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5 Years After TRC: Is Canada Making the Grade?

Tansi, 

December 2020 marked 5 years since the TRC final report was released with 94 Calls to Action for truth and reconciliation with Indigenous people.  To commemorate this juncture, Team ReconciliAction set out to evaluate progress on each of the Calls to Action in the 5 years since their release. 

It has been quite a year for our team.  In addition to our ongoing report card, we attended the Indigenous Bar Association annual conference, the ILSA speaker series, the Kawaskimhon Moot, the Barton trial, Indigenous language engagement sessions, various faculty talks, we won a Clawbie and we attended protests, marches and vigils.  And we shared all of it with you, our dear audience.  We appreciate all of the engagement we've had this year on the blog and on our social media accounts, and we want to thank everyone who joined the conversation on reconciliation this year.  

Today, we release our final report card, and the culmination of our work over the 2020/21 academic year.  To those who have followed the progress, you have probably figured out that the report card on 5 year progress is bleak.  The few bright spots in reconciliation progress have come at the organizational level, where institutions could quickly work to address the Calls specific to them.  There has been little to no progress on more systemic change that requires governmental action, and in many cases we have actually seen a backslide.  For example, Prime Minister Justin Trudeau has ceased making his emphatic statements that Canada's relationship with Indigenous people is the most important relationship, and here in Alberta we are looking into curriculum changes that exclude education on the legacy of residential schools.  

The takeaway from our report card is that Canada has much work to do, and likely needs to make significant increases to funding and efforts to correct some of these systemic issues in housing, healthcare, the justice system, child welfare and anti-racism.  So what comes next?  Will Canada stop fighting against Indigenous children?  Will Justice Minister David Lametti acknowledge the importance of Indigenous language speakers in this country and allow the bilingual requirement for the SCC to include languages other than colonial ones?  Will communities get clean drinking water?  Will provincial governments denounce racism in education and healthcare?  I mean, we hope so and each of us plans to continue the discussion beyond this blog.

We aren't saying goodbye yet, though.  Stay tuned next week as we get some final thoughts off our chest, and the week after for our individual reflections on the year.  

And now, for those of you who have not already scrolled ahead - The final grade:

Until Next Time,

ReconciliAction YEG

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Re: MMIWG2S Movement is taking back Canada

Tansi Nîtôtemtik,

On March 13, 2021 people from across the country united in a nationwide“Take Back Canada”  rally to honour and commemorate the lives of those women who have been murdered or are missing. Families and friends of Missing and Murdered Indigenous Women, Girls and Two-Spirit Individuals  (MMIWG2S) and those wanting to bring awareness participated in various ways such as online forums, socially distanced marches and rallies, or from their homes by hanging a red dress from their windows or on their lawns in solidarity.

Photo Credit: Anita Cardinal-Stewart

The need to bring awareness for MMIWG and the “No More Stolen Sisters” campaign has gained momentum, especially in the last year with the noticeable increase in posts on social media circulating information about women going missing across the province. However, this increased awareness lacks media coverage or timely action from law enforcement in taking reports seriously or investigating those reports. 

Closer to home, the murder of Billy Johnson last December has brought friends, family and community together in the heartbreaking search mission for recovery of her body every weekend for the last month.^[1] Billy Johnson’s older sister Arianne Snakeskin said “we just want to bring her home and we want to bring awareness to the MMIW so that more families don't have to continue to go through this, it’s hard” in a Global News interview. In that same interview, she spoke about how the Edmonton Police Services’ (EPS) response was concerningly slow when her family reported Billy missing and for weeks would not release any information until the person responsible was charged. Further, when the family asked for help to search with a helicopter the EPS said it was too expensive.^[2]

If we want to improve the safety of indigenous women and girls, there must be a concentrated effort to address long-standing inequities on a systemic level in the institutions that hinder those women and their families from getting the kinds of supports they need.

Attendees and participants of the “Take Back Canada” rally call on the federal and provincial governments to take action on the 231 calls for justice made during the national MMIWG inquiry. Standing together in solidarity is a way to bring national attention to these calls for justice and these campaigns, even if it is hanging a red dress in your window or going to a rally, the cause needs all our support to do so.  

