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Spotlight on: 21 Things You May Not Know About the Indian Act by Bob Joseph

Image retrieved from CBC Books 

Tansi Nîtôtemtik,

This week’s reflection post highlights Bob Joseph’s Canadian bestseller, 21 Things You May Not Know About the Indian Act.[1] Bob Joseph is an initiated member of the Hamatsa Society, and he inherited a Chief’s seat in the Gayaxala (Thunderbird) clan.[2] Joseph is also the founder and President of Indigenous Corporate Training Inc, which provides training and development in Indigenous relations on both a national and international level.[3]

Bob Joseph had the idea to write 21 Things You May Not Know About the Indian Act after a viral article[4] he wrote in 2015 for his blog Working Effectively with Indigenous Peoples received enormous response online.[5] The book expands on the original article by providing background and commentary on 21 “rules, regulations and prohibitions” created by the 1876 Indian Act which remains in force today with substantially the same framework.[6] If you would like to read the provisions of the Indian Act, you can find it here.[7] One of the aims of the book is to educate non-Indigenous Canadians on how deeply the Indian Act continues to penetrate and control most aspects of the lives of First Nations people.[8] Bob Joseph writes that an understanding of the Indian Act and the ways it continues to direct the lives of and constrain opportunities for First Nations is essential if true reconciliation between Indigenous Peoples, the federal government and non-Indigenous Canadians is going to be achieved.[9]

The first part of the book includes a contextual discussion of each of the ‘21 Things’ and describes the historical place and timeframe of each rule or prohibition. Some of the ‘21 Things’ continue to exist in present day, such as the imposed elected chief and band council system[10] and the maintained reserves system as segregated places for the habitation of Indigenous groups and Peoples.[11] However, others have been delegated to history. For example, the Indian Act was the vehicle for the creation of residential schools, the last of which closed in 1996.[12] Another example is the process of voluntary and enforced enfranchisement which ended only recently in 1985.[13] In large part, the enfranchisement occurred through the process of the status system, the system under which Indigenous Peoples registered as “status Indians” and which precluded  them from being considered “people” according to Canadian laws until the Indian Act was revised in 1951.[14]

The second part of the book is titled “Dismantling the Indian Act” and provides a discussion around the role of Indigenous self-government in community healing following the roughly 150 years of damage which ensued as a result of the Indian Act.[15] Joseph believes self-government would have a significant impact on the social and economic well-being of Indigenous groups and communities.[16] He also describes the common elements of self-government, which would include provisions for structure and accountability for Indigenous governments; revenue from land-based resources; and financial resources to fund, for example: education, police services, law-making powers, child welfare, and land and resource governance.[17]

In his final chapter, Bob Joseph contends that a country committed to reconciliation no longer requires the Indian Act.[18] Instead, the focus should be on dismantling the Indian Act and creating a self-governing future for Indigenous Peoples outside its provisions.[19] Dismantling the Indian Act will also allow Indigenous Peoples to pursue the objectives of self-determination and self-reliance.[20] Joseph defines ‘self-determination’ as “the right to decide who your people are”.[21] Currently, the Indian Act imposes rules governing membership, as well as the requirement of bands/First Nations to maintain a registry of community members based on the membership rules.[22] In the absence of such requirements, “[s]elf-determination would allow for both status and non-status members to be part of a self-governing community, which would be driven by the communities’ own membership code.”[23] Self-reliance means “getting out of the perpetually underfunded arrangements currently offered by Canada.”[24] Joseph calls for Indigenous communities to have the right to collect their own revenue resources, such as collecting property taxes, and royalties and taxes from development on their lands.[25] This would allow groups to run efficient and self-sustaining communities and allow participation in the economic mainstream.[26]

If you would like to learn more about Bob Joseph and his educational resources, please visit his website here.[27]

Yours Truly,

Team ReconciliAction YEG

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[1] Bob Joseph, 21 Things You May Not Know About the Indian Act: Helping Canadians Make Reconciliation with Indigenous Peoples a Reality (Port Coquitlam: Indigenous Relations Press, 2018).

[2] Indigenous Corporate Training Inc, “Bob Joseph”, (last visited 27 January 2020), online: Indigenous Corporate Training Inc <www.ictinc.ca/ict-team/bob-joseph>.

[3] Ibid.

[4] Bob Joseph, “21 Things You May Not Have Known About The Indian Act” (02 June 2015), online (blog): Working Effectively with Indigenous Peoples <www.ictinc.ca/blog/21-things-you-may-not-have-known-about-the-indian-act->.

[5] Supra note 1 at 13. Note: Page numbers reference the Ebook by Bright Wing Books.

[6] Ibid at 16.

[7] RSC 1985, c I-5, online: CanLII <www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-5/latest/rsc-1985-c-i-5.html?autocompleteStr=indian&autocompletePos=1#document>.

[8] Ibid.

[9] Supra note 1 at 13.

[10] Ibid at 21.

[11] Ibid at 25-26.

[12] Ibid at 41.

[13] Ibid at 27.

[14] Ibid.

[15] Ibid at 63-70.

[16] Ibid at 67.

[17] Ibid at 68.

[18] Ibid at 71.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Indigenous Corporate Training Inc (last visited 27 January 2020), online: Indigenous Corporate Training Inc <www.ictinc.ca>.

Governance Issues Arising out of The Indian Act

Photo retrieved from <http://www.biographi.ca/en/theme_macdonald.html?p=22>

Tansi Nîtôtemtik,[1]

The Indian Act has long been a contentious piece of legislation. When it was enacted by the Canadian federal government in 1876, its aim was to “assimilate [First Nations] into Canada.”[2] It was meant to be a “temporary set of laws until Native peoples were successfully assimilated.”[3]

Who Falls Under the Indian Act

The Indian Act applies only to First Nations peoples, excluding Métis, Inuit and other Indigenous groups.[4] The Act “outlines government obligations to First Nations peoples, and determines “status” – a legal recognition of a person’s First Nations heritage, which affords certain rights such as the right to live on reserve land.”[5] The Indian Act gives “Indian Status” to those who fall within its purview, referring to a “specific legal identity of an Aboriginal person in Canada.”[6]  Being deemed to have “Indian Status” means that you “may be eligible for benefits, rights, programs and services offered by the federal and provincial or territorial governments.”[7]

Governance Issues Arising Out of the Indian Act

The Indian Act established the “on-reserve band system that allows the Crown to control their movement, their economic activity and their legal rights.”[8] So what does this mean for Indigenous self-governance? For one, it gives less freedom to Indigenous groups. As stated above, the Indian Act was originally meant to be temporary. The government originally intended to relinquish control over these fundamental aspects of sovereign nations. However, this was never realized.  

The federal government effectively took control from First Nations and have been legislatively enforcing their idea of how the fundamental aspects of life should be implemented. These aspects include, among others: “Management of Indian Moneys,” “Loans to Indians,” “Treaty Money,” “Wills” and “Money to Infant Children.”[9] 

These are fundamental components of a self-governing society and have inhibited First Nations’ ability to self-govern and to be a sovereign nation.

Until Next Time,

Team ReconciliAction YEG

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[1] Note: This post uses some language that is no longer considered acceptable. For a full discussion on the use of language, please visit our post Terminology to Use and Avoid: https://ualbertalaw.typepad.com/faculty/2019/09/elements-of-indigenous-style-terminology-to-use-and-avoid.html.

[2] Indigenuos Foundation, “Indian Status,” online: www.indigenousfoundations.artb.ubc.ca/indian_status [Indigenous Foundation].

[3] John Ahni Schertow, “How the Indian Act made Indians Act Like Indian Act Indians” (3 June 2007) Intercontinental Cry, online: <www.intercontinentalcry.org/>.

[4] Canadian Encyclopedia, “Indian Act” (23 October 2018), online: <www.thecanadianencyclopedia.ca/en/article/indian-act>.

[5] Ibid.

[6] Indigenuos Foundation, supra note 2.

[7] The Government of Canada, “What is Indian Status?” online: <www.sac-isc.gc.ca>.

[8] Doug Beazley, “Decolonizing the Indian Act”(18 December 2017), CBC/ABC National & The Canadian Bar Association, online: www.nationalmagazine.ca/en-ca/articles/law/opinion/2017/decolonizing-the-indian-act>.

[9] Indian Act, RSC 1985 c I 5.

Overview of The Indian Act

Image retrieved from CBC News:

<https://www.cbc.ca/news/indigenous/21-things-you-may-not-know-about-the-indian-act-1.3533613>

Tansi Nîtôtemtik,

The Indian Act[1], which was enacted in 1876, allows the government to control many elements of Indigenous life, including Indian status, land, resources, wills, education, band administration, and more.[2] Throughout history, the Indian Act has been “highly invasive and paternalistic.”[3] Inuit and Metis are not governed by the Indian Act.[4] Originally, the Indian Act had a clear intention to assimilate First Nations into Western society following colonization. For example, First Nations who earned a university degree and women who married non-status men would automatically lose their Indian status.[5] The Act also inhibited some traditional practices.[6] In 1884, the federal government banned the potlach under the “Potlach Law”.[7] The potlach was an important ceremony for western coastal First Nations which distributed wealth.[8]

In 1951, following the Second World War, Canada amended the Indian Act.[9] These amendments were part of a growing movement to accept human rights across Canada and stemmed from Canada’s commitment to the United Nations’ Universal Declaration of Human Rights.[10] In these amendments, the most oppressive sections were removed or amended.[11] For example, the potlach and other banned cultural practices was no longer banned.[12] Additionally, First Nations Peoples were allowed to enter pool halls, appear off-reserve in ceremonial dress, hire legal counsel, and women were allowed to vote in band councils.[13] In 1969, the federal government proposed the “White Paper” policy which was intended to create equality by abolishing the Indian Act and dismantling the Department of Indian Affairs.[14] This proposal was opposed by many First Nations groups who felt that although the Indian Act was deeply flawed, removing the legal distinction as Indian people would be detrimental.[15]

In essence, the Indian Act is antiquated and requires reform as we move into the age of reconciliation, following the release of the Truth and Reconciliation Commission’s Final Report in 2015. This is a highly controversial piece of legislation which has received many critiques over time. The Indian Act, however, affirms the unique relationship between Canada and First Nations Peoples.[16] This is one of the main reasons that there has been push back on abolishing the Act. 

