Speech from Minister Jane Philpott - AFN Special Chiefs Assembly on Federal Legislation

May 2, 2018 - Hilton Lac Leamy, Gatineau, QC

As delivered

Thank you very much, Harold. Friends and colleagues, the topic that I want to address with you this morning is a serious one and that's why I really hope that I will have your attention as we discuss something that is of the utmost importance to all Canadians and to all First Nations in this county, and that is the matter of children. And specifically I want to focus my comments here at the Special Chief Assembly on Legislation on the possibility, the potential for co-created child welfare legislation, and the possibility that such legislation could support the incredibly important reform work that needs to happen around child and family services that could lay down and affirm, protected by federal law, the jurisdiction that First Nations have over child and family services and could ensure in law the obligations for funding thereof.

Many of you have heard me say before that the state of child welfare in this country for Indigenous peoples is a humanitarian crisis. I was mocked by some for using what was potentially inflammatory language around this. And then I started to talk to you about it and hear from you how you felt about that. And you said back to me you're absolutely right. It is a humanitarian crisis. And so I say that today with a firm conviction that it is not a stretch to say that this is a crisis.

Across the country we know that the numbers are very, very clear. We need better data but the data we know is clear: Indigenous children aged 0 to 14 make up 7.7% of the children – all children in this country. But if you look at children in the child welfare system across the country, only taking into account the children in private homes, not taking into account children in group homes, Indigenous children make up 52% of those children. This is a humanitarian crisis.

Today and every single day in this country, a baby or child is taken away from its parents. People are walking into hospitals where mothers have a birth alert on their chart and the mother may not even know that the birth alert is there. There appears to be no obligation to a – to pre-inform her or the father that there is a birth alert on the chart for reasons that are completely beyond that mother's control that she may have grown up in foster care herself and therefore she's doomed to failure with that birth alert, and someone can on that basis without proving that they have tried every other alternative can take that child from her. This is happening today. It's happening every single day in our country.

You know what the result of that is. You know the links between children brought up in child welfare who are severely over represented amongst the missing persons in this country who are over represented amongst the homeless in this country and who go on to incarceration and all of the other results of the trauma that comes from being separated from your family.

I have met many families who have been separated and have heard their stories that have moved me deeply. I've also had the opportunity to see what happens when families get reunited. One of those families I met in Winnipeg just a few weeks ago. I will never forget seeing this beautiful couple, a mother and father and their four children. They told me what happened to them. They said that they had a toddler, a three-year-old, who died very tragically because the child had a medical crisis that happened and they were so far from the health centre where they could get help for this three-year-old that that toddler died.

And what was the response of our system? Not to pour out support for this family who so tragically lost their three-year-old. No! The response to the system was to take all four other children away from those parents. What kind of a country are we living in when that's happening? We need to change this and I'm happy to say that for this family there is a good news result. The First Nations Family Advocate Office in Winnipeg supported this family and was able to make sure that those four children were reunited with their parents and today they're together.

But there are countless others. We don't even know the number. We, the National Chief and I, estimate that there may be 40,000 Indigenous children who are separated from their families today. You know that this is deeply linked to other policies in the past. And in fact, it was the Truth and Reconciliation Commission's final report that said this and I quote:

"The doors are closed at the residential schools but the foster homes still exist and our children are still being taken away. Canada's child welfare system has simply continued the assimilation that the residential school system started."

Friends and colleagues, the status quo as it relates to Indigenous child welfare is outrageous, but I firmly believe and I think you believe too that this is solvable. So what has happened so far? Working with many of you in this room, I believe we are making progress. Most of you know, I think, that we called an emergency meeting on this matter in January. We called together First Nations, Inuit and Métis leaders from across the country. We were joined by elders. We were joined by youth – particularly youth who had been raised in the foster care system.

There was representation of First Nations child and family services agencies and child welfare experts. And at that meeting the federal government tabled six points of action, six commitments that we made to you and others. The first one was that we made it very clear that we are fully implementing all of the orders of the Canadian Human Rights Tribunal. And we are working very closely with the Assembly of First Nations and all of the other interveners in that tribunal to make sure that every one of those orders is fulfilled, including making sure that we make clear that there should be no discrimination. There will be no discrimination and that the actual costs for child and family services agencies are paid not only going forward but going backward to January of 2016.

And to that end, I hope you saw that in our most recent federal budget that there was 1.4 billion dollars to make sure that we close all of those gaps for child welfare. I also know that the second commitment that we made was around focusing on prevention. So the effect of that money is – and the effect of the message that went with the money was to say you agencies need to be able to pay for the actual cost of preventing the apprehension of children. No more flowing money according to how many children you apprehend.

