Bill Respecting First Nations, Inuit and Métis Children, Youth and Families
Message from Commons--Motion for Concurrence in Commons Amendment and Non-Insistence Upon Senate Amendments Adopted
June 20, 2019
Moved:
That, in relation to Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, the Senate:
(a)agree to the amendment made by the House of Commons to its amendment 6; and
(b)do not insist on its amendments to which the House of Commons disagrees; and
That a message be sent to the House of Commons to acquaint that house accordingly.
He said: Honourable senators, I rise to speak to the message from the other place regarding Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families.
On behalf of the government, let me begin by thanking our colleague, Senator LaBoucane-Benson, for her dedicated work as sponsor of this bill and for her enthusiasm for its expectation.
I would like to thank the Standing Senate Committee on Aboriginal Peoples for their work to both review and improve this legislation over the last number of months.
Through Bill C-92, the government is seeking to implement critical improvements to child and family services systems that are affecting Indigenous children and youth, while reaffirming and respecting Indigenous jurisdictional rights.
With respect to the message received from the other place, the government has agreed to four amendments. In two instances, the government has done so without modification. In one instance, the government has modified a Senate amendment and, in another, the government has accepted the amendment in part.
First, the government has agreed to a Senate amendment reinforcing the principle of the bill articulated in the preamble by repeating that language elsewhere in the legislation. Specifically, that amendment reinforces that the right of self-government in Indigenous nations is not legally assigned but is inherent according to the human rights of Indigenous peoples. This inherent jurisdiction includes jurisdiction in relation to children and family services.
Second, the government has accepted a Senate amendment that would change the reference from “a child’s well-being is often promoted” to “best interests.” This is a term used more consistently throughout the legislation and which best captures the principle of putting children’s interests first.
Third, the government has modified a Senate amendment in relation to the provision of preventive care to support a child’s family before a child can be removed from her or his family. The government has proposed wording that respects the principle of the Senate amendment but has used wording that is less prescriptive, requiring a demonstration of reasonable effects to have the child continue to reside with their family.
Fourth, the government has accepted part of a Senate amendment to the preamble. The rationale underlying this amendment is that parents were not mentioned in the preamble but are mentioned throughout the bill. Therefore, this amendment would remedy this oversight while maintaining the coherence of the overall legislative framework proposed in Bill C-92.
The government has chosen to respectfully decline some Senate amendments.
For example, the government has respectfully declined an amendment that would allow the provisions of the Nunavut legislation to prevail if there’s a conflict or inconsistency between the provisions of this act and the provisions of the Nunavut legislation relating to child and family services, as this proposed change could create a conflict between Indigenous and territorial laws.
Concerning a Senate amendment to create a new advisory committee, the government has respectfully declined this amendment. Upon coming into force, discussions will take place with Indigenous partners, provinces and territories to determine if there is a need for such an advisory committee to determine what its role should be. These discussions will take place when distinction-based transition governance structures are established to provide recommendations on the implementation of this bill.
As well, the government has respectfully declined a Senate amendment with regard to review of funding. Again, the government believes that further discussions are required with Indigenous groups, provinces and territories in order to assess the funding needs of communities, as well as to identify proper funding methodologies. Funding requirements for each community will vary depending on the child and family services model they wish to adopt, along with their distinct needs and priorities.
In addition, these types of reporting requirements can be added through the transition governance structures or coordinating agreements, and there will also be an opportunity to look at funding through the reporting structure set out in the bill itself.
Honourable senators, to conclude, Bill C-92 is a crucial step toward reforming the family and child services system so that First Nations, Inuit and Metis peoples can themselves decide the best path forward for their children and families. Bill C-92 upholds the principle of the best interests of the child while affirming Indigenous jurisdiction.
Again, I thank honourable senators for their careful review of this bill and propose that we concur with the message from the other place to make this important and overdue change into law.
Honourable senators, I too rise today to speak to the message received on Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families. I do so as the critic for the bill. I feel it is my duty to express concerns about it.