Until Next Time,

Team ReconciliAction YEG

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[1] Note: This post uses some language that is no longer considered acceptable. For a full discussion on the use of language, please visit our post “Terminology to Use and Avoid”: <https://ualbertalaw.typepad.com/faculty/2019/09/elements-of-indigenous-style-terminology-to-use-and-avoid.html>.

[2] Indigenous Foundations, “The Indian Act”, University of British Columbia (website), online: <https://indigenousfoundations.arts.ubc.ca/the_indian_act/> [The Indian Act]; Isabelle Montpetit, “Background: The Indian Act”, CBC News (website), online: <https://www.cbc.ca/news/canada/background-the-indian-act-1.1056988> [Isabelle Montpetit]; John Ahni Schertow, “How the Indian Act Made Indians Act like Indian Act Indians”, Intercontinental Cry (website), online: <https://intercontinentalcry.org/how-the-indian-act-made-indians-act-like-indian-act-indians/> [John Ahni Schertow].

[3] The Indian Act, ibid.

[4] Indigenous Foundations, “Indian Status”, University of British Columbia (website), online: <https://indigenousfoundations.arts.ubc.ca/indian_status/> [Indian Status].

[5] Isabelle Montpetit, supra note 2.

[6] Ibid.

[7] The Indian Act, supra note 2.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid; John Milloy, Indian Act Colonialism: A Century of Dishonour, 1869-1969 (2008), online:  <http://www.fngovernance.org/ncfng_research/milloy.pdf> [John Milloy].

[13] The Indian Act, supra note 2.

[14] Ibid; John Milloy, supra note 12.

[15] The Indian Act, supra note 2; John Milloy, supra note 12; John Ahni Schertow, supra note 2.

[16] The Indian Act, ibid.

Section 91(24): Federal Control Over Indigenous Policy Still Has Consequences

Image retrieved from CTV News:

<ctvnews.ca/canada/canada-s-birth-certificate-remains-locked-up-in-the-u-k-1.3289458>

 

Tansi Nîtôtemtik,

In 1867, Canadian Confederation changed the legal regime for Indigenous peoples in Canada and influenced how Crown-Indigenous relations have developed. Section 91(24) of the Constitution Act, 1867 consolidated the colonial decision-making about Indigenous peoples into one legislative body (the federal government) and laid the foundation for the paternalistic Indian Act. This constitutional division of powers gave the federal government control over Indigenous peoples in a way that allowed for a uniform, Canada-wide approach to the extremely diverse Indigenous peoples and cultures throughout the country. This standardized regime ultimately manifested in the paternalistic Indian Act and damaged Indigenous systems of government throughout Canada.

Section 91(24): What is it and what was it intended to do?

Section 91(24) of the Constitution Act, 1867 grants the federal government the power to legislate over “Indians, and the lands reserved for Indians.”[1] The provision “was the only constitutional provision to address Aboriginal peoples” until 1982.[2] Since federal authority over “Indians” and the “lands reserved” for them has been influential in how Canada’s Indigenous policy has developed, it is important to understand both the intentions and the effects of the constitutional provision. Since there was a “dearth of discussion” in the Confederation debates about why the federal government gained control over Indigenous peoples,[3] it is necessary to consider multiple theories.

Canadian constitutional scholar Peter Hogg argues that the main reason that governance of Indigenous peoples was placed with the federal government was to “protect” Indigenous peoples from European settlers, who favoured limited government restrictions on their use of land.[4] Hogg argues that there was a belief at the time of Confederation that the distant federal government would be more likely to respect existing Indian treaties and to protect Indigenous peoples.[5] This jurisdictional thinking is an example of paternalistic attitudes and policies directed towards Indigenous peoples at the time of Confederation.

Another theory behind the origin of s 91(24) is that the Canadian state wanted control of more land, and that this goal would be easier to achieve with federal control. This theory, that the motivation for federal control over Indigenous peoples was “closely related to the expansionist goals of Confederation” to control more land, was acknowledged by the Supreme Court of Canada.[6] A desire to assert Canadian presence in land with few European settlers could arguably be more easily achieved by the federal government.[7] The ability to speak with one voice as the Canadian state enabled Treaties 1 to 11 (“the numbered treaties”) to be enacted and for the Canadian state to gain control of substantial tracts of Indigenous land.[8]

Regardless of the intention of s 91(24), the provision was quickly used by the federal government to gain control over Indigenous lands and peoples.

Federal Jurisdiction in Practice

The Truth and Reconciliation Commission notes that while the Indian Act was not enacted until 1876, s 91(24) allowed the federal government to begin crafting its Indigenous policy. Two early acts, in 1868 and 1869, incorporated “much of the previous Province of Canada’s legislation regarding Indian people, applying it to the country as a whole.”[9] This early legislation was designed to “undermine First Nations’ self-government and foster assimilation [into Canada]”.[10] A federal approach allowed the goal of assimilation to be comprehensive and standardized throughout Canada, despite the extensive differences between Indigenous groups occupying these lands.

The consequences of direct federal control can be observed with the enactment of the Indian Act in 1876, with consequences that are still felt by Indigenous peoples in Canada. The Indian Act will be introduced in tomorrow’s post.

Until Next Time,

Team ReconciliAction YEG

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[1] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

[2] John J Borrows & Leonid I Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 5^th ed (Toronto: LexisNexis Canada Inc, 2018) at 94.

[3] Charlotte A Bell, “Have you ever wondered where s 91(24) comes from? Or (for the erudite) The Content of s 91(24) of the Constitution Act, 1867” (2004) 17 National Journal of Constitutional Law 285 at 289 [Bell].

[4] Peter W Hogg, Constitutional Law of Canada (2017 Student Edition) (Toronto: Thompson Reuters, 2017) at 28-2 [Hogg].

[5] Ibid.

[6] Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 at para 4.

[7] Hogg supra note 4 at 28-2.

[8] Bell supra note 3 at 290-291.

[9] Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: The History, Part I Origins to 1939: The Final Report of the Truth and Reconciliation Commission of Canada (vol 1) (Ottawa: Library and Archives Canada, 2015) at 107.

[10] Ibid.

The Inherent Right to Self-Determination

Image by: Anton Bielousov

Tansi Nîtôtemtik,

What is Self-Determination?

“Self-determination” is a collective, rather than individual, right. It necessitates the free and voluntary choice and genuine expression of the people.[1]

Self-Determination in International Law

The right to self-determination has numerous sources in international law.

Article 1(1) of both the International Covenant on Civil and Political Rights (ICCPR)[2] and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[3] state that: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

The right to self-determination is further recognized as an erga omnes obligation of customary international law, which means that all states have an obligation to see it respected.[4]

In regards to Indigenous peoples in particular, Articles 3 & 4 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)[5] provide, respectively: 

Article 3. Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4. Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

The SCC on Self-Determination

The right of self-determination has been examined at the Canadian level through the context of Quebec’s secession. In the Reference Re Secession of Quebec, the SCC determined that the right of self-determination is to be exercised within the existing sovereign state.[6] However, the Court added that a right to external self-determination (e.g., secession) is available for a people in three distinct contexts: (1) where a people is under colonial rule; (2) where a people is under foreign occupation; and (3) where “a people is blocked from the meaningful exercise of its right to self-determination internally.”[7]

Canadian jurisprudence has been silent on the right to self-determination for Indigenous peoples. The SCC has, however, recognized the historical independence of Indigenous nations and their inherent powers of self-governance.[8] See most notably the case of R v. Sioui:

[W]e can conclude form the historical documents that both Great Britain and France felt that the Indian nations had sufficient independence and played a large enough role in North America for it to be good policy to maintain relations with them very close to those maintained between sovereign nations.

The mother countries did everything in their power to secure the alliance of each Indian nation and to encourage nations allied with the enemy to change sides. When these efforts were met with success, they were incorporated in treaties of alliance or neutrality. This clearly indicates that the Indian nations were regarded in their relations with the European nations which occupied North America as independent nations.[9]

De-Colonizing the Concept of Self-Determination

The last decade has “marked a new era for Indigenous-state relations in Canada” as the Canadian federal government “has moved towards reconciling Indigenous claims for self-determination with the Crown’s sovereignty” based on a nation-to-nation relationship.[10] However, there remains a need to “decolonize” the concept of self-determination and to move away from state recognition of Indigenous self-determination.

It remains that Indigenous nations have their own varying conceptions of self-determination, and their right to self-determination and self-governance should not be constrained by the recognition of the Canadian state (or its judiciary). Michelle Daigle, for example, discusses the Cree conception of Awawanenitakik, which “can be translated as the importance of living an Omushkegowuk Cree way of life by acting according to our ancestors’ ontologies and the values and everyday actions that arise from such worldviews.”[11] In particular, Awawanenitakik “addresses the larger scale of the community and nation, including self-determining animal and plant nations, and the intimate scale of the interconnected individual.”[12]

In discussing Awawanenitakik, Michelle Daigle suggests that we should “focus on everyday geographies of resurgence [to unpack] the complex realities of renewing Indigenous forms of self-determination.”[13] Ultimately, Indigenous conceptions of self-determination must be contrasted to the “spatio-legal identities and rights recognized by the state,”[14] which are “tied to colonial spaces such as treaty territories.”[15] To move forward in this way, however, “requires more dialogue on the ontological underpinnings of place, geographies of responsibility, and land as an animate being imbued with political agency.”[16]

Until next time,

Team ReconciliAction YEG

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[1] See e.g., Western Sahara, Advisory Opinion, [1975] ICJ Rep 12.

