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Lets Talk Gaps in Education for On & Off Reserve First Nations Peoples

Tansi Nîtôtemtik,

    8. We call upon the federal government to eliminate the discrepancy in federal education funding for First Nations         children being educated on reserves and those First Nations children being educated off reserves. ^[1]

TRC Call to Action #8 is aimed at addressing gaps in the provision of basic services of education for on and off reserve members and reforming institutionalized inequities in the quality and delivery of educational programs.^[2] These gaps are not only important for the Canadian government to acknowledge and address, but important for all for Canadians to be made aware of because education is a basic inherent human right.  This right that has that has been bungled horrifically by the past actions of Canadian governmental policies (i.e. Residential Schools).^[3] Indigenous peoples got too much so called “education” (and we use that term very loosely) and now too little because of the lack of support and funding available for those wishing to pursue education betterment of themselves and communities.

To eliminate the discrepancy between federal educational funding for First Nations on and off reserve, comparable funding should be a matter of grave importance and principle. Funding should also make way for successful inclusion of languages, culture, and traditional knowledge in accordance with each Nation’s history. In other words, funding should not only be provided for colonial education.

What do we mean when we mention gaps? These can include attainment and access to education, quality of education and the lack of comparable funding from different applicable levels of government. For many First Nations youth, particularly those on reserve, completing even high school is an unattainable goal. According to the Aboriginal Affairs and Northern Development Canada (AANDC) Nominal Roll Database in 2010/2011^[4], the graduation rate of First Nations people living on reserve in 2011 was 35.3 percent, compared to78 percent for the general population as a whole. ^[5]

To help address the education attainment gap, the Government of Canada has made significant investments, totaling $2.6 billion over 5 years for primary and secondary education on reserve. This includes funding to address immediate needs and to keep pace with cost growth over the medium term, as well as investments in language and cultural programming and literacy and numeracy. In addition, also working closely with various First Nations partners to implement an inclusive and comprehensive engagement process for education on reserve. ^[6] However, this funding fails to address off-reserve members and has yet to be proven effective or adequate. On January 21, 2019, a new co-developed policy and improved funding approach to better support the needs of First Nations students on-reserve was announced. This policy claims to replace outdated programs and improve access to predictable core funding that is comparable to provincial systems. Time will tell if the new funding approach proves fruitful and effective, and ReconciliAction YEG will keep an eye on this.

Looking at off-reserve education gaps, it is promising to see some provincial efforts to offer community-driven approaches to improve education and job training for Aboriginal people living off-reserve. For example, British Columbia’s Off-Reserve Aboriginal Action Plan (ORAAP) Protocol Agreement is a great initiative that all provinces should emulate.[6] For other off-reserve members, access to various bursaries and grants such as Indspire for example is available, ^[7] but it appears that off-reserve members face a barrier to accessing funding if their bands cannot assist. More work is needed to fill this gap. More work is needed everywhere and though on-reserve gaps are being acknowledged and acted upon, education gaps off-reserve remain.

Until next time ReconciliAction YEG

 

[1] http://trc.ca/assets/pdf/Calls_to_Action_English2.pdf

[2] Canadian Geographic, “History of Residential Schools” online: <indigenouspeoplesatlasofcanada.ca/article/history-of-residential-schools/>.

[3] Trends in high school graduation rates of First Nation students ordinarily resident on reserve, from 2006/07 to 2010/11, Aboriginal Affairs and Northern Development Canada (AANDC) Nominal Roll Database

[4] Don Drummond & Ellen Kachuck Rosenbluth, “The Debate on First Nations Education Funding: Mind the Gap” (2013) Queen’s University Working Paper No 49, online: <queensu.ca/sps/sites/webpublish.queensu.ca.spswww/files/files/Publications/workingpapers/49-Drummond-Rosenbluthv3.pdf>.

[5] Government of Canada, “Delivering on Truth and Reconciliation Committee Calls to Action” online: Education <rcaanc-cirnac.gc.ca/eng/1524495412051/1557511602225>. 

[6] Government of British Columbia, “Off-Reserve Aboriginal Action Plan (ORAAP)” online: <2.gov.bc.ca/gov/content/governments/indigenous-people/supporting-communities/urban-off-reserve-aboriginal-people/off-reserve-aboriginal-action-plan-oraap>.

[7] Indspire, “Students”, online: <indspire.ca/programs/students/>. 

Joyce Echaquan: Death by Racism

 

Tansi Nîtôtemtik,

 

Our schedule this week includes evaluations of Calls to Action #6 through #12, which focus on reconciliation as it relates to education. However, recent events have necessitated we pause this work for today. 

(Image Credit: THE CANADIAN PRESS/Paul Chiasson)

Last week, an Indigenous mother of seven filmed her final moments from a hospital bed. Joyce Echaquan pleaded for help while the nursing staff made cruel and racist remarks about her.^[1]  This woman was treated as contemptible and worthless by the medical staff charged with her care.  Joyce died of complications from hospital-administered morphine shortly after she live-streamed her inhumane treatment.^[2]

 

Today, we honor Joyce and bring attention to the gap in adequate healthcare for Indigenous people. Joyce was an Atikamekw woman from the Manawan Reserve community in central Quebec.^[3] She was 37 years old, and a mother to seven children ranging from 7 months old to 19 years old.^[4] Her seven children and bereaved husband are left to pick up the pieces after her entirely preventable death. 

 

The notion that Indigenous people experience difficulty in receiving necessary health care is not new. For her part, Joyce had struggled with heart health for some time, and had often expressed fear of the hospital.^[5]  Joyce is not the first Indigenous person in Canada to die needlessly in the care of our health systems due to systemic and ingrained racism. In 2008, Brian Sinclair died of a treatable bladder infection after being ignored in a waiting room for 34 hours.^[6]  In 2016, Elder Hugh Papik had a stroke, but  was dismissed as drunk by hospital staff, and later died.^[7] In 1988, Katie Ross died of an untreated gunshot wound while strapped to the hospital bed, after medical staff failed to properly assess her and diagnosed her with anxiety.^[8] Today we ask what is Canada doing to ensure that all Canadians have access to the same standard of care?

 

Canada has a serious data deficit when it comes to collecting accurate, up-to-date and complete data on health outcomes for First Nations, Métis and Inuit.^[9] We do know that health indicators like infant mortality, life expectancy, and access to health services lag behind for Indigenous people in comparison to non-Indigenous people.^[10] We also have horrific and extreme accounts of racism in healthcare experienced by Indigenous people - including forced sterilization in the prairie provinces as recently as 2018.^[11]

 

TRC Call to Action #24 calls for training for health care professionals to combat racism and understand the effects of the legacy of colonialism on Indigenous people.^[12]  As we will show in a few weeks, this type of training has been implemented in various forms across Canada.^[13] Outside of the TRC, other reports have been released addressing inequity in healthcare. In Quebec where Joyce sought medical care, the Viens Report issued 142 Calls to Action specific to the Quebec health care system and its treatment of Indigenous people.^[14] 

 

Despite the action taken to date, in September 2020, Joyce Echaquan died in hospital of racism. Following her death, the Premier of Quebec denied any issue of systemic racism.^[15] Sit with that for a second—the Premier flatly ignored the 488 page Viens Report and its 142 Calls to Action that target Quebec’s racism problem. Straight up denial is right out of the tired, old, racist playbook. It is tragic that Joyce’s husband and children would probably have welcomed her home after being treated in hospital if it weren’t for racism. It is unacceptable that in 2020 Joyce’s necessary medical care was ignored because of racism. 

 

Today we honor the life of Joyce Echaquan, who should still be with us today.  We support the protestors in Quebec who joined the Justice for Joyce march this past Saturday.  Most of all, we mourn along with Joyce’s seven children and her husband at the untimely loss of their mother and wife. 

(Image Credit: Global News)

A Go Fund Me has been organized for the care of Joyce’s seven children, if you would like to contribute you can do so here.  

 

Tomorrow we will return to our evaluation of TRC Call to Action #6.

 

Until Next Time,

 

Team ReconciliAction YEG

 

 

¹ We will not be providing a source for this video, as ReconciliAction does not support the plague of voyeurism of BIPOC death.

² Jesse Feith, “Indigenous woman records slurs by hospital staff before her death”, (30 September 2020), online: Montreal Gazette <https://montrealgazette.com/news/local-news/indigenous-woman-who-died-at-joliette-hospital-had-recorded-staffs-racist-comments>.

³ Kristy Kirkup & Tu Thanh Ha, “Indigenous woman records slurs, taunts of Quebec hospital staff before her death”, The Globe and Mail (29 September 2020), online: <https://www.theglobeandmail.com/canada/article-indigenous-woman-records-slurs-taunts-of-quebec-hospital-staff-before/>.

⁴ Ibid.

