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

Third Reading--Debate

June 13, 2019


Hon. Patti LaBoucane-Benson
[23:36]

Honourable senators, with leave of the Senate, I move third reading of Bill C-91, An Act respecting Indigenous languages, as amended.

She said: Honourable senators, I begin tonight by acknowledging both the traditional land of the Algonquin peoples as well as my Métis ancestors.

I’m pleased to offer these final thoughts on Bill C-92.

Honourable senators, in 2019, the child welfare system remains a colonial artifact of the residential school system. Service provision is still enabled by the Indian Act. That is the status quo.

In 1950, there were almost no Indigenous children on the child welfare caseload because they were all at residential schools. However, in the early 1960s, the government realized that the residential school experiment was not working because the assimilation agenda was failing. Indigenous children were leaving residential schools without a connection to the broader Canadian society. They were not assimilated.

Many children were also leaving residential schools with significant mental health issues connected to the colonization of their identity, lack of training and self-management, and the physical, sexual, emotional and spiritual abuse that many suffered at the hands of school staff.

The government turned its assimilation tactic from residential schools and it landed squarely on child welfare and adoption. They believe that the permanent placement of Indigenous children into non-Indigenous families would complete their mission of assimilation and the eradication of Indigenous culture. The federal government transferred jurisdiction of child welfare to the provinces. Indigenous child welfare policies and practices were founded on the assumption that for Indigenous children to thrive they needed to be raised and educated in euro-Canadian society, a belief that is connected at its core to the colonial assumption that Indigenous people are primitive and unable to care for themselves.

Both adoption and residential schools proved to be hostile environments for Indigenous children. They were not raised with a nurturing adult who could be trusted. The Truth and Reconciliation Commission report described the children as being starved for attention, becoming adults with no experience of healthy family relationships to draw on and now in making this intergenerational case, because many Indigenous children grew up and they passed on their sense of identity confusion, isolation, hopelessness and the inability to form trusting relationships to their children. This is what we call historic trauma. It places the trauma of colonization, including residential schools, into an intergenerational context and helps us to understand the over-representation of Indigenous children and families in the child welfare system across our country.

Colleagues, the truth is that while the colonial assumptions that inform child welfare policy have remained mostly intact, the practices that expressed these ideas have morphed over the years. Since the 1960s children have been apprehended due to the issues of community-wide structural inadequacies that individual parents cannot rectify.

A 2016 report revealed that the worst poverty is experienced by Indigenous children.

It stated that across Canada, 51 per cent of status First Nation children live in poverty and if we look only on reserves, that number rises to 60 per cent. As a social indicator of health, children who experience persistent poverty are at higher risk of suffering health problems, developmental delays and behaviour disorders. They tend to attain lower levels of education and are more likely to live in poverty, experience homelessness and incarceration as adults.

What has been our response to this shameful reality? Rather than lifting Indigenous families out of poverty with housing, income and employment supports, our society has chosen to blame them for the economic policies of the Indian Act and pay other families to provide foster care.

In the process, we have privileged assimilation into Western culture and community over the Indigenous child’s connection to their family and culture. We’ve done this under the guise of the best interest of the child. For 60 years, child welfare has been a catch-all system for the ongoing multi-systemic failure to understand, support and create space for the healing of Indigenous families. Rather than provide culturally competent mental health services for parents that address historic trauma, we have blamed families for their illness and addictions and taken their children.

Apprehension has been used as a default response for the lack of adequate housing on First Nations and in remote communities, a punishment for families who live in communities with poor drinking water, roads that are impassable for four months of the year and other infrastructure neglects that have plagued First Nations and remote communities for decades.

Although many provinces have already created policies that prevent apprehension solely on the basis of poverty, without supports to families that address poverty in historic trauma and mental health issues, Indigenous children continue to be apprehended at alarming rates. Because communities have not been fully supported to build the capacity for kinship care and other community-based placements for their children, they continue to be placed in non-Indigenous foster care.

The goal of Bill C-92 is to take a significant step forward in the process of changing this history, to repatriate jurisdiction over children’s services to Indigenous peoples, to ensure the implementation of minimum standards that seek to decolonize child welfare practice and to put preventative service in place that will support Indigenous families to raise their own children.

To be crystal clear, though no one advocates for leaving children to languish in poverty with their family, rather, we must all call on the provinces and the federal government to work in good faith with Indigenous communities to ensure that coordination agreements are created in a timely way and they bring housing, income support and mental health departments and their funding to the table.

If governments create coordination agreements that continue to focus only on intervention and ignore prevention, nothing will change and we will have failed Indigenous children yet again.

As the Yellowhead Institute stated, without adequate and sustainable funding agreements, Indigenous people will be left to administer their own poverty.