[2] 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[3] 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

[4] See e.g., Case Concerning East Timor (Portugal v Australia), [1995] ICJ Rep 90; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136.

[5] GA Res 61/295, UNGAOR (2007), online: <www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>.

[6] [1998] 2 SCR 217 at para 122, 126, 161 DLR (4th) 385.

[7] Ibid at paras 131-134, 138.

[8] John J. Borrows and Leonard I. Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 5^th ed (Toronto: LexisNexis, 2018) at 7.

[9] R v Sioui, [1990] 1 SCR 1025 at 1052-1053, [1990] SCJ No 48.

[10] Michelle Daigle, “Awawanenitakik: The spatial politics of recognition and relational geographies of Indigenous self-determination” (2016) The Canadian Geographer / Le Géographe canadien 60(2): 259-269 at 260, online: <https://onlinelibrary.wiley.com/doi/pdf/10.1111/cag.12260>.

[11] Ibid at 265.

[12] Ibid.

[13] Ibid, 261.

[14] Ibid.

[15] Ibid, 264.

[16] Ibid, 268.

In the Media: BC's Bill 41 - Commitment to Implementing UNDRIP

Tansi Nîtôtemtik,

The Tyee - "A Historic Day for BC First Nations. Now the Work Starts" (28 October 2019). Retrieved from: <thetyee.ca/Opinion/2019/10/28/Historic-Day-BC-First-Nations/.jpg>.

On November 28, 2019, Bill 41: “Declaration on the Rights of Indigenous Peoples Act” received Royal Assent, making British Columbia the first province in Canada to commit to implementing the United Nations Declaration on the Right of Indigenous Peoples (UNDRIP). UNDRIP has a long and complex history in Canada which was explored on this blog in 2018. For more information on UNDRIP generally, please see previous posts: UNDRIP: An Overview[1] and UNDRIP Inaction: Why the Wait?[2].

What does the legislation do?
The legislation was implemented as a way to ensure that all future BC legislation is consistent with the 46 articles of UNDRIP.[3] S. 3 outlines that the BC government must work “in consultation and cooperation” with Indigenous Peoples to ensure BC laws align with UNDRIP.[4] The legislation also outlines that the BC government will create an action plan on how to implement UNDRIP in consultation with Indigenous Peoples.[5] Further, the government must create an annual report which will outline progress toward achieving the measures in s. 3 and the goals in the action plan.[6] The legislation also provides for the provincial government and Indigenous bodies to make decisions jointly or require consent of Indigenous bodies.[7] The legislation will apply to all existing and incoming legislation.[8] It is anticipated that the full implementation of the legislation will take significant time.[9]

Article 19 and 32 of UNDRIP
Articles 19 and 32 of UNDRIP have received some criticism in the past. Article 19 states that governments

shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 32 sets out that

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.[10]

These articles have been the subject of criticism because they are viewed by some to give Indigenous Peoples veto power over projects that would require their consent.[11] However, it is important to note the difference between veto and consent: “Veto is about unilaterally overriding a decision made by someone else, whereas consent means recognizing that the consenting party has self-determination to make an informed decision about a matter affecting them.”[12] BC Premier John Horgan has stated that it is an “important tool to require conversations and consultation with Indigenous peoples about projects that will affect them.”[13]

Most importantly, the commitment that this legislation represents is a step forward toward reconciliation in BC. While it will undoubtedly take a significant amount of time to implement this to all existing legislation, the agreement to UNDRIP is a major step forward given the history of UNDRIP in Canada.

Implementation of the Act
BC has outlined that they will be working in partnership with Indigenous Peoples in the province on how to move forward.[14] Consultation will begin with determining which BC laws should be addressed first to align them with UNDRIP.[15] The BC government has specifically outlined child welfare and environmental assessment as important areas of concern.[16] For more information on the Act and how it will be implemented, click here.[17]

 

Until next time,

Team ReconciliAction YEG

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[1] Team ReconciliAction YEG, “UNDRIP: An Overview”, University of Alberta Faculty of Law Blog, online:  <https://ualbertalaw.typepad.com/faculty/2018/02/undrip-an-overview.html>.

[2] Team ReconciliAction YEG, “UNDRIP Inaction: Why the Wait?”, University of Alberta Faculty of Law Blog, online: <https://ualbertalaw.typepad.com/faculty/2018/02/undrip-inaction-why-the-wait.html>.

[3] Simon Little, “British Columbia becomes 1^st Canadian province to pass UN Indigenous rights declaration”, Global News, (26 November 2019) online: <https://globalnews.ca/news/6222331/british-columbia-passes-undrip/> [Simon Little].

[4] Bill 41, Declaration on the Rights of Indigenous People Act, 2019 4^th Sess, 41^st Leg, 2019 (assented to 28 November 2019), SA 2019 cl 3 [Declaration on the Rights of Indigenous People Act].

[5] Ibid at cl 4.

[6] Ibid at cl 5.

[7] Ibid at cl 7; West Coast Environmental Law, “Bill 41: A new law to uphold Indigenous rights in BC”, West Coast Environmental Law, (13 November 2019) online: <https://www.wcel.org/blog/bill-41-new-law-uphold-indigenous-rights-in-bc> [West Coast Environmental Law].

[8] Simon Little, supra note 3.

[9] Ibid.

[10] United Nations, United Nations Declaration on the Rights of Indigenous Peoples (2007) at 16, online: <https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf> [UNDRIP].

[11] Ibid at 22-23; Simon Little, supra note 3.

[12] West Coast Environmental Law, supra note 7.

[13] Simon Little, supra note 3.

[14] Government of British Columbia, “A New Path Forward”, Government of British Columbia, online: <https://declaration.gov.bc.ca/> [Government of British Columbia].

[15] Ibid.

[16] Ibid.

[17] Ibid.

Indigenous Sovereignty and the Treaties of Albany and Niagara

Tansi Nîtôtemtik,

The wampum belt is a symbol of sovereignty. Oneida Nation.
Retrieved from <www.oneidaindiannation.com/the-guswenta-two-row-wampum-belt-is-a-symbol-of-sovereignty>

Indigenous Governance requires recognizing sovereignty. As demonstrated in yesterday’s post, the Royal Proclamation of 1763 was an early recognition by the British Crown of the sovereignty of Indigenous nations. Early Crown-Indigenous treaties also recognized the sovereignty and right of governance for Indigenous peoples.

Seventeenth- and eighteenth-century treaties were “peace and friendship” agreements that sought allyship, defined territory, and established commercial and economic relationships.[1] Most treaties from the era did not involve cessation of land, but all treaties created relationships with rights and obligations on both sides and were the form of “diplomatic” relations between the European and Indigenous nations.[2]

When early treaties were negotiated, the colonizing powers of Great Britain and France believed that Indigenous nations “had sufficient independence and played a large enough role in North America for it to be good policy to maintain relations with them very close to those maintained between sovereign nations.”[3] The Supreme Court of Canada has acknowledged that the European powers’ use of treaties was a recognition of Indigenous nations as “independent.”[4] Two example of early treaties which recognized Indigenous sovereignty were the Treaties of Albany and Niagara.

The Treaty of Albany, negotiated in 1664, was “the first formal alliance between Aboriginal peoples in North America and the British Crown.”[5] The British, still a relatively weak power in North America, sought a powerful ally in the Iroquois Confederacy (Haudenosaunee) for economic and military aid against the French.[6] The agreement at Albany was an affirmation of Iroquois sovereignty and allowed the British and the Haudenosaunee to govern their own peoples, including the retention of exclusive jurisdiction for criminal law.[7] The agreement combined cultural elements from both nations – the British documented the treaty in written text and the Haudenosaunee recorded the agreement on a wampum belt “which was highly valuable and required great skill to fashion” and “demonstrated the sanctity with which they viewed their alliance with the British.”[8]

At the Treaty of Niagara negotiations in 1764, a “nation-to-nation relationship between settler and First Nations people was renewed and extended” and was again documented in both written text and on a wampum belt.[9] The written agreement was the Royal Proclamation of 1763 – the document became a treaty when the Haudenosaunee consented to it at Niagara.[10] The agreement also produced a culturally powerful two-row wampum belt that “recognizes interaction and separation of settler and First Nation societies.”[11] The wampum belt produced at Niagara illustrates a relationship of friendship between the Haudenosaunee and the British, but the parallel rows represent that each nation will remain distinct and “will not interfere with the internal affairs of the other.”[12] The Haudenosaunee cultural understanding of the wampum, read in conjunction with the Royal Proclamation, show that the parties agreed that each nation was to self-govern their own peoples.

The Truth and Reconciliation Commission has noted that treaties between “Indigenous nations and the Crown established the legal and constitutional foundations of this country”[13] – this foundation rests on mutual agreement between the British Crown and diverse Indigenous nations. Early Crown-Indigenous treaties, such as the Treaties of Albany and Niagara, highlight this recognition of sovereignty. The parties viewed themselves as distinct nations – like the separate but parallel rows on wampum – and these agreements show that the British Crown recognized Indigenous sovereignty and governance prior to Canadian Confederation.

 

Until Next Time,

Team ReconciliAction YEG

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[1]John J Borrows & Leonid I Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 5^th ed (Toronto: LexisNexis Canada Inc, 2018) at 285 [Borrows & Rotman].

[2] Ibid at 281.

[3] R v Sioui, [1990] 1 SCR 1025 at 1053.

[4] Ibid.

[5] Borrows & Rotman supra note 1 at 11.

[6] Ibid.

[7] Ibid at 13.

[8] Ibid.

[9] John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government” in Michael Asch, ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equity, and Respect for Difference (Vancouver: UBC Press, 1997) 155 at 161.

[10] Ibid.

[11] Ibid at 164.

[12] Ibid.

[13] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: Library and Archives Canada, 2015) at 249.

