Federal legislation as an important step toward reducing the number of Indigenous children in foster care


Date: November 30, 2018

The over-representation of First Nations, Inuit and Métis Nation children in the child welfare system is a humanitarian crisis. First Nations, Inuit and Métis Nation children make up 7.7% of the population under 15, but represent 52.2% of children in foster care in private homes.

Every day, Indigenous children are separated from their parents, families and communities, often due to poverty, poor housing conditions, and inter-generational trauma and culturally biased child welfare practices that result in apprehension. The Government of Canada, together with First Nations, Inuit, and Métis Nation partners, agree that this situation is unacceptable. Urgent action must be taken by all orders of government – federal, provincial, territorial – to support Indigenous families to raise their children within their families, homelands, and nations; to increase efforts to address the root causes of child apprehension; to reunite children with their parents, extended families, and communities and nations. Legislation is one step toward this.

Recognizing and protecting the best interests of the child

The United Nations Declaration on the Rights of Indigenous Peoples sets out the minimum standards, norms and rights applicable to Indigenous peoples and children. These standards, norms and rights are interconnected, inter-related and interdependent and serve as a framework for reconciliation in child, youth and family services.

The first five Calls to Action by the Truth and Reconciliation Commission (TRC) relate to child welfare. Call to Action #4 calls “upon the federal government to enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases and includes principles that:

  1.  “Affirm the right of Aboriginal governments to establish and maintain their own child-welfare agencies.
  2. Require all child-welfare agencies and courts to take the residential school legacy into account in their decision making.
  3. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate.”

 Also, in 2016, the Canadian Human Rights Tribunal (CHRT) ruled that Canada’s First Nations Child and Family Services Program was discriminatory and ordered Canada to immediately address the issue. The ruling prompted further discussion on the creation of federal legislation to recognize and affirm Indigenous jurisdiction that is distinctions-based as a way to ensure better care for Indigenous children.

In September 2018, the federal government announced that Inuit children are eligible under the federal Child First Initiative (CFI) program. This followed a commitment made in June 2018, during a meeting of the Inuit-Crown Partnership Committee in Inuvik, Northwest Territories, to work with Inuit, as well as provinces and territories, to develop a long-term Inuit-specific CFI framework consistent with Inuit rights and self-determination.

Working in cooperation, partnership and mutual respect towards reform

  •  In January 2018, the federal government held a National Emergency Meeting with Indigenous peoples, representatives of Indigenous peoples and nations, the Assembly of First Nations, Inuit Tapiriit Kanatami and the Métis National Council, Indigenous service organizations, experts and practitioners, elders, grandmothers and youth with lived experience. At the meeting, the Government of Canada committed to Six Points of Action that include the potential for federal legislation, as called for in TRC Call to Action #4.
  •   A resolution passed in May of 2018 by the Assembly of First Nations supported the establishment of federal-enabling legislation for First Nations. An Interim Report by the National Advisory Committee on First Nations Child and Family Services also called for new federal legislation.
  • During the summer and fall of 2018, the Government of Canada has been actively engaging with national, regional, and community organizations representatives of First Nations, Inuit and the Métis Nation, as well as Treaty Nations, self-governing First Nations, experts and those with lived experience. This engagement included activities with community leaders, representatives of the Assembly of First Nations, the Inuit Tapiriit Kanatami and the Métis Nation, Indigenous service organizations, provinces and territories, experts, child advocates, elders, youth and women. Over 65 engagement sessions have been held with nearly 2,000 participants. These sessions are part of the co-development for a legislative approach that sets the stage for comprehensive reform.