These agreements need to be creative and well resourced to support families to break the cycle of historic trauma, to create the space for on-the-ground healing and true reconciliation. Why should we expect anything less for Indigenous children who are gifts from the Creator and our hope for the future?

Honourable senators, I want to thank the Standing Senate Committee on Aboriginal Peoples for their hard work on Bill C-92. From our pre-study to drafting reports and the clause-by-clause consideration yesterday, I am so grateful for every member’s demonstrated commitment to improving the bill and, by extension, the lives of Indigenous children and families. Our work was nothing less than collegial and focused, and we were efficient largely due to the fantastic work of the clerks and the library of Parliament staff. I want to thank them for their unwavering support during our very thorough study of the bill.

You may remember that I reported our pre-study report influenced three significant changes to the bill in the other place. However, while this bill is a significant step forward from the Indian Act, the legislation remains imperfect. The committee has recommended further amendments to the bill, including acknowledging the inherent right to self-government of Indigenous peoples, the remediation of families’ socio-economic conditions that led to child neglect, as well as the establishment of an Indigenous advisory committee to assist the minister in this work. To be honest, the disentangling of provincial jurisdiction from Indigenous child welfare and reducing the over-representation is a complicated process.

I anticipate that I will be working on this piece of legislation for many years to come. I invite you to help me.

Honourable senators, I finish my work as sponsor with a message of gratitude. It has been an honour to steward this important bill through the Senate. Hiy hiy.

Hon. Dennis Glen Patterson
[23:45]

Honourable senators, may I put it on the record that the Toronto Raptors have just won the NBA championship. I know that was out of order, Your Honour. I hope you’ll forgive me.

I am pleased to rise on Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families.

As I stated at second reading, as the critic of the bill, I strongly agree with the intent of the bill.

Improving the child welfare system and ensuring the health and best interests of our Indigenous children is at the very core of any bill pertaining to child and family services.

What concerns me about this bill is the way in which the government has chosen to advance this legislation. I would like to reiterate my disappointment again with the fact that this government left this bill until the end of this session, thus failing to afford the issues it raises, the adequate study and scrutiny it deserves. Fulsome discussion and cooperation with Indigenous governing bodies is required to find well thought-out solutions to address the continued suffering of children and families due to a broken colonial system.

Anticipating the short time frame in which to dispose of this bill due to its delayed introduction, your committee conducted a pre-study. The witnesses who appeared revealed some significant challenges with the legislation, some of which we have tried to address in committee, while others are simply beyond our ability to resolve.

The recent letter to senators, shared by Senators McCallum and McPhedran that outlines outstanding concerns related to the Association of Manitoba Chiefs, serves to reinforce my belief that while a lot has been achieved, more time and analysis would have yielded better results. Without the significant changes introduced in this chamber, this bill would have done a disservice to the children and families for whom this legislation was drafted.

Much like Bill C-91, I was also disappointed to hear in clear testimony that this bill failed to respect the co-development process that is so often touted as a triumph by this government. A number of witnesses called into question the adequacy of consultations with Indigenous groups.

For example, 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.

Professor Cindy Blackstock had a similar perspective. In her opinion, the government failed to include Indigenous opinions and voices when drafting this bill. She stated before the committee:

When I saw a draft of the bill, provided feedback and, like many others, echoed the need for funding, that didn’t appear in the next draft. The actual decision-making about what went into the bill was done by the government itself. It did not include any First Nations or, to my knowledge, Metis or Inuit people in the drafting of the bill, nor did they allow us to see a second draft of the bill in order to be assured that some of the major elements that we felt were preconditions for success were integrated. I know they say it was co‑developed but that was not my experience of it.

It is disappointing that the government has so badly failed to properly and effectively work with Indigenous groups, that it has not really listened to their representatives in the drafting of this bill.

Equally disappointing is that the government-dominated committee in the other place chose to ignore most of the amendments brought forward by the progenitor of this initiative. I remember being on a call last summer with former Minister Jane Philpott. She discussed how important the issue of Indigenous children in care was to her and promised to work collaboratively with Indigenous people and the Senate to craft a bill that struck at the heart of the problem.

She actively engaged with committee members to organize engagement sessions and round tables so as to properly understand current gaps in the legislation and failed policies that were leading to the over-representation of Indigenous children in the public child welfare system.

So it would seem common sense to me to carefully consider her suggested amendments to this bill as the main interface with stakeholders over the final six months of her time as Minister of Indigenous Services Canada.

Yet, most of her amendments were dismissed out of hand, with the other place refusing to accept over a dozen amendments. This was them failing over a dozen times to incorporate the legitimate concerns brought to the government in good faith during the engagement and co-development processes. This failure has had consequences for this legislation, and the bill, as a result, in my submission, came far short of the declaratory objectives.