The Royal Proclamation of 1763

Tansi Nîtôtemtik,

Image retrieved from Library and Archives Canada

The Royal Proclamation of 1763 was issued by King George III on October 7, 1763, following the Crown’s acquisition of French territory in North America under the Paris Treaty of 1763, following the Seven Years War. The Proclamation set out to establish separate colonial governments in the provinces of Quebec, East Florida, West Florida, and Grenada.

However, beyond establishing the limits of these four Crown colonies, the Proclamation is particularly significant for Indigenous governance in the fact that it reserved a large area of North America – specifically, the area West of the Appalachians, but excluding Quebec and Rupert’s Land (owned by the Hudson’s Bay Company) – for the exclusive use and possession of Indigenous peoples. It is for this reason that the Proclamation is also referred to as the “Indian Magna Carta”:

And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.[1]

In delineating the bounds of the colonial governments, the Proclamation explicitly states that the land not ceded to by Indigenous peoples was reserved to them, so that they might not be “molested or disturbed”: 

And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.[2]

Following this, the Proclamation “strictly forbid” all subjects from purchasing or settling on the reserved lands. It further set out that, in order to prevent any “frauds and abuses” occurring in the future, no private person could purchase reserved land, except with leave of the Crown, who could only purchase land from the Indigenous peoples:

And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained.

And We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests and to the great Dissatisfaction of the said Indians, In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require, that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where We have thought proper to allow Settlement; but that, if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie; and in case they shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose.[3]

While at once affirming the rights of Indigenous peoples over their lands, the Proclamation is filled with statements that claim “Dominion” and “Sovereignty” over those territories, and speaks of the Crown’s “Protection” over the Indigenous peoples: “In placing these divergent notions within the Proclamation the British were trying to convince Native people that they had nothing to fear from the colonists, while at the same time trying to increase their own political and economic power.”[4]

The Royal Proclamation is argued by some to still be valid in Canada, given the fact that no other statute has overturned it.[5] It is, in fact, explicitly enshrined in Section 25 of the Constitution Act, 1982, relating to the application of the Charter of Rights and Freedoms:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and 

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

The relevant excerpt of the Proclamation can be read here.[6]

Until next time,

Team ReconciliAction YEG

 

[1] “Royal Proclamation, 1763”, Indigenous Foundations, online: <https://indigenousfoundations.arts.ubc.ca/royal_proclamation_1763/>

[2] Ibid.

[3] Ibid.

[4] John J. Borrows and Leonard I. Rotman, “Governance” in Aboriginal Legal Issues: Cases, Materials & Commentary, 5^th edition, eds. John J. Borrows and Leonard I. Rotman (Toronto: LexisNexis, 2018) at 17.

[5] “Royal Proclamation, 1763”, supra note 1.

[6] Ibid.

Pre-Contact Indigenous Systems of Governance

Tansi Nîtôtemtik,

For thousands of years, the Aboriginal people of what is now Canada organized themselves as sovereign nations, with what was essentially governmental jurisdiction over their lands, including property rights. Those rights – of governance and property – were trampled in the stampede of European settlement, colonization and commercial interests. But they were never lost or extinguished.[1] – Centre for First Nations Governance

Indigenous Peoples have always self-governed, even before contact. It is important to understand that Indigenous governance is not a new or novel concept and has been in practice for hundreds of years. Pre-contact, Indigenous Peoples were organized as sovereign nations.[2] Each group exclusively occupied territory, exercised governmental authority and established “their own cultures, economies, governments, and laws.”[3] Indigenous Peoples owned the land they occupied and had property rights and responsibilities regarding the land.[4] It is for this reason that Indigenous rights to lands and natural resources are inherent. Indigenous Peoples occupied, used and cared for the land as sovereign nations prior to European contact.[5]

In the early years, there were six main geographical Indigenous groups:

• Woodland First Nations;
• Iroquoian First Nations;
• Plains First Nations;
• Plateau First Nations;
• Pacific Coast First Nations; and
• Nations of the Mackenzie and Yukon River Basins.[6]

Each group had fewer than 400 members and their social organization differed.[7] For instance, the Iroquoian First Nations, now known as the Haudenosaunee, established permanent communities and developed complete democratic systems of government.[8] They were able to establish these permanent communities as there was an abundance of food supplies, eliminating the need to migrate in search of food.[9] The Plains First Nations was comprised of many individual groups, each with their own chief. However, they also had military societies that policed, organized defences and regulated life for each individual group that comprised the Plains First Nations.[10] That being said, as a whole they had military societies that policed, organized defences and regulated life for each group.[12]

Each Indigenous group had an organized structure and self-governed their communities. Each group was organized according to their unique needs, lifestyle, and values. Family units worked together and leaders were often selected according to skill level and experience.[13]

Before European contact, Indigenous sovereign nations not only had a sacred relationship with the lands they occupied, they also had established laws, cultures, governments and economies. It is important to understand that Indigenous governance is not a new or novel concept and that it actually predates 1700.[14] It is essential that we appreciate and acknowledge the long-standing and established practice of Indigenous governance.

 

Until Next Time,

Team ReconciliAction YEG

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[1] Centre for First Nations Governance, “A Brief History of our Right to Self-Governance Pre-Contact to Present” at 4 [First Nations Governance].

[2] Ibid at 6.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Government of Canada, “First Nations in Canada,” online: <www.rcaanc-cirnac.gc.ca/>.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] First Nations Governance, supra note 1 at 7.

Intro to Indigenous Governance: Sovereignty vs Self-Determination vs Self-Governance

Tansi Nîtôtemtik,

Sean Kilpatrick, The Canadian Press. Prime Minister Justin Trudeau and Assembly of First Nations Chief Perry Bellegarde participate in the signing of the Assembly of First Nations-Canada Memorandum of Understanding on Joint Priorities on Parliament Hill in Ottawa on Monday, June 12, 2017.

Today, Team ReconciliAction YEG embarks on a five-week focus on topics in Indigenous governance and the law in Canada. Over the next three weeks, we will be delving into the history of this topic. We begin with an overview of pre-contact systems of governance and tracing key points in the story of Canada-Indigenous relations leading to the governance framework established under the 1876 Indian Act. We then consider the subsequent development and re-negotiation of self-governance to the present day. In our final two weeks on the topic, we will examine current topics in Indigenous governance, highlighting the benefits and challenges of locating Indigenous self-governance and sovereignty within Canada’s legal and political framework. In today’s post, we define and distinguish three terms that will lay the groundwork for our discussions over the next five weeks: sovereignty, self-determination, and self-governance. 

Sovereignty
Sovereignty is perhaps the most intangible of the three concepts, referring to an inherent power or natural right to define, sustain, and perpetuate identities as individuals, communities, and nations.[1] In classical European political theory, sovereignty is a social, legal, and political construct with the term conveying “absolute power over people, land, water, and natural resources, typically residing in the head of state.”[2] From an Indigenous perspective, sovereignty is understood as a political and legal right as well as an inherent human right  - the “ultimate power from which all specific political powers are derived.”[3] Theories of Crown sovereignty that came to underpin Canada’s legal and political system is what, in part, allowed Canada to assert its stolen legal authority from Indigenous peoples and marginalize and subordinate systems of Indigenous law and governance.[4]

 Self-Determination
The principle of self-determination is the natural expression of sovereignty - it is the “power of choice in action”.[5] The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) recognizes Indigenous self-determination in Article 3:

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.[6]

In Article 4, the UNDRIP states that self-determination includes the right to autonomy or self-government in matters relating to their internal and local affairs including the means to finance these functions.[7] Self-determination has been understood as essentially intertwined with the ability to achieve and assert desires and aspirations. In the words of René Tenasco, Councillor for the Kitigan Zibi Anishinabeg Council: “Self-determination is looking at our desires and our aspirations of where we want to go and being given the chance to attain that… for life itself, for existence itself, for nationhood itself.”[8]

Self-Governance
Self-governance is one way Indigenous peoples may put the principle of self-determination into practice. Self-governance is an arrangement where a “collective governs its own affairs, as a unit or subunit of sovereign power”.[9] It includes the “ability to assess and satisfy needs without outside influence, permission or restriction.”[10] Reclaiming self-governance is one way Indigenous nations can rebuild their own institutions and achieve collective outcomes in line with their respective community values.[11] In reclaiming autonomy and governance power, Indigenous peoples have in turn reshaped sovereignty and governance theory in Canada.[12]

While we have attempted in this post to provide a basic definition of sovereignty, self-determination, and self-governance, it should be recognized that these are versatile concepts with meanings that can overlap with one another. Further, ReconciliAction YEG respectfully acknowledges that the terms are used by different peoples in different ways. Over the next few weeks, we will be engaging with all three terms to provide a more contextualized and critical understanding of ideas associated with these concepts. Thank you for continuing to learn alongside us!

 

Yours Truly,

Team ReconciliAction YEG

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[1] John J Borrows & Leonard I Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 5th ed (Toronto: LexisNexis Canada, 2018) at 3 [Borrows].

[2] William Nikolakis, “The Evolution of Indigenous Self-Governance in Canada” in William Nikolakis, Stephen Cornell & Harry Nelson, eds, Reclaiming Indigenous Governance: Reflections and Insights from Australia, Canada, New Zealand, and the United States (University of Arizona Press, 2019) 55 at 56 [Nikolakis].

[3] Roger Jones, Councillor and Elder Shawanaga First Nation, Sudbury, Ontario, 1 June 1993, as quoted in Borrows, supra note 1 at 3.

[4] For a compelling discussion regarding the historical assertion of Canadian sovereignty along these lines, see Joshua Nichols, “Sui Generis Sovereignties: The Relationship Between Treaty Interpretation and Canadian Sovereignty” in Oonagh E Fitzgerald, Valeria Hughes & Mark Jewett, eds, Reflections on Canada’s Past, Present and Future in International Law (McGill-Queen’s University Press, CIGI Press, 2018) 131.