The pandemic creates additional challenges and increased situations of violence, which have had a profound effect on the health of women over this past year. It is estimated that one in five indigenous women reported being a victim of violence during the early pandemic months. According to a report ^[3] by the Native Women’s Association of Canada (NWAC), Indigenous women are 3.5 times more likely to experience violence compared to non-Indigenous women. The NWAC Report also found an increase in the number of violent incidents, usually by an intimate partner, and that one in five women reported being a victim of physical or psychological violence during the first three months of the pandemic.^[4]

One of our ReconciliAction team members attended the rally in Edmonton this past weekend to stand as a witness and was very honoured to be apart of the emotional and impactful event. The words of the survivors and loved ones who held signs of those they are remembering must be witnessed, and we at ReconciliAction stand in solidarity with the MMIWG2S and No More Stolen Sisters Movements.

Thank you for reading. 

Until next time,

Team ReconciliAction

 

[1] https://globalnews.ca/news/7638333/edmonton-missing-woman-billie-johnson-search/amp/

[2] Ibid

[3] https://www.nwac.ca/wp-content/uploads/2015/05/Fact_Sheet_Violence_Against_Aboriginal_Women.pdf

[4] Violence against Indigenous women up during early days of pandemic (aptnnews.ca)

Re: ILSA Speaker Series Day 2: COVID-19 and Indigenous Health

Tansi Nîtôtemtik,

Day two of the speaker series examined how the pandemic has affected Indigenous health and their communities. The presenters were Reagan Bartel, Bonnie Healy and Dr. Daniele Behn Smith.

Reagan Bartel earned her Master of Public Health and Bachelor of Science in Nursing from the University of Alberta and has 16 years of critical care nursing experience delivering front-line care in an Edmonton ICU before moving into population health as the Director of Health for the Métis Nation of Alberta (MNA). 

Her focus in yesterday’s talk was Métis stories, experiences, and perceptions gifted to the MNA and how they must be incorporated into health advocacy, policy, programs, and services to ensure that equal care is provided for members. Bartell highlighted that there is a need for health information and data to be gathered and provided to prevent and alleviate jurisdictional challenges posed by the pandemic in providing equitable care. Advocacy for community members during the pandemic and the impact of COVID on the Metis community needs an equity approach to reduce those inequities related to access, self-governance and self-determination. 

The Metis nation was not immune from colonization traumas and exclusion from policy and process presents an opportunity for Metis people to be retraumatized rather than helped. There are nearly 115,000 self-identified Metis Albertans, a large number of people that are at higher risk of health problems and yet are excluded from the decision-making process with regards to vaccine rollout,  a horrible oversight of both the federal and provincial government. Previously no vaccines were allocated to Metis Albertans, but thankfully that has since changed. Metis Albertans will now be included in phase two of the vaccination plan due in large part to the efforts of the MNA  to push for adequate and equitable health measures for its members.

Aapooyaki Bonnie Healy is a Registered Nurse from the Kainai Nation. Bonnie’s professional background is multi-faceted as she has worked in numerous health capacities at the local, national, and international levels. She is currently the Blackfoot Confederacy Health Director and her work with leadership and First Nations communities have provided her with the ability to liaise and facilitate relationships between Western systems and First Nations.

Bonnie Healy spoke about the unique challenges facing communities during the pandemic including food security, access to services and housing, isolation housing problems and water access and quality. Many indigenous peoples on reserve only have cistern tanks and the delivery of water significantly declined during the pandemic which made it incredibly difficult for community members to adhere to public health guidelines. Transportation was also a big problem because it posed a barrier to community members being able to go get food and supplies, and was also a hindrance to economic development in the communities themselves. These obstacles are all particularly concerning, and in addition to those challenges First Nations people also have a much higher rate of risk of death or serious health problems. This is a fact which the government has acknowledged. Getting vaccines to First Nations as soon as possible with these realities in mind must be a priority. If the pandemic is widespread in First Nations communities, it has the potential to overwhelm the health care system. This is one of the reasons First Nations need to be kept on the priority list for the vaccine rollout plan.

The last panel speaker was the esteemed Dr. Danièle Behn Smith who has been working to support Indigenous health in the Office of the Provincial Health Officer since 2015, where she works alongside Dr. Bonnie Henry, BC’s Provincial Health Officer. She provides independent advice and support to the Ministry of Health on Indigenous health issues. In support of the ministry’s strategic agenda, Behn Smith works in meaningful partnership with Indigenous collectives, communities and organizations to advance wellness and disrupt colonial practices and policies. Behn Smith is Eh Cho Dene (Big Animal People) of the Fort Nelson First Nation in B.C. with French Canadian/Métis roots in the Red River Valley. 

She commented straight away how First Nations didn't come into the pandemic on equal footing because of the greater risk of health issues and potential of severe COVID  outbreaks on the communities because of their higher health risks. It was particularly concerning because the deadly virus posed a  threat to First Nations cultural continuity, as it threatened vulnerable First Nations elders who are the holders of traditional knowledge and who hold the essence of their nations, language, teachings, and invaluable ways of life practiced since time immemorial. For those reasons, COVID  is a very grave concern to First Nations communities. It threatens the knowledge keepers who must be protected at all cost.

