in a long and complicated process.

Mary-Ellen Turpel-Lafond wrote that multiple, intensive and focused strategies will be required to effect changes in these systems. Legislative reform is one critical aspect. Bill C-92 is not a panacea. The work to reduce the number of First Nations children in care, promote family unity and prevention approaches is formidable. Clearly, real change will require an Indigenous nation, the federal government and provinces or territories to work together in good faith to create coordination agreements that achieve this transfer of jurisdiction.

The coordination agreements need to also reflect some out-of-the box thinking. Dr. Turpel-Lafond also wrote that the reduction of child welfare interventions and removal of children is linked to investments — big investments — and broader social supports for families and communities to improve the condition for children and families. That is to say, coordination agreements must include interdepartmental contributions for tangible support for things like mental health care, housing and income support. This is why support for the bill is mixed.

All of you have received the pre-study of the Standing Senate Committee on Aboriginal Peoples regarding Bill C-92. We heard polar opposite testimony about that bill that at times was hard to reconcile. For example, on the one hand, we heard from the Vice Chief David Pratte, from the Federation of Sovereign Indigenous Nations in Saskatchewan, who said in support of the bill:

FSIN and many of our tribal councils and First Nations are already working to implement their authority and laws for children and families, and that work is currently being developed. Saskatchewan is ready to occupy the field in jurisdiction of child welfare and we will succeed where the provincial Ministry of Social Services of Saskatchewan has failed our children time and time again. We cannot be held back any longer, and our children deserve better than the status quo that exists today. We hope this bill will help influence continued recognition of our inherent, God-given and treaty rights, title and jurisdiction in future co-development.

Senators, it’s true. We heard from other witnesses who are cautiously optimistic about the bill and the ability to begin the process of transfer of jurisdiction, even when they considered the lack of good faith demonstrated by governments in the past.

On the other hand, Grand Chief Arlen Dumas, from the Assembly of Manitoba Chiefs, on that same panel, said:

. . .the main issues that we have with the current legislation are that there was no meaningful consultation, it’s a pan-Indigenous approach, and it does not respect the laws or jurisdiction of Indigenous people.

Chief Dumas’ statement highlights a concern or question that many people raised. Will Bill C-92 actually transfer jurisdiction or does it further entrench provincial jurisdiction?

There were legal opinions presented to the panel from learned Indigenous lawyers both for and against. There are certainly aspects of the bill that clearly describe a path toward a primacy of Indigenous child and family law. There are other clauses, however, that raise a spectre of doubt that this can actually be accomplished.

The foundation of this misgiving is a deep distrust of the federal and provincial governments and the doubt that the governments will ever relinquish their jurisdiction and the suspicion that efforts to subvert Indigenous self-governance will continue. Can we blame any Indigenous leader for doubting? We have a whole colonial history that supports these misgivings.

Further, other witnesses also questioned whether this legislation was drafted with Indigenous people. The government representatives told the committee that in 2018 the Government of Canada actively engaged with national, regional and community organizations, with representatives of the First Nations, Inuit and Metis, as well as treaty nations, self-governing nations, provinces and territories, experts and those with lived experience. They conducted over 65 engagement sessions and nearly 2,000 people participated across the country. Based on the feedback they received during the engagement sessions, a reference group was created to validate the options for a legislative path.

The reference group, which was chaired by Mary-Ellen Turpel-Lafond, was comprised of delegates appointed by the Assembly of First Nations, ITK, the Metis National Council and the Government of Canada. The government also sought out and made changes based upon the feedback from the Consultative Committee on Child Welfare and the National Advisory Committee on First Nations Child and Family Services Program Reform. The ministry staff referred to this as a co-development process.

However, even with all that engagement, most witnesses did not agree. Some even reported to us that they felt completely left out of the legislative drafting process. Clearly, the definition and criterion of co-development and consultation needs to be further considered by the federal government in consultation with Indigenous peoples.

The second goal of Bill C-92 is to set out national principles for the provision of child and family services in relation to Indigenous children. This is in direct response to the TRC call to action number 4, which states:

We call upon the federal government to enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody and includes principles that:

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

ii. Require all child-welfare agencies and courts to take the residential school legacy into account in decision making.

iii. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate.

Therefore, the bill sets out principles that should guide the way in which courts, as well as service providers, work with Indigenous children and families.

When the child welfare staff are making decisions or taking actions related to child apprehension, the primary consideration must ensure both the safety and security of children and that they maintain a connection to their family and culture.

The bill further outlines many other factors that would have been considered in the process. This bill also emphasizes the need to shift from apprehension to prevention. This includes support for families, with priority given to services that promote preventative care, the need to provide prenatal care to support pregnant women and prevent the apprehension of newborns.

The bill states explicitly that a child should not be apprehended solely on the basis of his or her socio-economic condition, including conditions such as poverty or lack of adequate housing.

If apprehension is deemed necessary, the bill establishes an order of priority that must be respected for the placement of a child. The first priority is to place the child with the child’s parents, the next is with another adult member of the child’s family, after that with an adult who belongs to same Indigenous group, community or people as the child, then with an adult who belongs to another Indigenous group, and finally with another adult. There are also concrete steps to ensure the Indigenous children in care keep strong emotional ties with their family and stay connected to their community and cultures.

Honourable senators, some of these policies or versions of them exist in provincial legislation across our nation. However, this is the first time the federal government has provided a framework for the minimum standards that Indigenous children should experience when receiving services. Although the TRC stated that minimum standards are necessary, it’s also true that the committee heard from Indigenous people who feel the federal government has no right to impose standards and this authority must rest solely with First Nations, Metis and Inuit governing bodies.

Finally, Bill C-92 is an imperfect bill. There are still many things that need to be worked out to disentangle provincial and federal jurisdiction in the authority over Indigenous families and children. Our pre-study was completed before the other place completed their committee work.

I am grateful to report that our work includes three important amendments. First, the government responded to numerous testimony that called for a funding statement in the body of the bill. That funding statement is in the “coordination agreement” section. Second, the inclusion of UNDRIP in the body of the bill. And third, a change in the primary condition of the best interests of the child to include both safety and security, as well as connection to family and culture.

However, I wish we would have had more time for a fulsome discussion on this important bill and that we were better able to resolve some of the outstanding issues, rather than rushing through the process at the end of a sitting. This is disappointing because I believe thousands of Indigenous children in care deserve it.

On a personal note, when I decided to sponsor this bill in the Senate, I took tobacco and offerings to Fred and Melanie Campiou’s sweat lodge to ask for help with the bill. I say this very humbly because I recognize that thousands of Indigenous people for decades have been going to ceremonies and praying that children are returned home and their families are able to heal. I hope that Bill C-92 proves to be one of those answers to our prayers. Hiy Hiy.