Thankfully, this is the chamber of sober second thought. By being ready to correct oversights, the Senate can provide an opportunity to witnesses who may not have had a chance to appear before the other place to instead be heard in the Senate committee. We are charged in that place to represent the voices of minorities and regions, and I believe that our work is vital to finding ways to improve legislation. I know we take seriously our duty to address the issues brought before us.

That is why I chose to support and reintroduce amendments that did not pass in the other place, but that were largely supported by evidence from our committee proceedings. Some amendments reflected those brought forward by stakeholders to our committee directly, some amendments were introduced by the NDP members, some by Ms. May, and many were originally introduced by Dr. Philpott in the other place.

I believe the work our committee did on this bill is a shining example of why the work of the Senate is important and relevant.

Many of these amendments were supported by everyone but the Liberals. To be clear, these amendments received support across partisan lines and were supported by NDP, Conservative, Green and independent members. The rationale behind these amendments was rooted in witness testimony and genuine concern for Indigenous children and their families. But these concerns were dismissed out of hand by the government majority on the committee.

The amendments, I would remind my colleagues, sought to address issues such as vague funding principles, an all-too-narrow definition of child and family services, that excluded important issues such as post-majority support, prenatal care and adoption, as well as issues surrounding jurisdiction.

So once again we are faced in this bill with an issue surrounding funding, and once again we are faced with a question of how the government will determine what qualifies as adequate funding levels.

There is also an added complication. Unlike Bill C-91, the government chose not to include a Royal Recommendation in the bill before us. That leaves the federal department constrained to work only with money that already exists in various funding envelopes. The minister cannot access new money. Since we are unable to add a Royal Recommendation in this chamber, the absence of one made it imperative that we include strong principles for future funding as requested by numerous witnesses.

I was pleased that among some of the positive amendments the committee was able to make included provisions for reporting back to Parliament on the adequacy of funding measures by the minister every five years. According to the amendment, this must be done in cooperation with an advisory committee, with members appointed in consultation with Indigenous governing bodies.

It was the hope of this committee that inclusion of this amendment would help ensure the funding levels are adjusted to meet the needs that arise and that recommendations are based on direct input from Indigenous people.

The committee will work with the minister to “specifically study the adequacy and methods of funding and assess whether the funding has been sufficient to support the needs of Indigenous children and their families.” This provides a measure of assurance that the government will be compelled to provide the resources that will be required.

We also heard from witnesses that the current definition in the bill of child and family services is simply too narrow. The existing provincial and territorial legislation that governs the provision of child and family services includes varying and too often vague definitions of child and family welfare services.

A lack of clear definition may result in limitations to the types of services that First Nations may choose to exercise jurisdiction over and could lead to delays and denials of vital services for Indigenous children and families. This was pointed out by the brief submitted by Carrier Sekani Family Services.

Cindy Blackstock also called for a definition of child and family services that includes a wider range of services, including post-majority care services and adoption services.

Based on these concerns, an amendment was brought forward in committee that added to the definition of child and family services, important elements such as adoption, reunification and post-majority transition services. Incorporating this broadens and makes more inclusive the concept of child and family services, as called for by witnesses.

I was very pleased the committee supported the principle behind that amendment, which I was privileged to introduce, and provided useful insights into how to improve it. The proposed expansion of the definition, as subamended by the committee, passed unanimously, which is why I hope the government will trust the work of the committee as we seek to improve the legislation.

Many of my colleagues will know that I am very focused on advancing the concerns of my region. I believe that it is one of my duties as only one of two parliamentarians representing Nunavut in Ottawa. That is why I sought to address concerns that we heard from the Government of Nunavut about its concerns that Bill C-92 could undermine the work that has gone into creating carefully crafted Nunavut-specific legislation that was truly co-developed by the Inuit of Nunavut.

That was taken care of in an amendment, and I thank the committee for their support. Our amendment aimed to reduce jurisdictional conflict between provisions in the bill and current legislation that governs child and family services in Nunavut.

My thanks to Senators Sinclair and LaBoucane-Benson who were very supportive and helpful in these discussions. I believe we came up with a final amendment to clause 5 that will work very well to address concerns by the Government of Nunavut.

The minister has declared a willingness to consider amendments. I only hope that this commitment is a real one as the amendments put forward underscore how deeply all senators on the committee care about this issue and how much work has gone into trying to improve this bill in keeping with what witnesses have told us. While we have often had sharp differences on other bills, on the matter of child and family services there has been strong collegiality and willingness to work together in our committee to truly improve the situation for our Indigenous children.

That is why I would urge senators to support the bill as amended.

Thank you.