⁵ Jesse Feith, supra note 2

⁶ Jane Gerster, “A man was ignored to death in an ER 10 years ago. It could happen again”, (21 September 2018), online: Global News <https://globalnews.ca/news/4445582/brian-sinclair-health-care-racism/>.

⁷ “Review into Hugh Papik’s death calls for cultural training for health care workers”, (27 February 2017), online: CBC News <https://www.cbc.ca/news/canada/north/hugh-papik-aklavik-stroke-death-review-recommendations-1.4001279>.

⁸ Heather I Peters & Bruce Self, “Colonialism, Resistance and the First Nations Health Liaison Program” (2005) 4:1 Currents: New Scholarship in the Human Services 12.

⁹ An Overview of Aboriginal Health in Canada (Prince George, BC: National Collaborating Center for Indigenous Health, 2013) at 3.

¹⁰ Brenda Gunn, Ignored to Death: Systemic Racism in the Canadian Healthcare System (Submission to EMRIP the Study on Health, Robson Hall Faculty of Law, University of Manitoba, 2016) [unpublished] at 5.

¹¹ Avery Zingel, “Indigenous women come forward with accounts of forced sterilization, says lawyer”, CBC News (18 April 2019), online: <https://www.cbc.ca/news/canada/north/forced-sterilization-lawsuit-could-expand-1.5102981>.

¹² 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 322.

¹³ See “The Royal College of Physicians and Surgeons of Canada :: Indigenous health”, online: <http://www.royalcollege.ca/rcsite/health-policy/initiatives/indigenous-health-e>.

¹⁴ Government of Quebec, Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec: listening, reconciliation and progress (Quebec, 2019).

¹⁵ Kristy Kirkup & Tu Thanh Ha, supra note 3.

5 Years after TRC: A National Standard (Part 2)

(Image credit: Louise Brown, Toronto Star, "A study in First Nations 101" (June 20, 2006) online: canadiancrc.com/Newspaper_Articles/Tor_Star_First_Nations_101_20JUN06.aspx)

Tansi Nîtôtemtik, 

Today’s post continues our assessment of TRC Call to Action #4, specifically in relation to the following requirements of the national standard for Indigenous child welfare: 

    ii. Require all child-welfare agencies and courts to take the residential school legacy into account in their decision making. 

    iii. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally                               appropriate. 

The Residential School Legacy

While the last Residential School officially closed its doors in 1996,^[1] the legacy lives on. The number of Indigenous children in government care currently triples the number of those in residential schools at the height of their operation.^[2] 

Canada’s systemic removal of Indigenous children from their families, culture and communities through the Residential School system has resulted in generations of shared trauma, abuse and disconnection from culture. The impact of the Residential School system underlies a significant amount of child protection involvement.^[3] Therefore, it is unrealistic for child welfare agencies and courts not to take the Residential School legacy into consideration when making decisions regarding Indigenous children. 

The preamble of The Act Respecting First Nations, Inuit and Métis Children, Youth and Families^[4] recognizes TRC Call to Action #4 by recognizing the harm caused by Residential Schools. However, as noted in the Yellowhead Institute Paper, “an acknowledgment is not a commitment to do any particular thing.”^[5] A statutory requirement that child welfare agencies and courts consider the impact of Residential Schools is a governmental  commitment to healing that goes beyond the hollow recognition in the Act . 

Indian Child Welfare Act:^[6] The Gold Standard

The United States enacted the Indian Child Welfare Act (CWFA) in 1978, in response to overrepresentation of Indigenous children in the child welfare system. The CFWA is exemplary as it empowers Indigenous communities with inherent jurisdiction to resolve matters involving children in need of care.^[7] 

When determining the best course of action for an Indigenous child, the ICWA requires US courts to consider the following:

1. A genuine desire from the biological parents to place an Indigenous child in care.^[8]
2. Active efforts to keep the family together (e.g. rehabilitative programs) to be unsuccessful before any placement is ordered. ^[9]
3. A higher burden of proof to require placement/adoption.^[10]
4. A legislated order for placement to keep the child close to their family and community.^[11]

Placement of children in care

“...the significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond that develops with the prospective adoptive parents the less important the racial element becomes.”^[12]

The above statement from the 1983 Supreme Court decision, Racine v Woods demonstrates the problematic thinking which led to the separation of generations of Indigenous families. In Woods, the Court ruled that it would be in the best interests of Leticia Racine, a seven-year-old girl, to stay with her non-Indigenous adoptive parents rather than with her Indigenous mother. 

Under the new legislation, Indigenous child placement is determined under a priority system with parents first, other family members, other community members, another Indigenous family, and finally, any other adult. However, there is a caveat--the priority system is only used to the extent that it is consistent with the best interests of the child.^[13] As jurisdiction is an area of ambiguity in the Act (see yesterday’s post for discussion), interpretation of BIOC in the context of Indigenous child welfare raises concerns.^[14] What standards will be used to determine BIOC? Can federal and provincial governments unilaterally override decisions about the best interests of Indigenous children? 

Quebec has challenged the Act on grounds of exclusive provincial jurisdiction over Indigenous child welfare matters.^[15] Other Canadian courts have begun to apply the principles of the Act. Generally, it appears that courts consider the federal nature of the Act as paramount to provincial legislation,^[16] However some courts have failed to consider the placement priority  in the Act if alternatives were not presented, perpetuating the removal of children from family and community.^[17] Although we are only eight months into the new legislation, some positive change seems to be coming from its application.

¹Union of Ontario Indians, An Overview of the Indian Residential School System, (2013) online (pdf):www.anishinabek.ca/wp-content/uploads/2016/07/An-Overview-of-the-IRS-System-Booklet.pdf at 2.

²Yellowhead Institute, An Act respecting First Nations, Inuit, and Métis Children, Youth and Families Does Bill C-92 Make the Grade? (March 21, 2019) online (pdf): yellowheadinstitute.org/wp-content/uploads/2019/03/does-bill-c-92-make-the-grade_-full-report.pdf at 5 [Yellowhead Institute Paper].

³Ardith Walkem, WRAPPING OUR WAYS AROUND THEM: Aboriginal Communities and the Child, Family and Community Service Act (CFCSA) Guidebook, (ShchEma-mee.tkt Project (Nlaka’pamux Nation Tribal Council): 2015), online (pdf): cwrp.ca/sites/default/files/publications/en/wowat_bc_cfcsa_1.pdf at 8.

⁴An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019, c 24, Preamble [The Act]. (“Whereas Parliament recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices;”)

⁵Yellowhead Institute Paper, supra note 2 at 9.

⁶Indian Child Welfare Act, 25 USC §1901–1963 (1978) [ICWA].

⁷Sébastien Grammond, "Federal Legislation on Indigenous Child Welfare in Canada." Journal of Law and Social Policy 28:1. (2018): 132-151 at 141. https://digitalcommons.osgoode.yorku.ca/jlsp/vol28/iss1/7

⁸Ibid.

⁹Ibid.

¹⁰Ibid.

¹¹Ibid at 142.

¹²Racine v Woods, [1983] 2 SCR 173, 187-88.

¹³The Act, supra note 4 at 16(1).

¹⁴Yellowhead Institute Paper, supra note 2 at 17-18.

¹⁵See Jon Goud, “Quebec’s Misguided Challenge to Federal Indigenous Child Welfare Law” (Jan 23, 2020) blog: blogs.dal.ca/dlj/2020/01/23/quebecs-misguided-challenge-to-federal-indigenous-child-welfare-law/. (This appeal has been criticized as one that will simply delay much needed change in the child welfare system).

¹⁶See British Columbia (Child, Family and Community Service) v. S.H., 2020 BCPC 82 and Alberta (Child, Youth and Family Enhancement Act, Director) v K.C, 2020 ABPC 62.

¹⁷See Huron-Perth Children’s Aid Society v. A.C., 2020 ONCJ 251 (See paras 127-28, where the Court takes note of the parents' limited connection to their Metis culture in determining that the children should stay with a Metis foster family). 

5 Years After TRC: A National Standard

(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.

5 Years After TRC: Reducing Children in Care Part 2

Tansi Nîtôtemtik, 

(Image credit: APTN, “Child Welfare”, (2 November 2018), online: aptnnews.ca/topic/child-welfare/>) 

In today’s blog post, we evaluate whether the individual recommendations for reducing the number of Indigenous children, as set out in TRC Call to Action #1, have seen any progress to date. Five specific recommendations were made:

1. Monitoring and assessing neglect investigations.
2. Providing adequate resources to enable Aboriginal communities and child-welfare organizations to keep Aboriginal families together where it is safe to do so, and to keep children in culturally appropriate environments, regardless of where they reside.
3. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the history and impacts of residential schools.
4. Ensuring that social workers and others who conduct child-welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing.
5. Requiring that all child-welfare decision makers consider the impact of the residential school experience on children and their caregivers.^[1]

Neglect

The most common reported reason for maltreatment of Indigenous children to child protection agencies in Canada is neglect.^[2] Neglect is defined as “a caregiver’s failure or inability to provide a minimal standard of age-appropriate care”.^[3]However, in many Indigenous families, the root cause of neglect is often related to structural factors like poverty, inadequate housing and colonial factors such as residential schools and related trauma.^[4] Therefore it is important to monitor and assess child neglect investigations to understand the root causes of neglect and determine whether other services can be provided to prevent apprehension. 