[5] Borrows, supra note 1 at 3.

[6] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR (2007), online: <www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf>.

[7] Ibid.

[8] René Tenasco, Councillor Kitigan Zibi Anishinabeg Council, Maniwaki, Quebec, 2 December 1992, as quoted in Borrows, supra note 1 at 3.

[9] Nikolakis, supra note 2 at 56.

[10] Borrows, supra note 1 at 3.

[11] Nikolakis, supra note 2 at 55.

[12] Ibid at 56.

Highlight on Community Based Programs and Activists: The Ma Mawi Wi Chi Itata Centre and Fearless R2W

Tansi Nîtôtemtik,

Today on the blog, we will be highlighting the community-based programs offered by the Ma Mawi Wi Chi Itata Centre as well as the activist group Fearless R2W. Both are aimed at ensuring that children remain in the care of their Indigenous community and are not apprehended and placed into the child welfare system.

Ma Mawi Wi Chi Itata
Founded in 1984, “Ma Mawi Wi Chi Itata is a Grandmother in the Winnipeg family of community service-providers…working with Indigenous families.”[1] The name “Ma Mawi Wi Chi Itata” in Ojibway translates to “we all work together to help one another.”[2] The Ma Mawi Wi Chi Itata Centre provides community-based programs and services with the goal of building the “capacity for self-care” so that Indigenous communities can self-govern in all aspects.[3] The Indigenous child welfare system is a perpetual cycle that needs to be broken. Children need to remain with their families and raised within their communities. It is through community-based programs such as those offered by the Ma Mawi Wi Chi Itata Centre that change can be effected.

The Ma Mawi Wi Chi Itata Centre has four Community of Caring Elements that its programs are centred around: Community Voice, Relationships, Opportunities and Leadership in Action.[4] Each Element is essential to providing programs that benefit Indigenous communities and families and that lead to “community capacity for self-care.”[5] To learn more about the Centre, click here.[6]

Fearless R2W
Founded in 2014, Fearless R2W is comprised of “North End Families working together to build capacity and develop system literacy – all with the intention of keeping kids with their families.”[7] It is a volunteer group of community helpers and parents that educate others about child welfare in Manitoba.[8] This group began when parents came together to discuss the supports they felt they required in order to “keep their families intact and away from the grips of the CFS.”[9] There was a strong desire to remove the “fear around asking for help in terms of child welfare.”[10] It was through this desire that the “Fearless” portion of the group’s name came to be. “R2W” is the postal code in Winnipeg’s North End where there is an “alarming rate of child apprehension” with “at least 1 in 6 children in the neighbourhood in the care of child welfare.”[11]

A notable milestone is that this group developed the Government and Community Recommendations.[12] These Recommendations are connected with the Minister of CFS, MB Foster Family Network and others.[13] There were four focus areas identified: addiction support, housing, traditional family parenting, and advocacy.[14] This has allowed Fearless R2W to meet with service providers and government to discuss these focus areas and the group’s plans to educate and advocate in these areas.[15]

The group meets weekly at the Turtle Island Neighbourhood Centre in Winnipeg. They offer sharing and learning circles where parents from surrounding communities are able to ask questions about the child welfare system and learn about the legislation. Today, the group has volunteer advocates who not only provide information about the child welfare system to participants, but also provided 1-on-1 parent advocacy.”

If you would like to learn more about this group, click here.[16]

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[1] Ma Wawi Wi Chi Itata Centre, online : www.mamawi.com/ [Ma Wawi Wi Chi Itata Centre].

[2] Ibid.

[3] Ibid.

[4] Ma Mawi Wi Chi Itata Centre, online : <www.mamawi.com/our-programs/>.

[5] Ibid.

[6] Ma Mawi Wi Chi Itata Centre, supra note 1.

[7] Aboriginal Youth Opportunities, online: www.ayomovement.com/fearless-r2w.html/ [AYO].

[8] Fearless R2W, online: www.fearlessr2w.ca/about [Fearless R2W].

[9] AYO, supra note 7.

[10] Fearless R2W, supra note 8.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

Decolonizing Child Rearing: Highlight on the Opokaa'sin Project

Tansi Nîtôtemtik,

“Rebuilding Indigenous nations requires us to rebuild our childrearing practices”
-------
Tanya Pace-Crosschild

This week, ReconciliAction YEG is wrapping up our five-week segment on Indigenous child and family welfare services in Canada. While a crucial part of our survey of the child welfare topic has required a critical view, it was important to our team that we end the segment highlighting stories of power and resistance of community-based groups as they work to promote Indigeneity and reunification of Indigenous families coming into contact with child welfare services. Today’s post highlights a southern Alberta initiative called the Opokaa’sin Family Preservation Program.

The Opokaa’sin Early Intervention Society opened in 1996 with the aim to nurture and support the strengths and resilience of Indigenous families, children, and youth.[1] Opokaa’sin works to promote family unity in situations where the child’s safety can be supported and to enhance and strengthen family functioning by connecting members with community resources and services.[2]

In 2002, Opokaa’sin started the Family Preservation program, which provides family support to parents seeking to recover their children as well as mentorship opportunities for Aboriginal children in foster care.[3] The Opokaa’sin family project is significant because it promotes traditional Blackfoot child-rearing and family structuring. As we have previously talked about on this blog, child welfare services in situations involving Indigenous families and children perpetuate systems of colonization in part because they impose Euro-Canadian nuclear family models on the children placed in care.[4] Indigenous children have historically been,and continue to be, placed in non-Indigenous foster homes based on an “erroneous set of colonial assumptions that fail to see Indigenous family and kinship models.”[5]

The Opokaa’sin project is dedicated to decolonizing approaches to early childhood and “strengthening cultural identity amongst Indigenous families and youth.”[6] We have previously discussed on this blog that the importance of decolonization in the context of child welfare means creating a space for cultural safety and regenerating connections to culture and language and community.[7] The Opokaa’sin program falls into this category as it is based on the idea that “Rebuilding Indigenous nations requires… rebuild[ing] childrearing practices.”[8] Prior to colonization, Blackfoot nations viewed children as sacred beings held in the highest regard because they were seen as “extremely close to the spirit world.”[9] Children’s position in society required the collective efforts of the community in child rearing and they were not the sole responsibility of the mother.[10] Opokaa’sin, which means ‘all our children’ in Blackfoot, works to restore this form of Blackfoot family structuring and child-rearing by incorporating traditional teachings, stories, languages, and traditions into their programs and services for families.[11] The programs promote Indigenising child-rearing by placing child-rearing and care for the world as a collective responsibility.[12] This value is promoted by incorporating extended family into the education of the children.[13]

The Opokaa’sin project continues to develop its resources and methods of service delivery as it re-discovers and articulates traditional values systems in consultation with the Blackfoot community and elders in its goal of ultimately restoring Blackfoot childrearing practices.[14] Restoration of these practices will prove in turn to have a significant effect on programming for parent education and support, family reunification processes and early childhood education in the future.[15]

If you would like to learn more about the Opokaa’sin Early Intervention Society, please visit their website here.[16]

 

Yours Truly,

Team ReconciliAction YEG

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[1] “About Us”, Opokaa’sin Early intervention Society (last visited 10 January 2020), online: <www.opokaasin.org/about-us>.

[2] Ibid.

[3] “Programs & Services”, Opokaa’sin Early intervention Society (last visited 10 January 2020), online: <www.opokaasin.org/programs-services>.

[4] See “Indigenous Mothering and the Impacts of the Child Welfare System” (12 November 2019), online (blog): University of Alberta Faculty of Law Blog <ualbertalaw.typepad.com/faculty/2019/11/indigenous-mothering-and-the-impacts-of-the-child-welfare-system.html>.

[5] Tanya Pace-Crosschild, “Decolonising Childrearing and Challenging the Patriarchal Nuclear Family through Indigenous Knowledges: An Opokaa’sin Project” in Rachel Rosen & Katherine Twamley (eds) Feminism and the Politics of Childhood: Friends or Foes? (London: UCL Press, 2018) 191 at 192.

[6] Ibid at 192-193.

[7] See “Decolonization” and Why it Matters in the Context of Child Welfare”, (27 November 2019), online (blog): University of Alberta Faculty of Law Blog <ualbertalaw.typepad.com/faculty/2019/11/decolonization-and-why-it-matters-in-the-context-of-child-welfare.html>

[8] Supra note 6 at 193.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid at 196.

[13] Ibid at 193.

[14] Ibid at 196.

[15] Ibid.

[16] Opokaa’sin Early intervention Society (last visited 10 January 2020), online: <www.opokaasin.org>.

Navigating Structural Violence with Indigenous Families in Child Welfare

Tansi Nîtôtemtik,

“Adopting a lens of structural violence disrupts the notion of neglect as a “personal problem”, refocusing attention on the responsibility of governments to recognize and address underlying structural inequities."

                                                                        - Alison J Gerlach et al

Throughout our discussions on this blog on child welfare, we have discussed the over-representation of Indigenous children in the child welfare system and the high rates of apprehension over misconceptions of “bad parenting”.[1] In addition, we have discussed the effects of apprehension on Indigenous mothers and childrearing[2] and the need for decolonizing forces to disrupt the patterns of institutionalized and structural violence towards Indigenous children and families and restore connection to their communities and traditions.[3] Today’s post discusses how British Columbia’s Aboriginal Infant Development Program has sought to navigate systems of structural violence with Indigenous families engaging in the child welfare system.

