Tansi Nîtôtemtik,
Dr. Cindy Blackstock (left) and Dr. Hadley Friedland (right) at the Speaker's Panel hosted at the University of Alberta on November 7, 2019. Photo by the First Nations Children's action Research and Education Service.
Last week, the University of Alberta hosted a panel discussion with Dr. Cindy Blackstock, Executive Director of the First Nations Child and Family Caring Society of Canada, and Faculty of Law professor, Dr. Hadley Friedland. The topic of the panel was the federal government’s “Bill C-92: The Good, the Bad, and the Unknown.” Today’s post provides a brief overview of the panel.
The Good
Dr. Hadley Friedland began with an overview of Bill C-92[1], which comes into force January 1, 2020, calling it a much-needed change and response to decades of Indigenous advocacy and activism. Bill C-92 is the first federal legislation recognizing the inherent right of self-government set out in section 35 of the Constitution Act, 1982[2] in relation to child and family services.
The Act serves three main purposes:
- Recognition of inherent Indigenous jurisdiction in relation to child and family services (CFS). Indigenous groups will be able to legislate and enforce their own laws under the Act. The laws will prevail over federal and provincial laws to the same effect (subject to a few exceptions and to the application of the Charter and the Canadian Human Rights Act);
- Establishment of national principles in relation to the provision of CFS, including recognition of the principles of best interests of the child, substantive equality, and cultural continuity (Importantly, the Act defines specific terms like ‘Best Interests of the Indigenous Child’); and
- Contribution to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.[3]
Friedland highlighted a number of other provisions in the Act which promise to be positive sources of change to CFS delivery, including:
- provisions requiring prioritization of preventive and prenatal care over other services, based on the principle that preventing apprehension at birth is likely in the child’s best interests;
- provisions relating to placement and apprehension set out an order of priority in making placement decisions emphasizing the importance of keeping children as close to their parents and close relatives; and finally
- provisions protecting a child’s attachment and emotional ties to their family and community.
The Bad and the Unknowns
Both Friedland and Blackstock expressed concern about the use of vague language leading to uncertainty for Indigenous groups as they move to exercise their jurisdiction under the Act. Blackstock queried “What [is meant] by ‘Indigenous Governing Body’?... [the legislators] seem to have invented a whole pile of new words.” Friedland pointed out the absence of a number of tools which typically assist with legislative interpretation, including regulations, policy and practice guides, court interpretations and transition plans. Without these tools it is unlikely there will be further clarity before the Act comes into force in January.
Blackstock expressed the federal government could have gone further in the Act to promote self-determination and self-governance in Indigenous groups by drafting clearer legislation with more consultation from the Indigenous groups it affects. She identified the level of confusion created by the inherent uncertainty and vagueness of terms in the Act was simply unnecessary and could have been avoided.
Both experts also highlighted the lack of clarity and commitment regarding funding in implementing the provisions of Bill C-92. Blackstock stated Canada refused to include language in the Act that would obligate funding per the Canadian Human Rights Tribunal’s principles. For now, funding is limited to provincially delegated agencies. For Blackstock, the funding discretion within Bill C-92 is reflective of continued inequitable funding for Indigenous children and family, stating Canada needs to “stop normalizing racial discrimination as fiscal policy.”
Strategies for Interacting with Bill C-92
Friedland recommended the need for education around the existence of the Act and the rights provided under its provisions as well as for advocacy around interpretation of its provisions. In exercising jurisdiction under the Act, Friedland recommended as a starting point for Indigenous groups to think about what best interests of the child might mean for their communities and how they might want to define it. She also encouraged identifying priorities to clarify a starting point for action and to working together with other Indigenous groups to promote both resource and idea sharing. Blackstock’s key recommendation was to be wary of the uncertainty regarding funding and to negotiate your funding agreement with the government before taking action.
When asked how the Alberta provincial government should move forward, Blackstock advocated for the adoption of Jordan’s Principle and stated Alberta needs to become a better ally in addressing the “willful and reckless discrimination, not only with the federal government but also within its own borders”. She also called for more partnership with First Nations, Métis and Inuit leaders as they exercise their jurisdiction under Bill C-92.
Click the link to watch the full version of “Bill C-92: The Good, the Bad, & the Unknowns”[4]
Yours Truly,
Team ReconciliAction YEG
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[1] An Act respecting First Nations, Inuit and Métis children, youth and families, 1st Sess, 42nd Parl, 2019, (assented to 21 June 2019), SC 2019, c 24, online: CanLII <www.canlii.org/en/ca/laws/astat/sc-2019-c-24/latest/sc-2019-c-24.html?autocompleteStr=bill%20c-92&autocompletePos=2>.
[2] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[3] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, UN Doc A/RES/61/295 (2007), online (pdf) <www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>.
[4] UAlberta Law, “Bill C-92: The Good, the Bad, & the Unknowns” (7 November 2019), online (video): YouTube <www.youtube.com/watch?v=I7tMq0ta0D0&feature=youtu.be> [perma.cc/VL72-8232].