At the 2018 Emergency Meeting on Indigenous child and family services, a need for monitoring and assessing neglect investigations was again recognized, for example, through an independent National Ombudsperson on Child Welfare or a national Indigenous child advocate.^[5] As of yet, those recommendations have not been implemented.

Resources to keep Indigenous families together

The separation of Indigenous families comes at a great cost. The discriminatory practices of the Government through the child welfare system has been recognized in the First Nations Family and Caring Society cases^[6], where the Canadian Human Rights Tribunal (CHRT) found that the Government willfully and recklessly discriminated against First Nations children and families.^[7] In 2019, the CHRT ordered Canada to pay the maximum possible award to victims of their discriminatory practices.^[8] However, the decision has been appealed by the Government for judicial review.^[9] The Government’s lack of accountability for their reckless and willful discrimination is disheartening. 

For further reading on the CHRT tribunal proceedings, see Cindy Blackstock’s article here. We will be taking a more in-depth look into the other changes to the child welfare system through Bill C-92 next week. Stay tuned!

Education of child-welfare decision makers

The relationship between Indigenous families and social workers is historically fraught. Social workers were involved in the apprehension of Indigenous children during the Sixties Scoop, Residential School system, and they continue to be front-line actors in the child welfare system.^[10] Therefore, it is of great importance for social workers to understand the historical legacy of destructive colonial structures and focus on the strength of Indigenous communities to heal.

Within 24 hours of the release of the TRC’s final report, the Canadian Association for Social Work Education (CASWE) passed a motion recommending a mandatory course in Indigenous social work for all Canadian social work students.^[11] Further, the Canadian Association of Social Workers (CASW) responded to the TRC by prioritizing reconciliation in their 2016-2020 Strategic Plan.^[12] While these steps demonstrate some recognition of the need for education, more work needs to be done to ensure that the child welfare system actually supports Indigenous families rather than perpetuating trauma and familial separation.^[13]

The fifth specific recommendation for implementing TRC Call to Action #1 is a requirement for child welfare decision makers to consider the residential school experience. While it seems that consideration of the impact of residential schools on children and families is encouraged, no such requirement has been implemented.

¹Truth 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 1.

²Marlyn Bennett for the National Collaborating Center for Aboriginal Health, “Understanding Neglect in First Nations Families” (2013), online (pdf): <ccnsa-nccah.ca/docs/health/FS-UnderstandingNeglect-Bennett-EN.pdf>.

³Ibid.

⁴Ibid.

⁵Celeste McKay, et al, “A report on children and families together: An Emergency Meeting on Indigenous child and family services” (January 25-26, 2018), online: <sac-isc.gc.ca/eng/1531151888537/1531152018493> (see recommendation 20 and 42).

⁶First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2; First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (Minister of Indigenous and Northern Affairs Canada), 2018 CHRT 4; First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2019 CHRT 39.

⁷See First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2019 CHRT 39 at para 15.

⁸The maximum possible remedial award under the Canadian Human Rights Act is $20,000.

⁹First Nations Child and Family Services, “Canada's actions since the January 2016 CHRT decision” (July 6, 2020) online: <sac-isc.gc.ca/eng/1500661556435/1533316366163>.

¹⁰Angel Compton-Osmond, “Aboriginal Community Social Work: Committing to Anti-Oppressive Practice” ( National Webinar, September 26, 2017), online (pdf): <casw-acts.ca/sites/casw-acts.ca/files/attachements/angel_compton-osmond_sep_26.pdf>.

¹¹CASWE, “CASWE-ACFTS Media Release 2015” (June 8, 2015), online (pdf): <caswe-acfts.ca/wp-content/uploads/2013/03/Media-Release.June8_.2015.Student-Committee.pdf>.

¹²Canadian Association of Social Workers, “CASW Strategic Plan 2016-20”, online (pdf): <casw-acts.ca/sites/casw-acts.ca/files/attachements/casw_strategic_plan_2016-2020.pdf>.

¹³ See Angela Sterritt, “'I felt like I was betraying my own': Indigenous social workers open up about challenges”, CBC News (24 April 2019), online: <cbc.ca/news/canada/british-columbia/indigenous-social-worker-speaks-out-1.5107655.>.

5 Years After TRC: Reducing Children in Care

Tansi Nîtôtemtik, 

 

Today we are looking at TRC Calls to Action #1 and #2.  Both of these Calls to Action call on governments to address the staggering number of Indigenous children in the child welfare system. The 2016 census showed that a shocking 52.2% of children in care were Indigenous.^[1] Why is this figure so shocking? Well, only 7.7% of children in Canada are Indigenous.^[2]  

(Image credit: Government of Canada; Indigenous Services Canada, “Reducing the number of Indigenous children in care”, (2 November 2018), online: <https://www.sac-isc.gc.ca/eng/1541187352297/1541187392851>) 

 

Call to Action #1 calls for a commitment from governments to reduce Indigenous children in care through resourcing, monitoring and educating child welfare organizations, and requiring child-welfare investigators and decision makers to consider culturally appropriate environments and the effects of residential schools on children and caregivers. Call to Action #2 calls for annual published data on child welfare services and Indigenous children.^[3]

 

To evaluate Call to Action #1, Team ReconciliAction first needed to know if there has been a reduction of Indigenous children in care since 2015. However, the most recent federal data on the number of Indigenous children in care comes from the 2016 census. Due to the absence of annual published data, we have assigned a failing grade for Call to Action #2.  Finding out the number of Indigenous children in care would have been a simple task if Call to Action #2 had been adequately responded to.  Luckily for our readers, we law students are no strangers to research. 

 

News reports from June 2020 state that the proportion of Indigenous children in care in Saskatchewan hit an 11-year high for the number of children in care, with 86% of these children being Indigenous.^[4]  Following a similar upward trend, Alberta Human Services reported a 4% increase in Indigenous children in care in 2018, raising Alberta's figure to 70%.^[5]  Finally, between 2016 and 2018, BC saw an increase in the number of Indigenous children in care from 61% to 63%.^[6] 

 

The number of Indigenous children in care may be further impacted by recent published judicial interpretations of the Act respecting First Nations, Inuit and Métis children, youth and families since it's coming into force in January 2020. Several courts across the country have interpreted the new priority placement provision in the Act in a way that places or keeps the Indigenous child in foster care, by skipping over or deeming 'not applicable' placements that are legislated as ahead of foster homes in priority.^[7] We will discuss this Act in greater detail next week when we look at Call to Action #4.

 

Overall, Call to Action #1 cannot be assigned a passing grade for reducing the number of Indigenous children in care because the proportion of Indigenous children in care has not been reduced since the final report from the TRC was released in 2015. Perhaps tomorrow this grade can improve when we evaluate whether there has been progress on the individual means of reducing the number of Indigenous children in care as set out in TRC Call to Action #1. Stay tuned!

What do you think about progress on Calls to Action #1 & #2? Comment below. 

 

Until next time, Team ReconciliAction YEG

 

¹ Government of Canada; Indigenous Services Canada, “Reducing the number of Indigenous children in care”, (2 November 2018), online: <https://www.sac-isc.gc.ca/eng/1541187352297/1541187392851>.

² Ibid

³Truth 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 319.

⁴ Anna McMillan, “Number of children in Saskatchewan’s care hits 11-year high, with 86% identified as Indigenous”, online: Global News <https://globalnews.ca/news/7020525/indigenous-children-saskatchewans-care-11-year-high/>.

⁵ Human Services Alberta, Child Intervention Information and Statistics Summary (Alberta: Human Services Alberta, Child Intervention Division, 2018).

⁶ Government of British Columbia, “Children and Youth in Care”, (31 March 2018), online: <https://mcfd.gov.bc.ca/reporting/services/child-protection/permanency-for-children-and-youth/performance-indicators/children-in-care>.

⁷An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019 c 24 [The Act], s 16, When placing an Indigenous child, priority must be considered in order of, (a) with one of the child’s parents, (b) with another adult member of the child’s family,(c) with an adult who belongs to the same Indigenous group, community or people as the child, (d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs, or (e) with any other adult. Alberta (Child, Youth and Family Enhancement Act, Director) v KC, 2020 ABPC 62 [AB Director v KC] at paras 30–31, Interpreted as inapplicable when family and Indigenous governing body have not put forth kinship or other placement options; British Columbia (Child, Family and Community Service) v SH, 2020 BCPC 82 [BCCFS v SH] Placement priority provision interpreted as not applicable when no other placement alternatives or evaluations have been provided to the court.