The Importance of Indigenous Early Childhood Intervention
The Aboriginal Infant Development Program (“AIDP”) is a province-wide Indigenous early childhood intervention program in British Columbia that provides early childhood education, home visiting, outreach and/or centred-based early intervention for Indigenous families with young children.[4] The AIDP is unique in that it is characterized by its relational perspective towards family well-being.[5] The AIDP arose in response to the persistent overrepresentation of Indigenous children in care and the calls for proactive, community-based early childhood programs and services from Indigenous communities and children and youth advocates.[6] Increasingly, high quality Indigenous early childhood programs are becoming viewed as “critical sites for pursuing cultural and language revitalization and as pathways to the collective health and well-being of Indigenous families and communities.”[7] According to international standards, “quality programming” includes:

• A grounding in Indigenous knowledges, values, and ways of caring for young children;
• Community governance, involvement, and accountability;
• A broad and relationship view of health and well-being;
• Family and Elder involvement;
• Comprehensive and coordinated programs; and
• Sustainable funding and structural supports.[8]

Because of their focus on relational perspectives, the AIDP workers are able to play two important roles in supporting families experiencing child apprehension. First, the AIDP workers help mothers and children to make sense of the process of child apprehension and help parents meet the necessary conditions to either prevent losing custody of their children or to get their children back.[9] Second, the AIDP workers  provide a critical counter-narrative to women’s experiences of feeling “disempowered, judged, and mandated to prove themselves to the state in order to keep, or reclaim their rights, to raise their children.”[10] In this way, the AIDP workers’ “explicit resistance to the child welfare system’s perceptions of Indigenous mothers created a relationship in which mothers could exert their resistance to negative definitions of being a “bad parent”, thereby reaffirming their agency in motherhood.”[11]

Navigating Structural Violence
‘Structural violence’ is a form of social injustice which enacts violence through the operation of  structures and social mechanisms which “cause harm, deny human rights, constrain human agency, and/or prevent particular individuals and population groups from having the resources necessary to help them reach their full potential while sparing other groups from the same treatment.”[12] Currently, oppressive structural policies result in high numbers of Indigenous children being removed from their families.[13] It is important to adopt a lens of structural violence in the context of early childhood intervention because it disrupts notions of “bad parenting” and “neglect” as an individual problem and “refocus[es] attention on the responsibility of governments to recognize and address underlying structural inequalities.[14] Gerlach et al call on the government to invest in Indigenous early childhood programs so that they can play a more proactive and preventive role in Indigenous families by providing access to basic determinants of health such as secure food and housing. In addition, education of frontline workers on the history and impacts of the residential school system and trauma- and violence-informed care is necessary for breaking down institutionalized and normalized structural violence.[15]

While early childhood intervention and family support programs have been shown to have a positive effect in breaking down systems of structural violence, underfunding by the government and lack of education of frontline workers puts these very same programs at risk for perpetuating systems of structural violence. It is essential that the federal and provincial governments in Canada move to invest in Indigenous early childhood programming that supports family preservation and the optimal health and well-being of Indigenous children and families if any reduction in Indigenous child representation in child welfare is to be seen in the future.

 

Until next time,

Team ReconciliAction YEG

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[1] See “Misconceptions of ‘Bad Parenting’ and the Impacts on Child Apprehension” (13 November 2019), online (blog): University of Alberta Faculty of Law Blog (ReconciliAction YEG) <ualbertalaw.typepad.com/faculty/2019/11/misconceptions-of-bad-parenting-and-the-impacts-on-child-apprehension.html>.

[2] See “Indigenous Mothering and the Impacts of the Child Welfare System” (12 November 2019), online (blog): University of Alberta Faculty of Law Blog (ReconciliAction YEG) <ualbertalaw.typepad.com/faculty/2019/11/indigenous-mothering-and-the-impacts-of-the-child-welfare-system.html>.

[3] See “The De-colonizing Force of Indigenous Girls and Youth” (20 November 2019), online (blog): University of Alberta Faculty of Law Blog (ReconciliAction YEG) <ualbertalaw.typepad.com/faculty/2019/11/indigenous-girls-and-youth-as-de-colonizing-force-.html>; See also “The Role of the Indigenous Community in Child Development” (11 November 2019), online (blog): University of Alberta Faculty of Law Blog (ReconciliAction YEG) <ualbertalaw.typepad.com/faculty/2019/11/the-role-of-the-indigenous-community-in-child-development.html>.

[4] Alison J Gerlach et al, “Navigating Structural Violence with Indigenous Families: The Contested Terrain of Early Childhood Intervention and the Child Welfare System in Canada” (2017) 8:3 Intl Indigenous Policy J 1 at 1, 4.

[5] Ibid at 4.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid at 6.

[10] Ibid at 7.

[11] Ibid at 8.

[12] Gerlach at 11.

[13] Ibid at 12.

[14] Ibid at 11.

[15] Ibid.

First Nations Parenting and Child Reunification

Tansi Nîtôtemtik,

"Under the Stars" by Victoria McKinney. Image retrieved from <https://www.sa-cinn.com/wp-content/uploads/2019/05/product_POD1748.jpg>.

This week, as we wrap up our discussions on Indigenous child welfare, we are turning our focus to Indigenous community responses and ideas about the way forward – for children, parents, and communities alike. For today’s post, we consider reunification and the best practices (and barriers) that can help ensure (or hinder) a positive outcome for Indigenous children who have been placed within the welfare system. In particular, we refer to Elaine Toombs et al’s article, “First Nations parenting and child reunification: Identifying strengths, barriers, and community needs within the child welfare system”.[1] This article is the culmination of a study undertaken with individuals and focus groups from seven First Nations communities in Ontario to identify and “increase the understanding of the pathways and barriers to reunification of children with their primary caregivers in First Nations communities.”[2]

When discussing reunification, we must be cognizant of the realities of Indigenous communities, and the unique supports and barriers that help or hinder reunification. A necessary first step is to define “reunification” and “family” in a culturally appropriate way. As indicated in the article, child reunification “has been previously defined by placing a child that was previously in out of home care back with their family of origin.”[3] However, this definition relies on a non-Indigenous conception of the “nuclear family” and does not account for the Indigenous conceptualization of family, which “can include additional family members (such as grandparents or aunts) and unrelated community members that are significant to the child.”[4] To limit – or rather, to impose – the concept of reunification in narrow terms is harmful for the children and communities involved. As Toombs et al note, “[w]ith such disparity between non-Indigenous and Indigenous concepts of family, it is unlikely that non-Indigenous policies of reunification adequately reflect Fist Nations children’s needs.”[5]

As indicated in the study, “[r]eunification of a child with their original parent(s) was seen as the primary goal of the child welfare system and recognized as a positive outcome for families.”[6] And yet, in reference to the Indigenous conception of “family”, reunification is “not limited to placing a child back with their original parents or caregivers.”[7] Rather, “placing a child with extended family or with the community was determined as possible options for reunification,” and “was reported as beneficial when parental placement could not be obtained.”[8] Indeed, the study indicates that it should be a priority to keep children within their communities. Participants in the study indicated that “placement within the community better facilitated goals of possible reunification with the child’s parent(s) and allowed parents to have frequent access to the child when possible.” Meanwhile, “[r]emoving the child from the community was cited as the most detrimental outcome for the child due to the disruption felt by the child, separation from familiar people and places, and the lack of community connection.”[9] Community connection can include the community’s cultural practices or traditions (which the child might not have proper access to when placed with a non-Indigenous family), and community supports (such as libraries, band offices, community centres, and community events) which “were deemed to be more helpful where administered by First Nations people, incorporated traditional or cultural elements, and were located within the community.”[10]

Ultimately, the study indicates that the biggest barriers to reunification rest with parenting challenges and community issues (such as mental illness, addictions, and poverty), and the lack of availability or accessibility of parenting services. While many barriers are systematic rather than based on “bad parenting,”[11] the article recognizes the importance of empowerment and self-efficiency – of families and communities alike – within the lives of their children. A strong connection between children, families, and communities rests at the heart of reunification. As we have written about before, a community cannot survive without its children. Likewise, a child cannot survive without their parents, and parents cannot be parents without their children: “How are you going to learn to be a good parent if your child is not there…?”[12] In going forward, the article tells us that First Nations people need to design and implement their own programs, based in their own traditions. This can “increase empowerment and promote community health and connection, which in turn would positively affect parents, children, and their communities.”[13]

 

Until next time,

Team ReconciliAction YEG

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[1] (2018) Child & Family Social Work 23 408-416.

[2] Ibid at 409.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid at 411.

[7] Ibid.

[8] Ibid.

[9] Ibid at 410.

[10] Ibid at 411.

[11] See Ibid at 414.

[12] Ibid at 411.

[13] Ibid at 413.

The Role of Community Based Programs in Raising Children

Tansi Nîtôtemtik,

Image retrieved from CBC News: <www.cbc.ca/news/indigenous/ottawa-children-tribunal-1.5315196>.

This week, we will be looking at community based child welfare programs and Indigenous responses to the issues associated with child welfare.

Far too often, Indigenous children who are taken into care are separated from their community and their culture. This disconnection is detrimental to the development of children. Connection to community is essential to avoid some of the negative repercussions that are associated with growing up in care.

In Improving Child and Family Services in Indigenous Communities: Survey Summary Report, respondents noted that there is not a lot of support for children who are taken away from their families and that being placed into those situations sometimes led to being bullied or abused.[1] Others emphasized the difficulties associated with not having a direct connection with their biological parents and siblings once they were in care, noting that feelings of grief hurt familial relationships and made it difficult to re-connect later.[2]

Indigenous children who grow up without a connection to their culture can feel segregated from that culture and it can be detrimental to their overall well-being, specifically to their mental health.[3] Further, when children are given the opportunity of cultural education, it is essential that the connection is not generic, but tied to/rooted in their specific heritage.[4]

In moving forward, it is imperative that more funding is provided to allow for effective distribution of services for Indigenous children in care and that the control over services is given to Indigenous communities.[5] Indigenous communities are best suited to develop culturally significant programs for their children, but they require financial support from government to be successful.

