“Life-changing” child-welfare legislation will shift jurisdiction to Indigenous communities

On February 28, Indigenous Services Minister Seamus O’Regan introduced the long-awaited Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families. The legislation was tabled in the House of Commons with partners from the Assembly of First Nations, Inuit Tapiriit Kanatami and the Métis National Council in attendance.

The bill – developed with input from First Nations, Métis and Inuit communities – will recognize their jurisdiction over child and family services provided to their populations.

“The bill will finally put in law what Indigenous peoples have been asking of governments for decades: that their inherent jurisdiction over child and families services be affirmed so that they can decide what is best for their children, their families, and their communities,” O’Regan’s office said in a statement.

In December, Prime Minister Justin Trudeau promised the legislation would be tabled in the last week of January, but delays had the bill’s proponents worrying that not enough sitting time would remain in Parliament to get it passed before the fall elections. Although it was tabled a month later than planned, O’Regan said he is confident Parliament will pass the legislation before it is dissolved in October.

“An entire generation of Inuit, Métis and First Nations children and youth are counting on us to get this right. We cannot let these children down. We will not let these children down,” O’Regan said.

The bill prioritizes a child’s best interests throughout the entire decision-making process in the provision of family and child welfare services. Guiding principles stress “cultural continuity” for a child’s wellbeing, which the bill identifies as “the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples.”

To this end, the legislation directs child welfare services to be provided in a manner that “does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people.”

The bill also signals a shift from apprehension to prevention, with a priority given to services that promote preventive care, prenatal care, and support to parents.

The bill also sets out the process by which Indigenous-led governing bodies can assert their jurisdiction over the provision of child and family services in their communities.

Under the proposed law, an Indigenous group seeking to take over its child welfare system has two options. The first involves simply giving notice to Ottawa that the group intends to exercise its legislative authority in relation to child and family services.

The second option involves making a request to the minister and to the respective province to reach a “co-ordination agreement” in relation to the exercise of legislative authority. If a deal can’t be struck within 12 months following the request, then the laws of the Indigenous community gain the same force as federal or provincial laws.

Mary Ellen Turpel-Lafond, the former British Columbia representative for children and youth, hailed the legislation as “one of the most important bills in the past generation.”

Turpel-Lafond, who is also director of the University of British Columbia’s Indian Residential School History and Dialogue Centre, said the new approach is about “reconnecting children and families, making sure First Nations parents, kinship and caregivers and others are making decisions, and not in an imposed system.”

Yet despite many positive reactions, some see the legislation as little more than a symbolic gesture.

Andrea Auger, who is Reconciliation and Research Manager at the First Nations Child and Family Caring Society, says the lack of provisions in the legislation to ensure stable and equitable funding to child welfare agencies operating in Indigenous communities means many of the loftier goals risk going unimplemented.

“Not having a provision for funding in the legislation could lead to this case-by-case approach again which could end up being discriminatory,” Auger told the Nation.

The FN Caring Society was helped bring a 2016 case to the Canadian Human Rights Tribunal, which ultimately concluded that the government’s First Nations Child and Family Services (FNCFS) program discriminated against First Nations children by underfunding child welfare services on-reserve.

In its statement, the minister’s office claimed to have “changed the policies to fund the actual costs of First Nations-led child and family services agencies, meaning that they can focus on prevention and services to better support families and reduce the number of children in care.”

First Nations Child and Family Services Program funding under Indigenous Services Canada is about $1.1 billion in 2018-2019.