I am disheartened to once again stand before this chamber and have to communicate my disappointment in the government’s rejection of thoughtful amendments that, again, were unanimously adopted in committee and by this chamber.
We have here before us an important opportunity help reduce the number of Indigenous children and youth in care. We have a chance to empower Indigenous governing bodies and organizations with the ability to decide for themselves how to approach the issues surrounding child and family services. Through this bill, we could not only reduce the number of children in care but also reduce the number of apprehensions, curbing the practice of placing children in non-Indigenous families, which severs ties to their family, culture and community. We could put money into prevention and community support services.
Yet, once again, I feel great concern that we are squandering these opportunities by refusing commonsense amendments that would have significantly improved this bill. These amendments would have brought increased clarity, certainty, comfort, transparency and accountability based on the testimony of:
. . . more than 30 witnesses and . . . many detailed briefs on Bill C-92 . . . .
That testimony was identified in the report by the Standing Senate Committee on Aboriginal Peoples.
I think it is important to note that at the conclusion of the committee’s pre-study, the report acknowledged that:
Many witnesses told us that, while they strongly support the concept of a bill that recognizes and affirms the inherent rights of Indigenous Peoples and their jurisdiction over child and family services, there are significant gaps in Bill C-92, such as . . . the absence of funding principles and other issues which are discussed below. Your committee acknowledges the concerns raised by witnesses. Your committee also acknowledges the testimony of Indigenous organizations and individuals who do not support the bill because they feel that it undermines agreements and processes that were either already in place or were progressing, or because they feel that the bill, as drafted, imposes limits on their ability to fully exercise their jurisdiction.
Colleagues, these are not small issues.
After careful study and consideration, the amendments that were put forward and accepted addressed many of these concerns.
I would also point out that many of the amendments I chose to introduce were originally proposed in the other place by former Minister of Indigenous Services the Honourable Jane Philpott. As I told this chamber during third reading, one year ago I had the unique experience of joining a teleconference with all committee members and Dr. Philpott, who told us of her commitment to introducing and passing this legislation during this parliamentary session. She stressed to us the importance of hearing from the grassroots and ensuring that the government “got it right.” Having been part of the engagement sessions that led to the drafting of this bill and having been part of the original draft, I think she was uniquely positioned to give advice on addressing the deficiencies of this legislation — at least, that was my thinking.
But it is apparent to me, after seeing the bulk of the Senate amendments rejected by the government, that this sentiment was not shared in the other place. The Senate committee found that:
Virtually all witnesses told the committee that a funding commitment needs to be included in the bill, beyond the reference to funding in the preamble and the reference to fiscal arrangements that could form part of a coordination agreement. Some witnesses suggested it be included in the principles section of the bill; others proposed alternative solutions. We heard that without funding, Indigenous communities will not be able to fully exercise jurisdiction, and that nothing will change for Indigenous children and families. Funding should be long-term, predictable, stable, sustainable, needs-based and consistent with the principle of substantive equality.
However, the government saw fit to reject amendments that would have included reporting back on the adequacy of funding measures. Without the inclusion of a Royal Recommendation, there is limited funding that can be shifted from existing monies to address the issues covered by this bill. But it was the hope of the committee that the inclusion of this amendment would help to ensure that funding levels are adjusted to meet the needs based on direct input from Indigenous people. That is why the amendment calls for the establishment of an advisory body, struck in consultation with Indigenous governing bodies, to 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.”
Other amendments that were rejected would have added specific references to the legislation to child protection, adoption, reunification and post-majority transition services. This would have broadened and made more inclusive the concept of child and family services, creating a continuum of care for children, youth and young adults. Your committee heard time and again that it was important for this definition to be as inclusive as possible.