 

Until next time,

ReconciliAction YEG

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[1] Government of Canada, “Improving Child and Family Services in Indigenous Communities: Survey Summary Report” (5 July 2018) Government of Canada (online): <https://www.sac-isc.gc.ca/eng/1530823640599/1535381807721#a3>.

[2] Ibid.

[3] Ibid.

[4] Brielle Morgan, “Indigenous kids need better access to culture while in government care” (16 November 2018) The Discourse (online): <https://thediscourse.ca/urban-nation/indigenous-kids-culture>.

[5] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: TRCC, 2015), online: <https://nctr.ca/assets/reports/Final%20Reports/Executive_Summary_English_Web.pdf>.

Meet ReconciliAction YEG's Newest Contributor: Russell Green

Tansi Nîtôtemtik,

My name is Russell Green and I am a third-year student at the University of Alberta Faculty of Law. I am excited to begin this journey as a contributor to the ReconciliAction YEG blog.

I look forward to using this experience to grow as a person, a Canadian, and as someone who is about to enter the legal profession. Reconciliation and Indigenous Governance are some of the most pressing issues facing our society. Hundreds of years of colonial policy towards Indigenous peoples has created unjust results that need to be rectified. The potential for Indigenous Governance is one small way that historical wrongs can be righted, positive lessons can be learned, and a better future can be built for both Indigenous and non-Indigenous Canadians.

I was born and raised on Treaty 4 land in rural Saskatchewan. I have a white settler background, and I grew up in a community with an almost exclusive white settler population. Unfortunately, racist attitudes were occasionally plentiful in my community and I have spent much of my adult life trying to unlearn some of the subtle racism that influenced me as a child.

I attended the University of Saskatchewan and graduated with a degree in Political Studies. My studies began to expose me to the intricate historical and contemporary forms of Indigenous Governance on Turtle Island. I have since been attending law school here at the University of Alberta. By exposing me to the rich possibilities for Indigenous Governance, professors such as Hadley Friedland have been important influences during my studies. I look forward to growing my understanding through this process.

I will try and hold one memory with me as I contribute to ReconciliAction YEG. This past summer, I was driving with my father throughout the rich farmland surrounding my hometown. He took me past the rolling hills north of his farm to some teepee rings left by Cree peoples hundreds of years prior. Seeing these beautiful rings in the long prairie grass and sage bushes was a palpable reminder that Indigenous peoples were present on these lands long before the settler population. Indigenous Governance is a potential way to recognize this reality. 

Thank you very much for reading,

 

Russell Green,

A Member of Team ReconciliAction YEG

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An Overview of Bill 22

Tansi Nîtôtemtik,

Still from Native Counselling Services of Alberta’s “Raising the Spirit: Cultural Connections
Plans for Aboriginal Children”, <www.youtube.com/watch?v=oUCBMjjG0b8&gt>.

In yesterday’s post, we introduced you to Bill C-92, the federal government’s reform in the area of Indigenous child welfare. Today, we consider Alberta’s own legislative response, and how its reform compares to, and will work alongside, Bill C-92.

In December 2018, Alberta’s legislature assented to Bill 22: An Act for Strong Families Building Stronger Communities.[1] The legislation came into force on February 28, 2019. Bill 22 amends Alberta’s Child, Youth and Family Enhancement Act (CYFEA).[2] While the bill’s amendments aim to reform Alberta’s child welfare system generally, certain amendments are specifically included in order to reform how the system approaches Indigenous children and youth.

Key Amendments
One major amendment made to the CYFEA is the addition of specific matters to be considered by the court when determining what are the best interests of the child.[3] Several of these matters are specific to Indigenous children:

(c) in the case of an Indigenous child, the importance of respecting, supporting and             preserving the child’s Indigenous identity, culture, heritage, spirituality, language and traditions; …

(e) the benefits to the child of connections with the child’s culture and cultural communities and opportunities to form those connections; …

(f) the child’s race, spiritual beliefs, colour, gender, gender identity, gender expression, age, ancestry, place of origin, family status, sexual orientation and any disability the child may have; …

(j) any decision concerning the placement of the child outside the child’s family must include a plan to address the child’s need for permanent, formalized ties to people who care about the child and must take into account …

(iii) in the case of an Indigenous child, the benefits to the child of a placement where the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected supported and preserved,

(iv) the benefits to the child of a placement where the child’s familial, cultural, social, linguistic and spiritual heritage are valued as central to the child’s safety, security and development …

Another key amendment is found in Bill 22’s reform to private guardianship orders. Before Bill 22 came into force, guardianship applications could be made under either CYFEA or the Family Law Act (FLA).[4] But whereas the CYFEA required a home assessment be done and a cultural connection plan be created before the permanent guardianship be approved, the FLA did not. In a consequential amendment, Bill 22 closed this “loophole” and now requires that permanent guardianship be sought under the CYFEA alone.[5] This means that, in every case where guardianship is sought in relation to an indigenous child, the application must include a plan “that addresses how the child’s Indigenous identity, culture, heritage, spirituality, language and traditions will be respected, supported and preserved.”[6]

Most notably, Bill 22 provides that First Nations can participate in court proceedings where their children are the subject of permanent guardianship applications. Specifically, bands must be given legal notice when an application is made for permanent guardianship of a child from their community, and may appear or make representations before the court.[7]

Bill 22 & Bill C-92
A guiding principle introduced by Bill 22 to interpret and administer CYFEA holds that “Indigenous people should be involved with respect to the planning and provision of services to and decisions respecting Indigenous families and their children.”[8] However, this involvement is not mandatory, and in no way affords Indigenous communities the jurisdiction to make decisions concerning their own children.

It remains that, beyond providing for band participation in guardianship applications, Bill 22 provides no authority to First Nations over the decisions and administration of child welfare. However, with the federal Bill C-92 having come into force this month, Indigenous communities in Alberta will now be able to enter into coordination agreements with the provincial government and create their own regimes for child services, which will take precedence over the CYFEA.

Bill 22 can be accessed here.[9]

 

Until next time,

Team ReconciliAction YEG

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[1] SA 2018, c 24

[2] RSA 2000, c C-12

[3] See Bill 22, supra note 1, amending s. 2 of CYFEA, supra note 2

[4] SA 2003, c F-4.5

[5] Michelle Bellefontaine, “Bill closes loophole in private guardianships for Alberta kids in care”, CBC News (31 October 2018), online: <www.cbc.ca/news/canada/edmonton/bill-closes-loophole-in-private-guardianships-for-alberta-kids-in-care-1.4886593> [perma.cc/CS4D-2DWW].

[6] Bill 22, supra note 1, s. 5(b), amending s. 52(1.3) of CYFEA, supra note 2

[7] Bill 22, supra note 1, s. 7, adding s. 53.1 to CYFEA, supra note 2

[8] Bill 22, supra note 1, s. 3, adding s. 1.1(d) to CYFEA, supra note 2

[9] “Bill 22: An Act for Strong Families Building Stronger Communities”, Legislative Assembly of Alberta, online: <www.assembly.ab.ca/net/index.aspx?p=bills_status&selectbill=022&legl=29&session=4>.

An Overview of Bill C-92

Tansi Nîtôtemtik,

Welcome back! We are excited to continue learning alongside you this term. We will be wrapping up our topic of child welfare and then moving on to explore themes and issues around Indigenous Governance and the law in Canada. This week, we are exploring legislative responses to some of the identified issues facing Indigenous child welfare in Canada. Today’s post provides an overview of the main components of Bill C-92 (the “Bill”) or, An Act Respecting First Nations, Inuit, and Métis children, youth, and families[1]. The Bill is the federal legislative response to years of “advocacy work, decades of research, testimonies from child welfare survivors, and calls from First Nations, Inuit, and Métis children.”[2]

National Principles
The federal Bill, which came into force last week on January 1, 2020, importantly contains a set of national principles intended to govern the provision of Indigenous child welfare and family services in the future. The principles of the best interests of the child and of cultural continuity  emphasize a number of factors to be applied in administering the provisions of the Bill. These factors include taking into account, among other things: a child’s cultural, linguistic, religious, and spiritual upbringing, and heritage; the nature and strength of the child’s relationship parents and other family members; and plans for the child’s care according to the customs and traditions of the Indigenous group, community or people to which the child belongs.[3] The principle of substantive equality affirms the child’s right to have their views and preferences considered in decisions that affect them without discrimination. The principle similarly extends to the right of the Indigenous governing bodies to have the views and preferences of the Indigenous group for whom they act to be considered in decisions that affect that Indigenous group or community without discrimination.[4]

Jurisdiction
The Bill explicitly affirms the inherent right to self-government of Indigenous groups and communities under the Constitution Act, 1982 extends to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.[5] In addition, the Bill provides that where the law of an Indigenous group, community or people conflicts with a provincial Act or regulation, the former shall prevail to the extent of the conflict or inconsistency, provided it is in the best interests of the child and complies with the Charter and human rights legislation.[6]

 Responses to Bill C-92
The Bill has been the topic of much discussion as it moved through the legislative process before finally receiving Royal Assent in June of 2019. While there are positive aspects of the Bill, the overall opinion is that it falls short of bridging the gap to what is needed in the provision of Indigenous child and family services in Canada. In March of 2019, five prominent Indigenous law professors across Canada, including: Naiomi Walqwan Metallic, Hadley Friedland, Sarah Morales, Jeffrey Hewitt, and Aimée Craft, authored the report An Act respecting First nations, Inuit, and Métis Children, Youth and Families: Does Bill C-92 Make the Grade?[7] The Report assessed the federal Bill according to 5 areas:

• National Standards: How well does the Bill provide a set of national standards in administering Indigenous children and family services in a unified manner across Canada?[8]
• Funding: How well does the Bill work to counteract the issue of underfunded Indigenous child welfare services across Canada? Does the Bill provide a way to implement the ongoing call for funding for child and services that is predictable, stable, and sustainable?[9]
• Accountability: How well does the Bill recognize the Canadian government’s responsibility for ensuring Indigenous people receive adequate, basic services?[10]
• Jurisdiction: How well does the Bill provide for Indigenous groups to exercise their inherent jurisdiction over child and family welfare services?[11]
• Data Collection & Reporting: Does the Bill provide for accountability in the form of an obligation on the Canadian government to collect and report data on the sufficiency of the basic services provided to Indigenous children and families?[12]

The authors provide an excellent and concise overview of the five key areas explaining why each is important; how the Bill measures up in each key area; and what could have been done to better meet the needs of Indigenous children and families interacting with child welfare services in Canada. You can read the full report here.[13]

While the extensive coverage and discussion of this new piece of legislation might say otherwise, Bill C-92 is still in its early days, having only come into force last week. The coming months will see its provisions interpreted and administered for the first time and just how well it measures up remains to be seen.

