Federal government introduces new child welfare legislation

Proposed legislation praised by some Indigenous groups, criticized by others

Perry Bellegarde addresses the FSIN spring assembly in the Senator Allen Bird Memorial Centre in Prince Albert. Arthur White-Crummey/Daily Herald.

Indigenous groups are praising new legislation introduced by the federal government that would affirm Indigenous peoples’ inherent right to exercise jurisdiction over child and family services and set out new criteria for when a child can be placed into care.

Bill C-92,  An Act respecting First Nations, Inuit and Métis children, youth and families was introduced last Thursday. According to the federal government, it came out o “extensive” engagements, which began in January 2018 with the emergency meeting in Indigenous Child and Family Services. At that meeting, the federal government committed to six points of action to address the over-representation of Indigenous children and youth in care and reform Indigenous child and family services. One of the points of action was to work with Indigenous communities so they could exercise jurisdiction in the area of child and family services.

Bill C-92 sets out principles that include the best interests of the child, cultural continuity and substantive equality.

“These principles would guide how services are delivered to Indigenous children in all jurisdictions and regions of the country while aiming to reduce the number of children in care,” the federal government wrote.

The bill seeks to affirm the inherent rights of Indigenous people to exercise jurisdiction over Indigenous family services and support communities pursuing self=determination and making their own laws regarding child and family services. It is also designed to increase efforts to address the root causes of child apprehension and reunite children with their parents, extended families, communities and nations.

The bill would give priority to services such as prenatal care and support to parents. It would also indicate that no Indigenous child should be apprehended solely on the basis of socio-economic conditions such as poverty, lack of housing or related infrastructure, or the state of health of the child’s parent or caregiver. It would also provide an order of preference for placement of an Indigenous child when apprehension is the best option in an order that favours family and community connections.

That order is:

•    one of the child’s parents;

•    another adult member of the child’s family;

•    an adult who belongs to the same Indigenous group, community or people;

•    an adult who belongs to an Indigenous community or people other than the one to which the child belongs, and

•    any other adult.

The proposed legislation also sets out the following factors to consider what is in the best interest of an indigenous child:

•    the child’s physical, emotional and psychological safety, security and well-being;

•    the child’s cultural, linguistic, religious and spiritual upbringing;

•    the attachment and emotional ties between the child and significant persons in the child’s life;

•    the child’s views and preferences;

•    the child’s needs and level of development;

•    the importance to the child of an ongoing, positive relationship with his or her family, community and the Indigenous group to which he or she belongs; the importance of stability for the child; connection to the child’s language and territory;

•    any plans for the child’s care;

•    any family violence and its impact on the child; and

•    any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Any Indigenous group wishing to take jurisdiction over child and family services can give notice of their intent to exercise their jurisdiction or submit a request to the federal and provincial government. Under the first option, the Indigenous group would exercise their jurisdiction, but their laws would not automatically prevail over federal and provincial laws. Under the second option, the group would attempt to negotiate an agreement with the other levels of government, and once an agreement has been reached (or a reasonable effort to reach an agreement has been made), the laws of the Indigenous group would have the force of law as federal law, and would prevail over existing federal and provincial legislation.

The Assembly of First Nations (AFN), Inuit Tapiriit Kanatami and Métis National Council all praised the decision.

“This legislation is first and foremost about First Nations children and their safety, their security and their future,” said AFN National Chief Perry Bellegarde.

“The tragedy of thousands of First Nations children in care tells us we need a new approach. This legislation will recognize First Nations jurisdiction so they can build their own systems based on their own governance, laws and policies. Our focus has to be on prevention over apprehension, and keeping children close to their cultures and families.”

“Time is of the essence in acting on the crisis of Métis children in care and ensuring the right of Métis governments to establish and maintain their own child-welfare agencies,” Métis National Council president Clément Chartier added.

“The proposed legislation is a necessary and long overdue first step to achieve that.”

The Federation of Sovereign Indigenous Nations (FSIN) also praised the move. The Saskatchewan-based group has long criticized the provincial child welfare system as failing First nations children and families.

“We know what the Province is currently doing now doesn’t work and only creates poor outcomes for the children in care,” FSIN vice chief David Pratt said in a written statement.

“We look forward to this long overdue legislation that will address the issue of our children in care. Our leadership has been clear and consistent on jurisdiction over our children and bringing them home to reconnect to the land, culture, history and language.  This legislation will undo the painful legacy of the residential school system and the continued separation of our families.”

Not everyone, though, was happy.

The Congress of Aboriginal Peoples, which advocates for off-reserve, Métis and non-status Indigenous peoples, said they were “outraged” with the way the legislation was structured.

“This is a piece of legislation that was co-developed with only three of the five National Indigenous Organizations, excluding CAP, and fails to address the unique needs and interests of the off-reserve, non-status, and Métis children living across Canada,” they said in a written statement.

“All Indigenous children should be supported by this government’s welfare legislation, without facing discrimination based on their status or residence”, argued National Chief Robert Bertrand.

“We have the 2016 CAP Daniels decision that clarifies the federal government is responsible for Métis and non-status Indians – this includes our children.”