Team ReconciliAction stands with Black Lives Matter

 

Tansi Nîtôtemtik, 

 

For our final post this week, Team ReconciliAction wants to acknowledge the long-standing oppression and structural and systemic racism against Black people worldwide. The senseless murder of Ahmaud Arbery and the brutal police killings of Breonna Taylor and George Floyd earlier this year brought renewed international attention to racial profiling, systemic racism, and the disproportionate use of lethal force by police against Black people.  The fact is, racism is deeply rooted in Canadian policy and culture, and it is time for our country to face this reality head on.  

 

When this blog discusses systemic racism, it is usually in the context of the historic and contemporary systems that oppress Indigenous people.  Indigenous people have survived many systems that were, by design, genocidal. Despite rampant exposure to disease, disenfranchisement, banning of cultural practices, residential schools, the sixties scoop, chronic underfunding and inaccessible services, intergenerational trauma, and the current over-incarceration and overrepresentation in the justice and child welfare systems, Indigenous culture and community stand resilient as ever. However, Team ReconciliAction acknowledges that right now, it is the time to shine a light on the historical and contemporary injustices faced by Black people in Canada. 

 

In Canada, historical records  of Black slavery date back to 1629, with documented evidence of at least 3000 Black people enslaved.^[1]  In Alberta, Black people have been discriminated against since the earliest Black settlers arrived.  Amber Valley was a settlement of Black pioneers who immigrated to Canada after discriminatory policy in Oklahoma stripped them of land ownership.^[2]  Canada was initially marketed as a place more racially tolerant, but after around 1000 Black pioneers settled in the west, anti-black racism began to rear its vicious head. Capitalizing on legislation that provisioned for race-based immigration laws, Frank Oliver of Edmonton petitioned to have legislation enacted that banned Black immigrants from coming to Canada.^[3]  While this legislation was never enacted, other systemic barriers were put in place that eventually slowed Black immigration to Alberta. 

 

Today, the Black community makes up 3.4% of Canada’s total population, and yet a disproportionate 9% of all people killed by police in Canada are Black.^[4]  Not only are Black people more likely to face police violence, they also earn less on average than non-Black Canadians, are more likely to be unemployed or living in poverty, and are the minority group most subjected to hate crimes and speech.^[5] 

 

We talk about reconciliation in the context of Indigenous-settlor relations, but Canada’s racist and colonial history has caused deep and pervasive harm to the Black community.  Repairing this harm starts with recognizing it. 

 

University of Toronto Library has curated a reading list for those interested in self-education on anti-Black racism in Canada.  

 

You can also stream the film We are the Roots: Black Settlers and their Experiences of Discrimination on the Canadian Prairies for free at BaileyandSoda.com to learn more about the early settlers of Amber Valley in Alberta

 

We stand in solidarity with Black Lives Matter and other equity-seeking groups in their collective fights against police brutality and systemic inequality. We hope you continue to tune in over the coming year to get our take on Canada’s efforts to peel back the layers of colonial systems of oppression that pervade our modern society. 

 

The team will be back next week to introduce the writers that will bring you this year's content.  We look forward to your comments and feedback over the upcoming year.

 

Until next time, Team ReconciliAction YEG

 

 

¹ Leyland Cecco, “Canada urged to open its eyes to systemic racism in wake of police violence”, the Guardian (14 June 2020), online: <http://www.theguardian.com/world/2020/jun/14/canada-systemic-racism-history>.

² “Alberta: Home, Home on the Plains - Settlement : Black Settlers”, online: <http://wayback.archive-it.org/2217/20101208164117/http://www.abheritage.ca/pasttopresent/en/settlement/black_settlers.html> See also; Dr Jenna Bailey, We are the Roots: Black Settlers and their Experiences of Discrimination on the Canadian Prairies (Bailey and Soda Films).

³ Immigration Act, SC 1910, c 27 [Immigration Act], s 38“The Governor in Council may, by proclamation or order whenever he deems it necessary or expedient, — (c) prohibit for a stated period, or permanently, the landing in Canada, or the landing at any specified port of entry in Canada, of immigrants belonging to any race deemed unsuited to the climate or requirements of Canada, or of immigrants of any specified class, occupation or character.”; Barrington Walker, ed, The African Canadian Legal Odyssey (Toronto: University of Toronto Press, 2012) at 30, 45.

⁴ Inayat Singh, “Deadly Force”, CBC News (23 July 2020), online: <https://newsinteractives.cbc.ca/fatalpoliceencounters>.

⁵ Graham Slaughter & Mahima Singh, “Five charts that show what systemic racism looks like in Canada”, CTVNews (4 June 2020), online: <https://www.ctvnews.ca/canada/five-charts-that-show-what-systemic-racism-looks-like-in-canada-1.4970352>.

Year End Reflection: Elise Wouters

"Our Home and Native Land" by Jennifer Adomeit. Image retrieved from <nwac-store.myshopify.com/products/our-home-and-native-land-jennifer-adomeit-ceramic-tile-trivet>

Tansi Nîtôtemtik,

In many ways, writing this post trying to sum up my experience over the last eight months has been my most challenging post of the year. One year ago, when I agreed to co-lead ReconciliAction YEG for the 2019-2020 academic year, I expected to learn a lot and to share that learning, to be challenged and to challenge, to listen and to advocate. However, I do not think I accurately anticipated how personally meaningful my time spent on this project would be. I struggled for several days about how I wanted to “sign off”. I believe my struggle stemmed from a feeling that there was more to do, more to talk about, more advocacy to be engaged in andmore progress to be made on the journey to Reconciliation. I realized that “signing off” felt wrong and artificial because it is the opposite of the spirit of the message I want to leave. If anything, my time on the blog has ignited within me an even stronger desire to be intentional in involving myself in initiatives and projects working to bring about Reconciliation in Canada. This is particularly true as I embark on my legal career in the next few weeks.

In my opening post[1] on this blog, I shared that my perception of my role as advocate was to listen and help to create a space for voices to be heard that otherwise would be suppressed or lost in the complexity of legal processes. Eight months and twenty-three posts later, I am now keenly aware that simply creating a space for Indigenous voices is painfully inadequate if Reconciliation is ever to be accomplished. In particular, the posts I wrote on Indigenous Candidates and Issues in the Federal Election[2]; on child welfare and the tireless advocacy of Dr. Cindy Blackstock and Dr. Hadley Friedland[3]; on Principles in Métis Governance[4], on Questioning the Presumptions of Sovereignty in Canada[5], and most recently providing an update on Canada’s current progress on completing the TRC Calls to Action[6], demonstrated this lesson for me in different ways. The research I carried out for those posts was clear: the fight for Reconciliation cannot only carried out by the federal government and Indigenous communities. All Canadians must insist on the kind of Canada where the inherent Indigenous rights of self-determination and self-governance is a reality, not just an ideal. How do we do that? Vote for political leaders in your ridings who support Indigenous values and initiatives; stay up to date on current events and help others around you  become aware of important issues; support Indigenous businesses, artists, authors, leaders, and events (etc.); follow Indigenous activists and advocates on your preferred social media platforms; and get involved with already existing initiatives implementing Reconciliation efforts in Canada.

The overall message I want to get across is this: everyone in Canada should find a way to get involved in Reconciliation. Yes, even if you are a settler! I am a settler and as such, I urge those of you in our readership who are also settlers: please, do not disqualify yourself! I guarantee there is some area in your life that aligns with an initiative or project working towards various goals of Reconciliation in Canada that could use your skill set or at the very least an extra set of hands. You may even find that your previous passions align with Reconciliation efforts. I came to this blog with a keen passion for developing themes I had previously researched and written on the contribution of systemic factors to perpetuating inequality for Canadians. For that reason, many of my posts this year focused on institutionalized structural violence[7]and continued systems of colonization and their role in perpetuating inequality in particular on Indigenous women and girls[8] and in child and family service delivery in Canada.[9] I also was able to highlight the decolonizing force of Indigenous women and girls[10] and efforts in decolonization in service delivery.[11] The key is to get started. NOW. We must not only learn, we must do; we must not only commit to valuing Reconciliation in Canada, we must take active steps to insist on making Reconciliation a reality. Our blog title swapped out “Reconciliation” for “ReconciliAction” for a reason!

Before I wrap up, I want to thank my co-lead Alanna Wiercinski and our wonderful team of contributors: Kira Davidson, Russell Green, Sheila Raffray, and Kailey Hubele – your hard work and passion has inspired me and has allowed ReconciliAction YEG to carry on the tradition of excellence begun by our predecessors.