 

Until next time,

Team ReconciliAction YEG

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[1] 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] Brett Forester quoting Hadley Friedland in “Federal Indigenous child welfare Bill C-92 kicks in – now what?”, APTN National News (1 January 2020), online: <aptnnews.ca/2020/01/01/federal-indigenous-child-welfare-bill-c-92-kicks-in/> [perma.cc/5ATW-ZEJN].

[3] Supra note 1, s 10(1)-(2).

[4] Ibid, s 10(3).

[5] Ibid, s 18(1).

[6] Ibid, s 22(1).

[7] Yellowhead Institute, An Act respecting First nations, Inuit, and Métis Children, Youth and Families: Does Bill C-92 Make the Grade? (Toronto: Ryerson University, 2019) online (pdf): Yellowhead Institute <yellowheadinstitute.org/wp-content/uploads/2019/03/does-bill-c-92-make-the-grade_-full-report.pdf> [perma.cc/E8ZT-E49K].

[8] Ibid at 5.

[9] Ibid at 9.

[10] Ibid at 11.

[11] Ibid at 14.

[12] Ibid at 19.

[13] Supra note 7.

How has Canada Responded to the 2015 TRC's Calls to Action on Child Welfare?

Tansi Nîtôtemtik,

The Star, Highlights of Truth and Reconciliation Commission’s recommendations on residential schools (2 June 2015) <www.thestar.com/news/canada/2015/06/02/highlights-of-truth-and-reconciliation-commissions-recommendations-on-residential-schools.html>.

The Truth and Reconciliation Commission’s (TRC) Calls to Action set out in the TRC Final Report highlight five Calls to Action specifically for child welfare.[1] The Government of Canada has outlined their efforts to address these calls. This post will provide an overview of what the federal government has said that they have done to address the Calls to Action concerning child welfare.

Call #1 calls on federal, provincial, territorial, and Aboriginal governments to reduce the number of children in care.[2] The Government of Canada has outlined that they have attempted to address this Call by increasing funding for First Nation Child and Family Services in an effort to provide more robust culturally appropriate services.[3] The Government of Canada has also noted that they have supported the safety of First Nations children living on reserve by reimbursing funding based on the actual costs for First Nations child and family services.[4]

Call #2 calls on the federal government to prepare and publish annual reports on the number of Aboriginal children in care, compared to non-Aboriginal children, as well as the reasons for apprehension, the total spending on preventative and care services and the effectiveness of various interventions.[5] The federal government has said that as of Fall 2018, they are working on developing a data reporting strategy to address this Call.[6] No report as outlined in this Call has been released to date.

Call #3 calls on all levels of government to fully implement Jordan’s Principle.[7] The federal government has made $679.9 million available for Jordan’s Principle since 2016.[8] In that time, 341,000 products, services, and supports were approved under Jordan’s Principle.[9] Indigenous Services Canada has also fully implemented Jordan’s Principle and efforts are being taken to ensure that Indigenous children are receiving the supports that they need.[10] The federal government has also announced an increase in funding to ensure that children obtain appropriate care.

Call #4 calls upon the federal government to enact legislation that establishes national standards for the apprehension of Aboriginal children and custody cases.[11] The Call asks that the legislation should affirm the right of Aboriginal governments to establish and maintain their own child-welfare agencies, to require all child-welfare agencies and courts to take the residential school legacy into account in decision-making, and establish, as a priority, a requirement that placement of Aboriginal children into care shall be culturally appropriate.[12] In 2019, the federal government introduced Bill C-92, an Act respecting First Nations, Inuit and Métis children, youth and families.[13] The Act came into force on January 1, 2020. We will be providing an in depth discussion of this Act tomorrow and will be outlining some of the provincial responses to this Call on Thursday.

Call #5 calls upon the federal, provincial, territorial, and Aboriginal governments to develop culturally appropriate parenting programs for Aboriginal families.[14] Indigenous Services Canada was implemented with the intention to provide a wide range of supports to Indigenous children and families.[15] In addition, the federal government has increased funding and established a specific Community Well-Being and Jurisdiction Initiatives stream of funding to support First Nations communities to lead the development and delivery of prevention services.[16]

Despite the efforts outlined by the federal government, many have questioned whether enough has been done. The Canadian Human Rights Tribunal has issued eight different orders to the federal government to stop discriminating against Indigenous children in child welfare programs and services.[17] Each order is a response to the previous order not being implemented. Further, Call # 2 has not yet been effectively addressed. Minister of Indigenous Services, Jane Philpott, held an “emergency” meeting in 2018 which resulted in the development of six “points of action”.[18] One of the points of action is to develop “a data and reporting strategy with provinces, territories and Indigenous partners.”[19] No more information was provided on a timeline for the development of this data and reporting strategy, nor were specifics provided to show how it would align with the other elements of Call # 2. Since the emergency meeting, it does not appear that much more has been done to develop this strategy. We will be providing an analysis of the strengths and shortcoming of Bill C-92 and similar provincial legislation in the coming days. Bill C-92 has also been the subject of significant criticism suggesting that it too is insufficient for addressing child welfare issues.[20]

While it appears that some progress has been made on the Calls to Action since their release, it also appears that significantly more must be done. It is imperative that the solutions to these issues do not stop at the planning stage. Full implementation of solution efforts is essential to ensure that the child welfare issues outlined in the TRC Calls to Action are addressed.

 

Until next time,

Team ReconciliAction YEG

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[1] Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa: TRCC, 2015), online: <https://nctr.ca/assets/reports/Final%20Reports/Executive_Summary_English_Web.pdf> [TRC Summary].

[2] Ibid at 139-140.  

[3] Government of Canada, “Delivering on Truth and Reconciliation Commission Calls to Action: Child Welfare”, Government of Canada (website), online: <https://www.rcaanc-cirnac.gc.ca/eng/1524494379788/1557513026413> [Government of Canada].

[4] Ibid.  

[5] TRC Summary, supra note 1 at 140.

[6] Government of Canada, supra note 3.

[7] TRC Summary, supra note 1 at 143; For a deeper discussion on Jordan’s Principle see our post “Jordan’s Principle: Is the Government Truly Putting the Child First?”: <https://ualbertalaw.typepad.com/faculty/2017/10/jordans-principle.html>.

[8] Government of Canada, supra note 3.

[9] Ibid. Note that specifics on how the 341,000 number was calculated is not outlined by the federal government.

[10] Ibid.

[11] TRC Summary, supra note 1 at 143.

[12] Ibid at 144.

[13] Ibid.

[14] TRC Summary, supra note 1 at 144.

[15] Government of Canada, supra note 3.

[16] Ibid.

[17] Tom McMahon, “Truth and Reconciliation? What Truth and Reconciliation?” (7 October 2019), The Tyee (online): <https://thetyee.ca/Opinion/2019/10/07/What-Truth-And-Reconciliation/>.

[18] CBC News, “Beyond 94” (18 October 2019), CBC News (online): <https://newsinteractives.cbc.ca/longform-single/beyond-94?&cta=2>.

[19] Ibid.

[20] Naiomi Walqwan Metallic, Hadley Friedland, Jeffery Hewitt, Sarah Morales, and Aimee Craft, “Bill C-92: An Act Respecting First Nations, Inuit, and Metis Children, Youth, and Families”, Yellowhead Institute (online): <https://yellowheadinstitute.org/bill-c-92-analysis/#analysis1>.

 

Welcome Back!

Tansi Nîtôtemtik,

Tom Hanson/Canadian Press. Found at: “First Nation Children in Child Welfare System a ‘Systematic Problem’ (8 June 2015) CBC, online: <www.cbc.ca/news/canada/nova-scotia/first-nation-children-in-child-welfare-system-a-systematic-problem/>.

Happy 2020 and welcome back to another semester of ReconciliAction YEG! We had a great first semester and are looking forward to further research and information sharing with our readers. We are also excited to announce that we are starting this semester with a new team member: Russell. Check out his introduction post this Friday.

We will start off this semester the same way we ended last semester: Child Welfare. Our team is particularly interested in this topic and we had more to say. Consequently, we decided to include an additional two weeks of content on child welfare.

We will continue to discuss child welfare over the next two weeks. We will begin the discussion by considering federal and provincial governmental responses to the child welfare issue. We will consider the federal government response to the Truth and Reconciliation Commission’s Calls to Action for child welfare. We will then look at, Bill C-92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families which came into force on January 1, 2020.[1] Our consideration of provincial responses will include Alberta’s Bill 22.

The second week of this topic will be focused on Indigenous Community responses the child welfare. This will include posts on community-based programs, reunification, a highlight on community-based groups, and resistance and Indigenous People’s Bodies.

Following the conclusion of our discussions on child welfare, we will begin a discussion of alternatives to the Indian Act.[2] We will discuss whether abolishing the Indian Act is a good thing and whether there are other alternatives that are better suited to modern day needs.

We are very much looking forward to another semester of learning!

 

Until next time,

Team ReconciliAction YEG

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[1] An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (Bill C-92), 2019 c 24.

[2] Indian Act, RSC, 1985, c I-5.