I do note that Senator Harder referred to an amendment that did address a concern of the Territory of Nunavut, but I do also have to note that the government rejected an amendment that would have responded to other concerns raised by my home territory. That amendment would have ensured that:
If there is a conflict or inconsistency between the provisions of this Act and the provisions of Nunavut legislation relating to child and family services, and the provisions of the Nunavut legislation provide a level of services that meets or exceeds the level of services provided for by the provisions of this Act, the provisions of the Nunavut legislation prevail to the extent of the conflict or inconsistency.
That amendment was also rejected, despite an observation made by your committee that stated:
For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act.
The committee was concerned that this clause imposes a limit on provinces or territories whose existing legislation exceeds the level of services that are provided for in the bill. The example of Nunavut was of particular concern to the committee. While the departmental officials clarified that where provincial or territorial legislation relating to child and family services is seen as providing a level of services that exceeds Bill C-92’s standards this would not be considered to conflict or be inconsistent with the bill, the committee believes that this clause should be amended to make this point clear.
In addition, some Indigenous communities have expressed concern that clause 4 means that provincial or territorial legislation prevails in relation to child and family services. While the departmental officials explained that clause 4 only applies with an Indigenous community has not exercised its jurisdiction over child and family services, the committee believes that this clause should be amended to clarify this point.
Honourable senators, I must express again some disappointment that the government refused to accept well-reasoned and important amendments, as recommended unanimously by your committee and later by this chamber. I can only hope that this bill is the first step in addressing the concerns raised by the many witnesses who appeared before us, and I wish to offer my apologies to those witnesses who feel discouraged by this outcome. I want them to know that the Senate was listening and that the Senate cares about their input. It’s just too bad the government does not. Thank you.
Honourable senators, I rise today to speak to the message from the House of Commons on Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families.
I would first like to express my dismay in only learning this morning that debate would begin and end on this important message today. This process is so quick that the item will likely pass without ever having made it onto the Order Paper. This bill has caused much anguish to me, and it also has created division among Indigenous people.
Colleagues, I cannot stress enough the importance of this piece of legislation and the impact it will have on the lives of countless Indigenous children and their families. I would like to qualify that statement by saying that this impact will not necessarily be as constructive, helpful and positive as some would have you believe. As I wouldn’t necessarily classify debate on this piece of critical legislation as fulsome, I feel it important to reiterate and further supplement the concerns that I brought forward at third reading on this bill.
As an Indigenous senator and mother from Manitoba, I have an extremely strong investment in ensuring that this is done right. As many of you know, Manitoba is an outlier in terms of the scope and breadth of the impact that child apprehension has on First Nations. In my first speech, I said that Manitoba has the highest rate of children in care among Canadian provinces. Almost 90 per cent of children in care are Indigenous, yet only 17 per cent of Manitoba’s population is Indigenous. So when I look at these statistics and see that 60 per cent of children in care are permanent wards, it causes me concern about where we’re going.
First Nations communities have been in a state of devolution for the last 10 to 15 years with the Province of Manitoba. It was done under the guidance of provincial law and provincial policies, but apprehensions still increased.
Honourable senators, it comes as no surprise that children who grow up in care have significantly worse life outcomes as adults. They encounter high rates of unemployment, contact with the justice system and homelessness. It should be noted that negative impacts as a result of child apprehension are also inflicted on the mothers of these children. It is shown that these women see a significant deterioration in their health and social situation after apprehension, such as increased rates of depression, anxiety and substance abuse.
Honourable senators, a few weeks ago there was a news release in Manitoba regarding the abuse of children in care on one of the northern Manitoba reserves. This child care was under provincial jurisdiction, policy and instruments. It was not a First Nation child and family. The Assembly of Manitoba Chiefs have invested a great deal of time and resources into the CFS jurisdiction and legislation. They are widely recognized as being the furthest ahead in preparedness and movement on this file. The fear is that the work done as a direct result of the MOU with Canada will be for naught.
I feel it prudent to inform honourable senators that, only this morning, a meeting took place between Senator McPhedran, Grand Chief Dumas, Minister O’Regan, Parliamentary Secretary Dan Vandel, and a number of various staff members and myself. That meeting was held solely to discuss Bill C-92, its impact on Manitoba and AMC, and the path forward.