On behalf of myself and the rest of the team, I also want to thank our faculty advisors, Dr. Hadley Friedland and Dr. Moin Yahya – your faith in and the support and guidance offered to our Team made for a truly impactful learning experience for all of us.

As much as I wanted to avoid the “sign off”, this is unavoidably my last post for ReconciliAction YEG, and while my involvement in Reconciliation efforts has only just begun, my time on this project is at an end. I wanted to end by thanking you, our readers, for supporting us in our journey. While this is ReconciliAction YEG’s last post for this academic year, the project has been confirmed for another year with a new team of contributors. Stay tuned for their first post on September 14, 2020.

In the meantime, we hope you will stay involved in pursuing the goal of Reconciliation in Canada, by listening and learning, and perhaps by taking steps to get involved in Reconciliation initiatives in your area. I have no doubt we will meet again, so I sign off not with goodbye, but…

 

Until next time,

 

Yours Sincerely,

Elise Wouters

Team ReconciliAction YEG, Team Co-Lead

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[1] ReconciliAction YEG, “Meet the Team: Elise Wouters” (11 September 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/09/meet-the-team-elise-wouters.html>.

[2] ReconciliAction YEG, “In the Media: Indigenous Candidates and Indigenous Issues in the Federal Election” (11 October 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/10/in-the-media-indigenous-candidates-and-issues-in-the-federal-election.html>.

[3] ReconciliAction YEG, “In the Media: Dr. Cindy Blackstock & Dr. Hadley Friedland on Bill C-92” (14 November 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/11/in-the-media-dr-cindy-blackstock-dr-hadley-friedland-on-bill-c-92-.html>.

[4] ReconciliAction YEG, “The Principles of Métis Governance: Asserting the Right to Remain ka tipaymishooyahk (“We who own ourselves”)” (11 February 2020), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2020/02/the-principles-of-métis-governance-asserting-the-right-to-remain-ka-tipaymishooyahk-we-who-own-ourse.html>.

[5] ReconciliAction YEG, “Questioning the Presumptions of Sovereignty in Canada” (06 February 2020), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2020/02/questioning-the-presumptions-of-sovereignty-in-canada.html>.

[6] ReconciliAction YEG, “Reconciliation Report Card: ‘Beyond 94’ Update” (16 March 2020), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2020/03/reconciliation-report-card-beyond-94-update.html>.

[7] ReconciliAction YEG, “Navigating Structural Violence with Indigenous Families in Child Welfare” (15 January 2020), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2020/01/navigating-structural-violence-with-indigenous-families.html>.

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

[9] ReconciliAction YEG, “Intro to Child Welfare: The Origins of Systemic Factors Affecting Indigenous Children and Youth” (04 November 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/11/intro-to-child-welfare-the-origins-of-systemic-factors-affecting-indigenous-children-and-youth.html>.

[10] ReconciliAction YEG, “The De-Colonizing Force of Indigenous Girls and Youth” (20 November 2019), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/11/indigenous-girls-and-youth-as-de-colonizing-force-.html>.

[11] ReconciliAction YEG, “Decolonizing Child Rearing: Highlight on the Opokaa’sin Project” (16 January 2020), online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2020/01/decolonizing-child-rearing-highlight-on-the-opokaasin-project.html>; See also ““Decolonization” and Why it Matters in the Context of Child Welfare” (27 November 2019) <ualbertalaw.typepad.com/faculty/2019/11/decolonization-and-why-it-matters-in-the-context-of-child-welfare.html>.

Reconciliation Report Card: 'Beyond 94' Update

Tansi Nîtôtemtik,

Image retrieved from CBC News <newsinteractives.cbc.ca/longform-single/beyond-94?&cta=20>.

In this, our final week of regular content for the academic year, our current team of ReconciliAction YEG contributors wanted to interact with our predecessors over the last two years and provide a “Report Card” of sorts on topics in Reconciliation previously covered on the blog. We wanted to provide a meaningful check-in on topics that are still relevant, and in doing so, highlight Canada’s current state of Reconciliation. We would like to discuss the areas where improvement and attention are needed, and point towards opportunities for our readers to get involved in the process of Reconciliation.

Today’s post interacts with one written in ReconciliAction YEG’s first year, featuring CBC’s ‘Beyond 94’ interactive website on the progress of the Truth and Reconciliation Commission’s 94 Calls to Action.[1] You can read the post here.[2] That post, written March 23, 2018, reported that the current progress on the 94 Calls to Action was as follows:

• 10 Calls to Action had been completed;
• 0 Calls regarding child welfare, education, and health care had been completed;
• 1 Call had been completed regarding language and culture;
• 2 Calls had been completed regarding justice; and
• 7 Calls had been completed regarding Reconciliation.[3]

As of CBC’s most recent update of the Beyond 94 website, on January 22, 2020, these numbers have not changed; today, only 10 Calls to Action have been completed.

Encouragingly, there are an additional 60 Calls to Action with an “In Progress” status. 21 Calls to Action are classified under “Projects underway” and 39 Calls to Action under “Projects proposed.” However, 24 Calls to Action are listed as “Not started.”

Of the 21 Calls to Action “In Progress – Projects underway,” there are:

• 6 Calls regarding child welfare, education, and health care;
• 4 Calls regarding language and culture;
• 0 Calls regarding justice; and
• 11 Calls regarding Reconciliation.

17 Calls had projects undertaken during or before 2018. A few of those projects undertaken regarding Reconciliation are related to church parties involved with residential schools in the past. These groups are working towards Reconciliation by implementing educational programs for clergy working with Indigenous groups; church participation in culture revitalization projects; and renouncing the Doctrine of Discovery and the principle of terra nullius. Notably, those Calls to Action involving government funding seem to be stalemated, such as progress on Call 78, which since 2018 has not seen government monetary contribution to the previously promised $10 million over seven years to the National Centre for Truth and Reconciliation.

4 Calls had projects undertaken in 2019 or later. Significantly, 2019 saw the passing of An Act respecting Indigenous languages (Bill C-91) as well as an act that would create the Office of the Commissioner of Indigenous Languages (Calls 14 and 15). However, neither of these fully address the elements of Calls 14 and 15.

Of the 39 Calls to Action “In Progress – Projects proposed,” there are:

• 10 Calls regarding child welfare, education, and health care;
• *All Calls regarding language and culture either completed or in projects underway*;
• 11 Calls regarding justice; and
• 18 Calls regarding Reconciliation.

28 Calls had projects proposed in or before 2018. Some of the Projects proposed regarding Reconciliation have “died in the Senate,” such as progress on Call 80 which called for the establishment of a National Day for Truth and Reconciliation. Other projects, such as the one undertaken in response to Call 57, which called for the programs to be created to educate public servants on the history of Aboriginal peoples, have made important progress. The KAIROS Blanket Exercise, now required participation for University of Alberta first year law students, was developed in response to Call 57. One of our contributors helped facilitate the KAIROS Blanket Exercise a few months ago, and you can read about her experience here.[4]

11 Calls had projects proposed in 2019 or later. Some of these projects are highlighted, as follows:

• In response to Calls 66, 73, and 74, the 2019 federal budget committed funding to:
  • the creation of an online residential school cemetery registry as well as to provide opportunities for commemoration (Calls 73 and 74); and
  • provide $15.2 million over three years for a pilot program to support Indigenous youth reconciliation initiatives (Call 66).

• In December of 2019, the Trudeau government promised to introduce legislation within a year to implement UNDRIP (Calls 43 and 44).

• In response to Call 34, which called upon the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD), Manitoba opened Canada’s first sentencing court specifically for offenders with FASD.

• In response to Call 27, which called for lawyers to receive appropriate cultural competency training, the Law Society of British Columbia moved to require Indigenous cultural competency training for all lawyers practising in the province by 2021.

• In response to Call 28, which calls for law students to be required to take a course in Aboriginal people and the law, two universities in Canada – Lakehead University and Windsor University – have mandated an Indigenous law course as required for its law students.

Two years have passed since our original post featuring CBC’s Beyond 94 website and almost five years since the release of the TRC’s 94 Calls to Action in 2015. However, only 10 Calls have been completed and 24 Calls remain unaddressed. While it is hopeful that 15 additional Calls are being responded to through proposed projects or projects already underway but in most cases, a commitment to the completion of the Calls to Action in the long-term is required. The federal government must do more than promise action and funding – Reconciliation must be a prominent value and a targeted goal not only for Canada’s government but also for Canadian citizens if meaningful progress towards the completion of the Calls to Action is to be made. Like that first ReconciliAction YEG contributor to discuss Beyond 94 two years ago, we stand in agreement today in 2020 with what she had to say on the pace of Canada’s progress in completing the Calls to Action:

[It] is unacceptable. The TRC Calls to Action are not a to-do list… they are steps that must be taken imminently to better the plight of Indigenous survivors in Canada.[5]

 With 10 Calls to Action complete in the 5 years since the release of the TRC Final Report, the average pace of completion is 2 per year. At that rate, all 94 Calls to Action will not be completed until 2062. The time for Reconciliation is now.

