(Image Credit: Debwe, led by Mushkiiki Nibi Kwe (Lindsey Lickers) with artists Leah Roberts, Maybella King Reynolds & Shaneixqui Brown.)
Tansi Nîtôtemtik,
TRC Call to Action #4 calls for federal legislation that establishes a national standard for Indigenous child welfare. These national standards were to include provisions that;
- Affirm the right of Indigenous governing bodies to manage their own child welfare;
- Require the legacy of residential schools to be considered by decision-makers in courts and child welfare agencies, and
- Establish a placement requirement that prioritizes culturally appropriate care.[1]
The Act Respecting First Nations, Inuit and Métis Children,Youth and Families (the Act, formerly Bill C-92) came into force in January 2020.[2] ReconciliAction YEG wrote about Bill C-92 both after it was first introduced, and after the Act came into force.[3] We won’t reinvent the wheel with today & tomorrow’s post, but we want to specifically address how this legislation responds to the Call of the TRC.
The Act directly acknowledges the TRC Call for a legislated national standard in the preamble, which on the surface, immediately addresses Call to Action #4. It states:
Whereas the Truth and Reconciliation Commission of Canada’s Calls to Action calls for the federal, provincial and Indigenous governments to work together with respect to the welfare of Indigenous children and calls for the enactment of federal legislation that establishes national standards for the welfare of Indigenous children.[4]
Additionally, section 8(a) of the Act states that the purpose of the Act is to “affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services”.[5]
While this legislation is a huge step forward with its statutory recognition of Indigenous government’s inherent jurisdiction over child welfare, it has been problematic from its introduction. Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, called the legislation “a colonial Faustian bargain” in that it requires Indigenous groups to “accept the flawed bill in its current state or get nothing.”[6] These flaws include a total lack of statutorily allocated funding, over-reliance on the best interests of the child as interpreted by colonial courts, failure to fully recognize Indigenous jurisdiction, and no measures for accountability or data collection.[7] The Yellowhead Institute published an in-depth assessment of the benefits and drawbacks of the final iteration of the Bill just after it was passed, but understanding the bargain referred to by Dr. Blackstock means understanding the two phases of the legislation.[8]
Phase 1 of the Act is the National Standards. This became effective immediately upon enactment, and sets a floor for how Indigenous child welfare must operate.[9] Where the Act conflicts with provincial law, the Act takes precedent.[10] This is a positive, because provincial child welfare standards vary from province to province, and the National standard will ensure that this minimum standard is consistent across Canada.
Phase 2 of the Act is where Indigenous Laws can prevail over the National Standard, and the existing Provincial law. On its face, this sounds like a positive, but looking closer at the provisions acknowledging inherent jurisdiction, it appears more like inherent jurisdiction, if Canada says so. Indigenous governing bodies can exercise jurisdiction either by giving notice of intent, or by making a request to enter into a coordination agreement with the relevant governments.[11] Notice of intent to exercise jurisdiction allows the Indigenous governing body to handle child welfare matters according to provincial and federal law, but does not give force to Indigenous laws.[12] A coordination agreement would allow both jurisdiction and prevailing Indigenous law if reasonable efforts were made to reach an agreement within 12 months, and if the prevailing Indigenous law is not in conflict with the “best interests of the child”.[13]
Team ReconciliAction assigns a grade of C+ to the federally legislated national standard, and a grade of D to the Act’s affirmation of inherent jurisdiction. While a national standard for Indigenous child welfare has set a floor for the care of Indigenous children, the floor appears to be too low still without any allocated funding or accountability measures included as part of the standard. Additionally, an affirmation of the inherent jurisdiction that was never relinquished by Indigenous groups in the first place, merely amounts to lip service when colonial oversight is still imposed.
Check back tomorrow for more on Call to Action #4, and tell us what you think of our assessment below!
Until next time, Team ReconciliAction YEG
1 Truth and Reconcilliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconcilliation Commission of Canada. (Ottawa: Truth and Reconciliation Commission of Canada, 2015) at 320.
2 An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019, c 24 [The Act].
3 ReconciliAction YEG, “Systemic Barriers and Indigenous Children: Bill C-92”, (21 March 2019), online: University of Alberta Faculty of Law Blog <https://ualbertalaw.typepad.com/faculty/2019/03/systemic-barriers-and-indigenous-children-bill-c-92.html>; ReconciliAction YEG, “An Overview of Bill C-92”, online: University of Alberta Faculty of Law Blog <https://ualbertalaw.typepad.com/faculty/2020/01/an-overview-of-bill-c-92.html>.
4 The Act, supra note 2 [emphasis added].
5 Ibid, s 8.
6 Cindy Blackstock, “Opinion: Will Canada continue to fail Indigenous girls?”, The Globe and Mail (6 June 2019), online: <https://www.theglobeandmail.com/opinion/article-will-canada-continue-to-fail-indigenous-girls/>.
7 Naiomi Walqwan Metallic, Hadley Friedland & Sarah Morales, The Promise and Pitfalls of C-92: An Act respecting First Nations, Inuit, and Métis Children, Youth and Families (Toronto, Ontario: Yellowhead Institute, 2019).
8 Ibid.
9 The Act, supra note 2, ss 4, 8(b).
10 Ibid, s 4.
11 Ibid, s 20.
12 Ibid, s 20(3).
13 Ibid, ss 10–15, 20(3), 21, 22, 23.