Indigenous peoples driving change

Some of the feedback given to the federal government during these extensive engagement sessions included the need to address principles, including those embodied in the United Nations Convention on the Rights of the Child (UNCRC), such as:

  • In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration. (UNCRC, Article 3)
  • The child has the right to know and be cared for by his or her parents and extended family. Where separation occurs, family reunification must be the primary goal.
  • In all actions and decisions concerning children, the parents should expect due process; be notified in advance of potential child apprehension; and be given an opportunity to participate in proceedings.
  • Birth alert systems currently being used to trigger the apprehension of an infant should be avoided as much as possible.  Instead, emphasis should be given on a range of prenatal services and preventive care, provided this meets the requirements of child safety.
  • Indigenous peoples should not be subjected to any act of genocide or violence, including forcibly removing children of the group to another group. Indigenous peoples have the right not to be subjected to forced assimilation or destruction of their culture. (United Nations Declaration on the Rights of Indigenous Peoples, Articles 7&8)
  • Due regard should be paid to continuity of a child's upbringing in the child's cultural and linguistic background. In any placement of an Indigenous child, preference should be given to placement with (1) family; (2) a member of the child’s extended family; (3) other members of the Indigenous child’s community and nation; or (4) other Indigenous families; (5) non-Indigenous families.
  • Indigenous families and communities have the right to exercise shared responsibility for the upbringing, training, education and well-being of their children. Where Indigenous governments have enacted child welfare laws, these should have precedence.
  • Children should not be apprehended on the basis of economic poverty, substandard housing or the health issues of parents or children. The underlying social determinants of health should be addressed to prevent further child apprehension.
  • The federal government should support the establishment of guiding principles for Indigenous child wellness and, in collaboration with provinces and territories, publish annual reports on the number of First Nations, Inuit, and Métis Nation children in care.

Provincial / territorial involvement

A productive and on-going dialogue with provinces and territories has taken place during the summer and early fall, as part of the broad engagement that informed the development of options for federal legislation. Concerted dialogue with provincial and territorial partners on the impacts and on various aspects of implementation of the legislation will remain central to the reform of child and family services.  Discussions will continue to take place before the bill is introduced and during the transition and implementation phases of legislation.

Working in partnership on co-developed legislation

In October 2018, Indigenous Services Canada participated in a Reference Group consisting of delegates from the Assembly of First Nations, Inuit Tapiriit Kanatami and the Métis National Council. The group discussed legislative options to improve circumstances for Indigenous children, youth and families, taking into account reports from the engagement sessions.
Today, together with Indigenous partners, the Government of Canada has committed to introducing legislation to support the well-being of section 35 rights-bearing Aboriginal Peoples, including First Nations, Inuit, and Métis Nation children and families. The goal of the proposed legislation is to:

  •  affirm that the inherent right to self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes legislative authority in relation to child and family services;
  •  affirm that the legislation shall provide for a distinctions-based approach, consistent with the Nation-to-Nation, Inuit-to-Crown and Government-to-Government relationships with Canada;
  •  affirm the right of the respective authorities of First Nations, Inuit and the Métis Nation to create laws and policies in relation to child and family services while also recognizing their distinct and diverse rights, histories and practices,
  •  acknowledge that there is no ‘one size fits all’ model or approach but rather a range of models that can be freely determined by Indigenous peoples through their own representatives and governments;
  •  include a comprehensive best interest of the child provision for First Nations, Inuit and the Métis Nation; and
  •  establish guiding principles to ensure Indigenous children, youth and families receive equivalent care and outcomes as other Canadian children, youth and families.

Indigenous Services, the Assembly of First Nations, Inuit Tapiriit Kanatami, and the Métis Nation state that they will:

  • work collaboratively, transparently and on a distinctions-basis to co-develop federal legislation to support the well-being of First Nations, Inuit, and Métis Nation children and families. Content of the legislation will reflect the distinct geographic, political, legislative, and cultural contexts impacting child and family wellness;
  • co-develop this legislation in a way that supports the full and meaningful implementation of the TRC’s Calls to Action and the United Nations Declaration on the Rights of Indigenous Peoples and the federal government’s commitment to a Nation-to-Nation, Inuit-Crown and Government-to-Government relationship; and
  • work collaboratively on options to build the capacity of interested Indigenous communities, governmentsand organizations in their transition towards exercising jurisdiction or greater control and responsibility over child and family programs and services.

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