Yours Truly,

Team ReconciliAction YEG

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[1] Unless otherwise indicated, all information retrieved from CBC News, “Beyond 94: Truth and Reconciliation in Canada” (last updated 22 January 2020), online: CBC News <newsinteractives.cbc.ca/longform-single/beyond-94?&cta=32> [Beyond 94].

[2] ReconciliAction YEG, “In the Media: “Beyond 94”” (23 March 2018), online: University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2018/03/in-the-media-beyond-94.html>.

[3] Ibid.

[4] ReconciliAction YEG, “Reflection Post: The KAIROS Blanket Exercise, View from a Facilitator”, (20 September 2019) online (blog): University of Alberta Faculty of Law Faculty Blog <ualbertalaw.typepad.com/faculty/2019/09/reflection-post-the-kairos-blanket-exercise-view-from-a-facilitator.html>.

[5] Supra note 2.

 

Indigenous Ownership in the TMX and the Potential for Poverty Alleviation in Indigenous Communities

Tansi Nîtôtemtik,

"We still have issues in the communities about poverty and water and housing," said President of the Indian Resource Counsel Stephen Buffalo about the benefits of Indigenous ownership of the Trans Mountain project.

Image retrieved from: <www.cbc.ca/news/business/tmx-trans-mountain-reconciliation-ownership-stake-1.5350454>.

This week, ReconciliAction YEG has been covering topics in the Trans Mountain Pipeline Project. Today’s topic discusses the question of how Indigenous ownership of a stake in the Trans Mountain Pipeline, which transports oil and other products from Edmonton to the Vancouver area, could contribute to the alleviation of poverty in Indigenous communities.

Three main interest groups are looking to own a stake in the pipeline project: “Project Reconciliation based in Calgary, the Iron Coalition led by chiefs in the Edmonton area, and the Western Indigenous Pipeline Group based out of [British Columbia].”[1] The groups are hoping to take advantage of the opportunity for First Nations across the country to collectively purchase a 51 per cent stake in the Trans Mountain Pipeline.[2] At a Calgary summit held by the National Coalition of Chiefs in November of 2019, the main topic was poverty on reserves and how to tackle the problem.[3] One possible answer is to empower Indigenous communities to increase their financial stake in Canadian energy products.[4]

Delbert Wapass, the founder of Project Reconciliation, says Indigenous ownership in the pipeline would help empower communities to be self-sufficient for generations into the future and that in the past, Indigenous groups have been “economically starved out of any large opportunities.”[5] Wapass comments, “We are always a recipient of – rather than controlling our own destiny. We don’t want to be dependant (sic) on government.”[6] Other Indigenous leaders have said an ownership stake could additionally ensure the environment is protected through Indigenous monitoring of the pipeline.[7] Ownership in the pipeline could contribute to the alleviation of poverty by providing an economic return in the form of wealth generation that can “pave the way for true reconciliation through self-determined generational wealth, poverty elimination and future projects” such as sustainable infrastructure projects.[8] Additionally, ownership stake in the pipeline would allow key decisions to be made by Indigenous communities, such as implementing the program of the First Nations Fisheries Council which would connect First Nations communities to employment opportunities across the marine sector.[9]

Before Indigenous ownership in the pipeline becomes a reality, two main hurdles must be overcome. First, the federal government must take steps to engage Indigenous groups in negotiating ownership. While Prime Minister Justin Trudeau has stated in the past that the government would be open to Indigenous ownership of the pipeline and has discussed assembling a “committee of experts to advise about the possibility of selling a financial stake of the project to First Nations,”[10] it is only recently that they have taken steps in the right direction. On February 10, 2020, Finance Minister Bill Morneau announced the beginning of a new set of consultations with Indigenous groups.[11] The consultations will determine if and how Indigenous groups might take part in the ownership of the Trans Mountain Pipeline and its expansion project.[12] With up to 129 communities to be consulted over the next several weeks, there is a need to ensure they have a chance for meaningful economic participation in the pipeline.[13] The second hurdle is that Indigenous groups must be committed to working together towards a common purpose or else risk the federal government selling the project to someone else.[14] One Indigenous group, the Iron Coalition, has concerns about making a bid on the pipeline too soon and warns that the ownership of the pipeline is “too important to get wrong.”[15] An Indigenous ownership stake in the Trans Mountain Pipeline Project has the potential to be “a significant step along the spectrum from managing poverty to managing wealth” and stands to positively redefine the relationship between Canada and Indigenous communities as it relates to major resource development.[16]

Ultimately, Indigenous ownership in the Trans Mountain Pipeline Project could be an important step towards Reconciliation between Canada and Indigenous Peoples. The return on investment would provide a key source of wealth that would allow Indigenous Peoples to gain autonomy by reducing their reliance on financial support from the government and thereby contributing to the assertion of their inherent rights to self-determination and self-governance. Recent developments in the Trans Mountain Pipeline Project indicate that the coming weeks will prove to be crucial as the federal government proceeds with the promised consultations and the Indigenous interest groups work to unite towards the common goal of ownership in the Trans Mountain Pipeline.

Until next time,

Team ReconciliAction YEG

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[1] Kyle Bakx, “Indigenous groups urged to unite or risk losing out on Trans Mountain pipeline ownership” (07 November 2019), online: CBC News <www.cbc.ca/news/business/tmx-trans-mountain-reconciliation-ownership-stake-1.5350454>.

[2] Jill Croteau, “First Nation chiefs work to defeat on-reserve poverty, pitch pipeline investment at Calgary summit” (04 November 2019), online: Global News <globalnews.ca/news/6126288/first-nation-chiefs-poverty-pipeline-calgary/>.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Delbert Wapass, Wallace Fox & Shane Gottfriedson, “Opinion: Native ownership of Trans Mountain pipeline would replace First Nation poverty with prosperity” (last updated 06 May 2019), online: The Province <theprovince.com/opinion/op-ed/opinion-native-ownership-of-trans-mountain-pipeline-would-replace-first-nation-poverty-with-prosperity>.

[8] Ibid.

[9] Ibid.

[10] Supra note 2.

[11] The Canadian Press, “Trans Mountain pipeline Indigenous ownership talks launched by federal government” (10 February 2020), online: Global News <globalnews.ca/news/6531738/trans-mountain-pipeline-indigenous-ownership-consultations/>.

[12] Ibid.

[13] Ibid.

[14] Supra note 1.

[15] Tony Alexis & Paul Poscente, “The Trans Mountain pipeline – and Indigenous ownership – is too important to get wrong” (25 July 2019), online: The Globe and Mail <www.theglobeandmail.com/opinion/article-the-trans-mountain-pipeline-and-indigenous-ownership-is-too/>.

[16] Ibid.

A Brief History of the Trans Mountain Pipeline Expansion Project

 

 Image by Brian Zinchuk for Pipeline News.

Tansi Nîtôtemtik,

In May, 2018, the Government of Canada purchased the Trans Mountain Pipeline Expansion Project (TMX) and its related assets from Kinder Morgan for $4.5 billion.[1] While the Government of Canada intends to put the pipeline back into the private sector, the TMX is presently under government control. With an expected “$46 billion in government revenues…in the first 20 years of operation,” the TMX is “Canada’s rise to the challenge of delivering oil extracted with stringent regulatory oversight and environmental protection to meet the world’s energy needs.”[2]

A large part of the construction of the TMX is the imperative consultation with Indigenous groups. Minister Morneau, Canada’s Finance Minister, said that these consultations are being guided by four main principles:

1. The potentially impacted Indigenous communities would have an opportunity for meaningful economic participation in the project;
2. Indigenous groups’ participation could help the economic development of their communities, in keeping with the spirit of reconciliation;
3. The government invested in the TMX to benefit all Canadians; and
4. The project would be built and operated on a commercial basis.[3]

The Duty to Consult

The duty to consult is a constitutional duty[4] imposed on the Crown when “the Crown proposes action that may adversely affect Indigenous rights or title.”[5] Consultation is a legal obligation, even where Indigenous rights are asserted but not yet proven.[6] Failure to engage in meaningful consultation with Indigenous groups could lead to the quashing of the project, as was demonstrated in the Federal Court of Appeal’s 2018 case of Tsleil-Waututh Nation v Canada (Attorney General) (“TWN 2018”).[7] One of the two reasons for quashing the TMX was the Crown’s failure to appropriately discharge its duty to  consult with affected Indigenous groups.[8] In particular, “Canada’s efforts fell well short of the mark set by the Supreme Court of Canada” in Phase III of the consultation framework.[9] Canada “failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”[10]

Two weeks ago, the Federal Court of Appeal, in Coldwater First Nation v Canada (Attorney General), approved the TMX expansion.[11] This is a major development in the TMX story and we will be addressing this decision in a spotlight post this Friday on the blog.