It's a horrible system that we have in place still in many places. Thousands of dollars every month going to non-Indigenous families and the more children are apprehended, the more money flows. That has to change. We have to move the system across the country in every agency to make sure the focus is on prevention and not on apprehension.

The third commitment we made was to talk with you about the possibility of co-created federal legislation and that's what we're talking about today. And that legislation would affirm jurisdiction and I'm going to talk a bit more about that in a minute.

The fourth area that we committed to was that we would have a distinctions-based approach because we recognized that the issues are different for First Nations, Inuit and Métis and I am working closely with Inuit and Métis on the issues that affect them as well.

The fifth commitment was a data and reporting strategy. I hope you all know and have noticed that the first five calls to action of the Truth and Reconciliation Commission are on child welfare. And the Commissioners will tell you that's not a mistake. That's not a random order. It's not without reason that those first five calls for action are around child welfare. It is to reflect the importance of this and one of those calls relates to the need for better data for national reporting and we are working on that.

And the sixth commitment of ours is around trilateral technical tables in all of the provinces and territories to address this.

So each of those points we are making progress on. But let me come back to the Truth and Reconciliation Commission and one of the particular calls to action, number 4. And I want to go through it with you now.

Call to action number 4 calls upon the federal government to enact Aboriginal child welfare legislation that establishes national standards and includes principles that do three things:

Number 1: Affirm the right of Aboriginal governments to maintain their own child welfare agencies.

Number 2: Require all agencies and courts to take the residential school legacy into account in their decision making. And

Number 3: To require that placements of Aboriginal children into care be culturally appropriate.

We have an obligation to respond to that call to action. And so I want to know your views and I want to know them clearly about the possibility of co-created legislation that could respond very specifically to that call to action number 4, that could affirm rights, the rights that are clearly laid down in the United Nation's Declaration on the Rights of Indigenous Peoples, that are laid down in the United Nation's Convention on the Rights of the Child.

Co-created legislation could support First Nations jurisdiction. You have jurisdiction but laying it down in federal legislation could say loudly to other orders of government that that jurisdiction holds and has to be respected. It can also do what we see in other governments like the United States where federal legislation affirms the role of Indigenous laws and courts and recognizes the potential role of First Nations courts, for example.

We are seeing across the country that there are many of you who are already doing the work to exercise the jurisdiction that you have. I often hold up the work in Splatsin for example where there is a bylaw that under Section 81 of The Indian Act and we are now working on a tripartite memorandum of understanding with Splatsin and to support the exercise of jurisdiction.

We're seeing in the – in places like Carcross/Tagish and the Anishinabek Nation that they are developing or have developed in many places child wellbeing laws and there are negotiations underway with the appropriate provinces and territories and the federal government on supporting the implementation of those laws. Places like the Assembly of Manitoba Chiefs, we've signed a Memorandum of Understanding on supporting the recognition and affirmation and implementation of jurisdiction over child welfare.

What's the end goal? Well, one of the end goals that the TRC says is to reduce the number of children in care. But the real end goal is that children, First Nations children need to be with their families. They need to be on their lands, surrounded by their language, with the grandmas and grandpas and aunts and uncles, learning about their culture. And that is the end goal, children and families together.

But I want to make it very clear that we are not in a world where this federal government is going to impose legislation. If we're going to move forward on legislation, it has to be co-created and it needs your support. And so that is the question that I put to you in assembly. If you believe that the affirmation of the rights of children and families should be laid down in co-created federal law, and if you want that done by the next federal election, I need to hear from you so that we can move forward together on next steps.

I believe we have a critical opportunity before us. I often say when I meet with chiefs and others in community, but if we were leaders at the height of residential schools what would we do? I believe most of us would say stop! Stop it right now! Stop taking our children and the children that you've got get them back home as quickly as you possibly can. So we're in that opportunity now where we should say the same. I believe we should say loudly and clearly no more. No more apprehension of Indigenous children, unless there is absolutely no other option to keep that child safe, unless there is no way that we can provide the support that parents need to address their health issues, their housing issues, their poverty issues. No more taking children unless there is no other family member or community member in that child's culture that's willing to care for the child and to be supported to do so.

For the children and the families that are separated now, let's say bring your children home. Bring those children home. The Commissioners of the Truth and Reconciliation Commission asked us, they called on us at the federal government to implement legislation to make this happen. And so I say to you today for the children taken, for the parents left behind, I believe we have a duty to respond and I want to hear from you. Merci beaucoup. Chi-miigwetch.