An Act respecting First Nations, Inuit and Métis children, youth and families
Bill C-92: Context
The over-representation of First Nations, Inuit and Métis children in the child and family services system has been described as a humanitarian crisis; according to Census 2016 data, Indigenous children make up 7.7% of all children under 15 but account for 52.2% of children in foster care in private homes. The current approach to Indigenous child and family services too often sees Indigenous children separated from their families and communities, because of poverty, inter-generational trauma and culturally biased child welfare practices that result in apprehension.
Bill C-92 is consistent with the Government of Canada's ratification of the United Nations Convention on the Rights of the Child and commitments to implementing the United Nations Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission of Canada's Calls to Action, including Call to Action #4 which calls "upon the federal government to enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases".
This proposed legislation is the culmination of extensive engagements, which began with the January 2018 Emergency Meeting on Indigenous Child and Family Services involving Indigenous partners, provincial and territorial representatives, youth (including youth with lived experience), experts and advocates. At the meeting, the federal government committed to six points of action to address the over-representation of Indigenous children and youth in care in Canada and reform Indigenous child and family services. One of the points of action was a commitment to work with our partners to support communities to exercise jurisdiction in the area of child and family services, including exploring co-developed federal legislation.
During the summer and fall of 2018, the Government of Canada actively engaged with national, regional, and community organizations, with representatives of First Nations, Inuit and Métis, as well as Treaty Nations, self-governing First Nations, provinces and territories, experts and those with lived experience. Over 65 engagement sessions were held with nearly 2,000 participants. These sessions were part of the co-development of a legislative approach that sets the stage for comprehensive reform of Indigenous child and family services.
In the fall of 2018, engagement also occurred through a Reference Group with representation from the Assembly of First Nations, Inuit Tapiriit Kanatami, the Métis National Council, and the Government of Canada. The Reference Group recommended the development of high-level federal legislation that would both affirm the inherent right of Indigenous peoples and also include broad principles to guide the delivery of Indigenous child and family services. In-person engagement sessions were also conducted with Indigenous partners and provincial and territorial representatives on the proposed content of the Bill in January 2019.
Purpose and guiding principles
The Bill seeks to:
- affirm the rights of First Nations, Inuit and Métis to exercise jurisdiction over child and family services; and
- establish national principles such as best interests of the child, cultural continuity and substantive equality to guide the interpretation and administration of the Bill.
These principles would guide Indigenous communities and provinces and territories on the delivery of child and family services to keep families together and reduce the number of Indigenous children in care.
Best interests of an Indigenous child
The Bill outlines the following factors that would have to be considered when determining 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.
Priority given to preventative care
The Bill would emphasize the need for the system to shift from apprehension to prevention, with a priority given to services that promote preventive care to support families. It would give priority to services like prenatal care and support to parents. Also, the proposed Bill would clearly indicate that no Indigenous child should be apprehended solely on the basis or as a result of his or her socio-economic conditions, including poverty, lack of housing or related infrastructure, or state of health of the child's parent or care-giver.
Keeping Indigenous children and families together
The Bill seeks to preserve children's connection to their family, community and culture. As such, it would provide an order of preference for placement of an Indigenous child when apprehension is in the best interest of that child, as follows:
- 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.
This Bill stresses that Indigenous siblings should be kept together when it is in their best interest.
The Bill seeks to ensure that Indigenous children in care keep strong emotional ties with their family and stay connected to their communities and culture. For example, the Bill would establish an ongoing obligation to re-assess the possibility for an Indigenous foster child to reside with one of the child's parents or an adult member of his or her family. It would also provide that when Indigenous children are not placed with a member of their family, their attachment and emotional ties to their family are to be promoted.
Jurisdiction of Indigenous groups, communities or people
Currently, Indigenous families are bound by rules and systems that are not generally reflective of their cultures and identities. The goal of the proposed legislation is to change that by affirming the right to self-determination of Indigenous peoples to freely determine their laws, policies and practices in relation to Indigenous child and family services.
Central to the Bill is the process through which Indigenous groups or communities would exercise their inherent jurisdiction over child and family services under the proposed Act. The proposed process is not a "one size fits all" approach. The Bill is designed for Indigenous peoples to exercise partial or full jurisdiction over child and family services at their own pace. Depending on the path chosen, the exercise of their jurisdiction could result in their laws prevailing over federal laws and laws of provinces and territories.
Regardless of the approach taken, a tripartite coordinating agreement with Canada and the government of each province in which the Indigenous group is located will not be required for the Indigenous law to prevail over federal and provincial laws. An Indigenous group may:
- Give notice of their intent to exercise their jurisdiction to the Government of Canada and the government of each province in which the Indigenous group, community or people are located.
- Having submitted a notice of their intent, the Indigenous group would exercise their jurisdiction. However, it would not result in the Indigenous laws automatically prevailing over federal and provincial laws.
- Submit a request to the Government of Canada and the government of each province in which the Indigenous group, community or peoples are located to enter into a tripartite coordination agreement to exercise their jurisdiction on child and family services, and have their law prevail over federal, provincial and territorial laws.
- Within 12 months following the request, if a tripartite coordination agreement is reached, or no agreement is reached but reasonable efforts were made to reach an agreement, the laws of the Indigenous group and community would have force of law as federal law and would prevail over federal and provincial laws.
To facilitate the conclusion of a tripartite coordination agreement, at any given time, the Bill would enable the parties to benefit from an alternate dispute resolution mechanism to be established by regulations co-developed with Indigenous peoples, or to continue their discussions.
As a result, the proposed Bill would be flexible enough to accommodate the needs of all groups and communities and provide the space for them to adopt their own distinctions-based child and family services models.
The Bill would apply to child and family services provided to Indigenous children and families by any agency, whether directly by provinces and territories, or by First Nations, Inuit and Métis delegated agencies.
To ensure a smooth transition and implementation of the proposed Act, the Government of Canada would explore the creation of a national transition committee. Members could include representation from First Nations, Inuit, Métis, self-governing and Treaty Nations; provincial and territorial representatives; child advocates and others with relevant experience and knowledge to provide advice and recommendations. Such a committee could also assess gaps and recommend mechanisms to guide future funding methodologies.
Where needs arise, the proposed legislation includes regulation-making authority. These regulations would be developed in collaboration with the relevant Indigenous governing bodies, thus ensuring they reflect the distinctive needs and diversity of Indigenous peoples.
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