History of the Duty to Consult

Particulars of the duty to consult are set out in the 2004 Supreme Court of Canada (SCC) decision of Haida Nation v British Columbia (Minister of Forests).[12] In that case, it was recognized that the government’s “duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown.”[13] The case also outlined that “the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”[14]

In Delgamuukw, [former] Chief Justice Lamer explained the nature and scope of the duty to consult:

The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to title…In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.[15]

In cases where deep consultation is required, the SCC in Haida Nation stated:

While precise requirements will vary with the circumstances, the consultation required…may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact the had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.[16]

Furthermore, consultation is to be done “with good faith to provide meaningful consultation appropriate to the circumstances,”[17] and must be responsive to Indigenous concerns.[18] These components of consultation play a large role in the current TMX proposal as there are “120 Indigenous in communities in Alberta and BC along the Trans Mountain pipeline’s corridor,” each with unique interests and rights affected.[19]

Indigenous Concerns

Many Indigenous groups have strongly opposed the TMX expansion. While the “[former] Natural Resources Minister Amarjeet Sohi… met with 65 Indigenous groups across 46 meetings,” many Indigenous groups remain unsatisfied.[20] Chief Leah George-Wilson for the UBCIC stated that:

Tsleil-Waututh again engaged in consultation in good faith, but it was clear that the federal government had already made up their mind as the owners of the project.[21]

There are many concerns that Indigenous groups have with the TMX expansion. For instance, the Coldwater First Nation “sits on an aquifer of potable water that they can drink without treatment.” A groundwater specialist determined that should the expansion proceed, it would cut through this aquifer, leading to concerns that a spill is imminent.[22]  For Chief Spahan of the Coldwater First Nation, a spill “is not a matter of if…but when.”[23]

Further still, Merle Alexander, “who represents the Shxw’owhamel First Nation near Hope, British Columbia” was once in favour of the pipeline but is now opposed to its expansion.[24] The biggest concern for this Indigenous community is that “an oil spill would destroy its sacred burial and archeological sites as well as the community’s sole source of water.”[25]

Conclusion

The TMX Project has been a continuous development over the last number of years and is a topic that is constantly evolving. Indigenous communities are being affected by the proposed project and new developments stemming from the 2020 Federal Court of Appeal decision will be numerous.

Until Next Time,

Team ReconciliAction YEG

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[1] Robyn Finley, “Radically Refining Roles: Proposed Indigenous Ownership of the Trans Mountain Pipeline” (18 November 2019) Burnet, Duckworth & Palmer LLP Energy Newsletter, online: <www.bdplaw.com/publications/> [Finley].

[2] Ibid.

[3] Ibid.

[4] See R v Kapp, 2008 SCC 41 at para 6.

[5]  Finley, supra note 1

[6] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35 [Haida Nation].

[7] “Trans Mountain Expansion Project” Major Projects Management Office of the Government of Canada, online: <www.mpmo.gc.ca/measures/256>; Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 [TWN 2018].

[8] TWN 2018, ibid at para 6.

[9] Ibid.

[10] Ibid.

[11] Coldwater First Nation v Canada (Attorney General), 2020 FCA 34.

[12] Supra note 5.

[13] Ibid at para 16.

[14] Supra note 6.

[15] Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 168.

[16] Haida Nation, supra note 6 at para 44.

[17] Ibid at para 41.

[18] Tsleil-Waututh Nation, supra note 7 at para 6.

[19] Ibid.

[20] “With Trans Mountain Expansion Greenlit Again, Indigenous Leaders Vow to Fight On” (18 June 2019) Global News, online: <www.globalnews.ca/>.

[21] Ibid.

[22] Nick Purdon & Leonardo Palleja, “Trans Mountain Pipeline: Why Some First Nations Want to Stop It – and Others Want to Own It” (5 October 2019) CBC News, online: <www.cbc.ca/news/>.

[23] Ibid.

[24] Camille Bains, “6 First Nations Launch New Court Challenge to Trans Mountain Pipeline” (9 July 2019) CBC, online: <www.cbc.ca/news/>.

[25] Ibid.

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.

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>.

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.

Growing up in the Child Welfare System: Voices of Indigenous Youth

Tansi Nîtôtemtik,

Youth Advocate Dylan Cohen at the Pledge to Care rally in Victoria, British Columbia on October 24, 2017. Photo by Sarah Rice for The Discourse. Image retrieved from <thediscourse.ca/child-welfare/how-reporters-should-approach-stories-about-vulnerable-
youth>.

Discussions about Child Welfare in Canada frequently occur without the voices and perspectives of those most impacted by it, the individuals who grew up in the system. More recently, former youth in care have been provided the opportunity to share their experiences. Today we will explore two CBC interviews with former youth in care. On January 25, 2018, The Current hosted a special edition titled “In Care and in Crisis: Canada’s Indigenous Child Welfare Emergency”.[1] The interview is with three Indigenous youth who grew up in the child welfare system: Dylan Cohen, Rayna Foster and Jaye Simpson. On August 30, 2019, The Sunday Edition hosted a panel of three former youth in care, one of whom is Indigenous, Ashley Bach.[2]

The Need for Cultural Connection
All four of the former youth in care spoke about the disconnection they experienced from their Indigenous culture. Ashley is a member of the Mishkeegogamang Ojibway Nation in Ontario. Ashley grew up in care in British Columbia and did not have any connection to her home community.[3] When she did participate in Indigenous cultural practices and ceremonies, they were not of her culture, but rather the traditions of other Indigenous communities.[4] Ashley’s experience was not unique and was shared by Jaye. Jaye expressed that she experienced spiritual abuse and was actively discouraged from engaging in cultural practices.[5] One of her placements was with a Christian foster family who discouraged her from attending “Indian” events and sent her to Bible camps.[6] Jaye also reflected upon the fact that despite efforts of the government to shift towards Indigenous agencies providing care for youth, being an “Indigenous” agency alone is insufficient given the diversity of Indigenous Peoples and their culture.[7]

Dylan spoke about the challenge of most foster families being non-Indigenous and not having the skills to support Indigenous children and youth.[8] Like Ashley and Jaye, Dylan was also removed from his community, which made it even more difficult to remain connected to his culture.[9] The removal from community can have a profound effect on children and youth. When asked about how the system could be improved for children and youth, Ashley specifically mentioned the need for the system to find a way to have youth in care visit their home community and to have the opportunity to develop relationships with their family, community, culture and the land of their home community.[10]

Jaye reflected upon how the lack of cultural connection is particularly disturbing given that the removal of culture was so predominant in the Residential School system.[11] The impact of disconnection from culture is most apparent when these youth speak to the role cultural connection has played in helping them heal from their time in care. Rayna expressed that the way she heals from past trauma is from her culture and that she was always meant to be with her culture.[12] It is evident that when youth are entering into the child welfare system they are being separated from so much more than just their biological families. A focus on cultural connectedness is paramount to the next generation of Indigenous children and youth having a sense of belonging.

Approaching the Cliff: Aging out of the Child Welfare System
Another common theme was the abrupt nature in which youth “age out” out of the child welfare system. The age at which youth continue to receive support from child welfare varies across provinces. Ashley expressed that it seems particularly unfair that youth who have experienced trauma are expected to become instant adults, while their peers who remain in parental care often have support well into their mid to late twenties.[13] Dylan stated aging out felt like falling off of a cliff and that he lost his emotional support system in addition to financial supports.[14] As young adults, they did not have someone to call to ask for support for basic problem-solving around issues such as disputes with their landlord. Dylan identified his social worker and a couple of professors as being the only adults who told him they were proud of him after graduating from university.[15] Young people thrive when they have guidance and support from older adults. This support is especially required by young people who have experienced trauma.

The issue of support when aging out of care is timely given the Government of Alberta has just announced plans to reduce the age to which youth in care can access financial and emotional support from 24 years to 22 years.[16] This reduction in support is anticipated to impact 500 young adults.[17] It appears the voices of youth in care continue to fall on deaf ears.

To hear the voices of Ashley, Dylan, Jaye and Rayna, click here[18] and here[19].

 

Until next time,

Team ReconciliAction YEG

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[1] Anna Maria Tremonti, “In Care and In Crisis: Canada’s Indigenous Child Welfare Emergency” (25 January 2018) at 00h:22:35s, online: (podcast) The Current <www.cbc.ca/radio/thecurrent/a-special-edition-of-the-current-in-care-and-in-crisis-canada-s-indigenous-child-welfare-emergency-1.4503238> [perma.cc/AF98-HS9G].