At the outset of the meeting, the minister began by indicating that the MOU that Canada had entered into with AMC would not be recognized under clause 3 of this bill. For reference, clause 3 speaks of upholding existing agreements. It had previously been indicated in this chamber that the MOU would have standing and would be protected by this section of the bill. The minister himself has confirmed that this is not so, as this MOU doesn’t have “the force of law.” That is a concept that is found in other accords, like self-government agreements, for example.
That was very troubling news to receive as it now seems as if the good work that Manitoba First Nations have done on this file could be lost.
Colleagues, the catch here is that there are several provinces that have shown zero interest in working with First Nations communities on transferring this authority. I have alluded to this in my third reading speech where I referenced the proverbial cash cow in play as provinces make money through apprehending our children as their wards.
I can attest that the Manitoba government — and I spoke to the minister on Tuesday — was never approached by the federal government for a coordination agreement. The minister also advised me that she has no knowledge of any plans of transferring the program.
In our meeting with Minister O’Regan today, we were told that AMC need not worry. After 12 months, their law will supersede all others. However, the biggest issue is one that the minister and his staff were unable to answer: What happens if the province isn’t willing to facilitate this transfer of authority?
Honourable senators, it is an undeniable truth that this legislation cannot move forward if the province does not share their data and information with Indigenous communities to indicate how many children are in care and whose children they are. We need that through the disclosure of the information which falls under provincial law and regulation. Although clauses 28 and 30 cover this reference agreement and information sharing, it is at the will of the province whether they choose to do so.
This morning, the minister confirmed that this bill cannot force disclosure of this information. Due to jurisdictional boundaries, Bill C-92 cannot enter into the provincial arena and force them to cooperate. Without a mechanism to facilitate the sharing of this information, the provinces that do not wish to be party to this transfer of authority essentially have the ultimate trump card. This morning, he said that Ontario, Saskatchewan and Manitoba were the provinces of concern.
Without this information, the concept of “bringing our children home,” which AMC has aptly named their legislation, will be lost.
Colleagues, it has also been incorrectly indicated that there were fractures and dissent among Manitoba First Nations with regard to this piece of legislation. That was largely due to the fact that a resolution passed by the Southern Chiefs Organization in Manitoba had been mischaracterized as supporting Bill C-92. In reality, this resolution merely stated that the SCO would collaborate with any southern First Nation who chose to pursue an agreement through this bill. This is certainly not to be misconstrued as being in support of the bill itself.
The AMC is the authoritative voice when it comes to Manitoba First Nations as they are the political body that speaks on behalf of Manitoba First Nations chiefs. The SCO and MKO conversely are administrative bodies that were created by AMC to exist in the political sphere. It’s important to understand the structure and dynamic.
Colleagues, during our meeting today, Minister O’Regan pointed to the six points of action that the government committed to on this file. One of these points states that their goal of:
. . . supporting communities to draw down jurisdiction and explore the potential for co-developed federal child welfare legislation . . .
Honourable senators, to use the words of the minister: Local problems are best solved by local solutions.
There can be no more local solution than the Bringing Our Children Home Act, as developed by AMC for Manitoba First Nations. Yet it is my belief that the shortcomings found through this legislation will make it so that First Nations in Manitoba will not and cannot draw down their jurisdiction on child and family services so long as they have an unwilling partner in the province.
I wanted to end by saying that many of my questions remained unanswered at the meeting this morning. I asked the minister, why did this happen? Why wasn’t there more discussion on how we could proceed to make this workable?
I believe that, as senators, we need to ensure that, in the future, bills regarding First Nations, Inuit and Metis peoples are given more debate and consideration. We deserve better. Thank you.
It was moved by the Honourable Senator Harder, seconded by the Honourable Senator Dyck, that in relation to Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families — may I dispense?
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
(Motion agreed to, on division.)