[2]Connie Walker, “How former youth in care are working to fix Canada’s child welfare system” (30 August 2019), online (podcast) The Sunday Edition <www.cbc.ca/radio/thesundayedition/the-sunday-edition-for-september-1-2019-1.5262676/how-former-youth-in-care-are-working-to-fix-canada-s-child-welfare-system-1.5262680> [perma.cc/56LR-8WFQ].

[3] Supra note 2.

[4] Ibid.

[5] Supra note 1.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Supra note 2.

[11] Supra note 1.

[12] Ibid.

[13] Supra note 2.

[14] Supra note 1.

[15] Ibid.

[16] Chris Chacon, “Financial assistance for young being cut short” (2 November 2019), online: <globalnews.ca/news/6119431/alberta-financial-assistance-cut-short/> [perma.cc/W4NL-99QL].

[17] Supra note 16.

[18] Supra note 1.

[19] Supra note 2.

In the Media: Dr. Cindy Blackstock & Dr. Hadley Friedland on Bill C-92

Tansi Nîtôtemtik,

Dr. Cindy Blackstock (left) and Dr. Hadley Friedland (right) at the Speaker's Panel hosted at the University of Alberta on November 7, 2019. Photo by the First Nations Children's action Research and Education Service.

 

Last week, the University of Alberta hosted a panel discussion with Dr. Cindy Blackstock, Executive Director of the First Nations Child and Family Caring Society of Canada, and Faculty of Law professor, Dr. Hadley Friedland. The topic of the panel was the federal government’s “Bill C-92: The Good, the Bad, and the Unknown.” Today’s post provides a brief overview of the panel.

The Good
Dr. Hadley Friedland began with an overview of Bill C-92[1], which comes into force January 1, 2020, calling it a much-needed change and response to decades of Indigenous advocacy and activism. Bill C-92 is the first federal legislation recognizing the inherent right of self-government set out in section 35 of the Constitution Act, 1982[2] in relation to child and family services.

The Act serves three main purposes:

• Recognition of inherent Indigenous jurisdiction in relation to child and family services (CFS). Indigenous groups will be able to legislate and enforce their own laws under the Act. The laws will prevail over federal and provincial laws to the same effect (subject to a few exceptions and to the application of the Charter and the Canadian Human Rights Act);
• Establishment of national principles in relation to the provision of CFS, including recognition of the principles of best interests of the child, substantive equality, and cultural continuity (Importantly, the Act defines specific terms like ‘Best Interests of the Indigenous Child’); and
• Contribution to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.[3]

Friedland highlighted a number of other provisions in the Act which promise to be positive sources of change to CFS delivery, including:

• provisions requiring prioritization of preventive and prenatal care over other services, based on the principle that preventing apprehension at birth is likely in the child’s best interests;
• provisions relating to placement and apprehension set out an order of priority in making placement decisions emphasizing the importance of keeping children as close to their parents and close relatives; and finally
• provisions protecting a child’s attachment and emotional ties to their family and community.

The Bad and the Unknowns
Both Friedland and Blackstock expressed concern about the use of vague language leading to uncertainty for Indigenous groups as they move to exercise their jurisdiction under the Act. Blackstock queried “What [is meant] by ‘Indigenous Governing Body’?... [the legislators] seem to have invented a whole pile of new words.” Friedland pointed out the absence of a number of tools which typically assist with legislative interpretation, including regulations, policy and practice guides, court interpretations and transition plans. Without these tools it is unlikely there will be further clarity before the Act comes into force in January.

Blackstock expressed the federal government could have gone further in the Act to promote self-determination and self-governance in Indigenous groups by drafting clearer legislation with more consultation from the Indigenous groups it affects. She identified the level of confusion created by the inherent uncertainty and vagueness of terms in the Act was simply unnecessary and could have been avoided.

Both experts also highlighted the lack of clarity and commitment regarding funding in implementing the provisions of Bill C-92. Blackstock stated Canada refused to include language in the Act that would obligate funding per the Canadian Human Rights Tribunal’s principles. For now, funding is limited to provincially delegated agencies. For Blackstock, the funding discretion within Bill C-92 is reflective of continued inequitable funding for Indigenous children and family, stating Canada needs to “stop normalizing racial discrimination as fiscal policy.”

Strategies for Interacting with Bill C-92
Friedland recommended the need for education around the existence of the Act and the rights provided under its provisions as well as for advocacy around interpretation of its provisions. In exercising jurisdiction under the Act, Friedland recommended as a starting point for Indigenous groups to think about what best interests of the child might mean for their communities and how they might want to define it. She also encouraged identifying priorities to clarify a starting point for action and to working together with other Indigenous groups to promote both resource and idea sharing. Blackstock’s key recommendation was to be wary of the uncertainty regarding funding and to negotiate your funding agreement with the government before taking action.

When asked how the Alberta provincial government should move forward, Blackstock advocated for the adoption of Jordan’s Principle and stated Alberta needs to become a better ally in addressing the “willful and reckless discrimination, not only with the federal government but also within its own borders”. She also called for more partnership with First Nations, Métis and Inuit leaders as they exercise their jurisdiction under Bill C-92.

Click the link to watch the full version of “Bill C-92: The Good, the Bad, & the Unknowns”[4]

 

Yours Truly,

Team ReconciliAction YEG

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[1] An Act respecting First Nations, Inuit and Métis children, youth and families, 1st Sess, 42nd Parl, 2019, (assented to 21 June 2019), SC 2019, c 24, online: CanLII <www.canlii.org/en/ca/laws/astat/sc-2019-c-24/latest/sc-2019-c-24.html?autocompleteStr=bill%20c-92&autocompletePos=2>.

[2] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[3] United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, UN Doc A/RES/61/295 (2007), online (pdf) <www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>.

[4] UAlberta Law, “Bill C-92: The Good, the Bad, & the Unknowns” (7 November 2019), online (video): YouTube <www.youtube.com/watch?v=I7tMq0ta0D0&feature=youtu.be> [perma.cc/VL72-8232].

Misconceptions of 'Bad Parenting' and the Impacts on Child Apprehension

Tansi Nîtôtemtik,

Over the past few posts, we have been discussing the continued apprehension of Indigenous children in Canada into the child welfare system. At this point, if you’re like us, you may be asking yourself “why is this still happening?”. In today’s post, we will be discussing some of the misconceptions that lead to child apprehension.

The colonial-settler impact on Indigenous communities as well as the colonial-settler perspective on how children should be raised play a significant role in the continued apprehension of Indigenous children. How? Well, consider the colonial-settler impacts on Indigenous communities that we have discussed thus far on this blog. The colonial way of thinking and acting is clearly incongruent with Indigenous practices. This comes up again when we look at child welfare and what is considered to be “effective parenting”. Living conditions regularly play a significant role in child apprehension cases.

The “primary reason for apprehension [of children] in First Nations communities is neglect resulting from structural issues such as poverty, poor housing and parental or guardian substance misuse, many factors which are direct results of colonialism and residential schools.”[1]

The colonial impact on Indigenous communities is not regularly considered before children are taken from their homes. As a result, parents living in poverty have their children taken from them even if they are providing a safe, loving, and caring home.[2] In fact, social workers regularly enter into Indigenous communities without an understanding of Indigenous cultures and can therefore interpret “the lack of Euro-Canadian food and appliances in the home as a sign of neglect.”[3] The issue here is not the safety of the child or the ineffectiveness of the parent, rather, the concern is that the child welfare system is not understanding of the differences in raising children in Indigenous communities. Further, there is a lack of understanding of the impact that poverty has on the life of a family. There is a desperate need for funding to Indigenous communities for resources to assist families and children.[4] Additional funding for Indigenous communities would allow communities to raise children where they belong: amongst their family, community, and culture.

Coming up, we will be discussing Indigenous-led community programs. Such programs help to address the issues outlined above. When Indigenous Peoples can address issues within their communities, they are able to establish culturally appropriate and effective solutions. Additional funding can assist with this to ensure that effective programs are funded. 

 

Until Next Time,

Team ReconciliAction YEG

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[1] National Collaborating Centre for Aboriginal Health, “First Nations Child Poverty: A Literature Review and Analysis” (2017) at 9, online (pdf): <www.nccih.ca/docs/health/FS-ChildWelfareCanada-EN.pdf> [perma.cc/BC9F-LTE7] [NCCAH].

[2] Melisa Brittain & Cindy Blackstock, “First Nations Child Poverty: A Literature Review and Analysis” (2015) at 67, online (pdf): <fncaringsociety.com/sites/default/files/First%20Nations%20Child%20Poverty%20-%20A%20Literature%20Review%20and%20Analysis%202015-3.pdf> [perma.cc/4FSH-TZGR].

[3] Ibid.

[4] NCCAH, supra note 1 at 9; Government of Canada, “Improving child and family services in Indigenous communities: Survey summary report” (5 July 2018) online: <www.sac-isc.gc.ca/eng/1530823640599/1535381807721> [perma.cc/Z2NF-8KVU].