It was important to hear these different perspectives so that society can be made aware of what challenges are being faced by Indigenous communities during this pandemic. This talk also demonstrated why it is so important to understand the gravity of protecting the most vulnerable as they hold an incredible amount of knowledge that if lost, is lost forever.

Today’s talk will introduce Professor Darcy Lindberg an assistant professor in the faculty of law at the University of Alberta, his talk is titled: “I am life”: Indigenous Water Sovereignty and the Alberta Coal Policy. Sounds like one you won’t want to miss!

You can join the talk here: (https://www.ualberta.ca/law/about/2021-ilsa-speaker-series.html) or here: Meeting Link: ILSASpeakerSeries2021  and please continue along with our reporting of the event all this week. 

Until Next Time

Team ReconciliAction YEG

Truth and Reconciliation in Canadian K-12 Classrooms - How we doing Canada?

RE: Commitments to Maintain Education on Cultural Awareness and Issues Affecting Indigenous Peoples

63. We call upon the Council of Ministers of Education, Canada to maintain an annual commitment to Aboriginal education issues, including:
64. Developing and implementing Kindergarten to Grade Twelve curriculum and learning resources on Aboriginal peoples in Canadian history, and the history and legacy of residential schools.
65. Sharing information and best practices on teaching curriculum related to residential schools and Aboriginal history.

iii. Building student capacity for intercultural understanding, empathy, and mutual respect.

1. Identifying teacher-training needs relating to the above.

The Government of Canada is not the lead on this Call to Action, so it has been left up to the Council of Ministers of Education, Canadian Association of School Boards and the Provinces to make progress and create initiatives that will move this Call to Action forward.

In Alberta, and under the current UCP government, there has been a shameful regression in progress with Call to Action #63, particularly with the leak in late 2020 of proposed curriculum documents for Alberta students.  Among other shocking setbacks, these documents showed removal of all references to residential schools and “equity”, deeming that stories surrounding residential schools would be too sad for younger students. This proposed change is contradictory when you realize these same children who would be learning about the enslavement of women and the assassination of Julius Caesar in ancient Rome, but not residential schools. 

An online petition has been started, which argues that the proposed curriculum changes will undo the previous government’s attempts to further reconciliation between Indigenous peoples and Canada through inclusion in the curriculum. You can find the petition here: Petition · Prevent Alberta from eliminating residential school education from their K-4 curriculum · Change.org

Alberta Education Minister Adriana LaGrange later stated that these changes were simply recommendations and that residential schools will continue to be taught in schools starting at a later grade.^[1] This change would be a  huge mistake because it would hinder the truth from being told, a truth that will allow younger generations to learn from the past. 

News of the new curriculum received swift backlash on social media and the broader Indigenous community across the province and the rest of Canada condemning these changes.  (You can read more of the draft curriculum here:New LearnAlberta)

 The good news is that the proposed curriculum change is just a recommendation.  LaGrange also has stated that working groups of subject-area experts including teachers will review the curriculum, with the elementary school curriculum being released to the public early this year. Our entire province is watching this development closely and many are prepared to fight the UCP moving forward with such backward policies. 

Team ReconciliAction YEG will provide an update as soon as one is available. Learning about residential schools and developing cultural awareness of the true history of Canada is non-negotiable and is essential in combating the systemic racism and discrimination that is so prevalent in Canadian society. If reconciliation is the goal, education on the true history of Canada is a major component in achieving that goal.

The rest of the Canadian provinces are a work in progress. Each province has been asked to maintain a commitment to developing K-12 curriculum education opportunities for all students to further an understanding of Aboriginal peoples' Canadian history and identify appropriate teacher-training needs to address these issues.^[2]

Since the release of the TRC 94 Calls to Action, the CMEC (Council of Ministers of Education, Canada) has increased its commitment to Indigenous awareness with its three-year strategic Education Plan (2019-2022). This plan focuses on four priority areas designed to provide a more coordinated, strategic approach for provincial and territorial ministers responsible for education to work together to improve Indigenous education outcomes for all learners.^[3] The plan is available here. CMEC has also made strides in furthering its commitment by hosting various summits and symposiums since 2009 aimed at providing a forum for Indigenous educators and gathering non-Indigenous educators and researchers from across the country to improve indigenous education outcomes for all learners. This progress is very encouraging, but as seen in Alberta, there is a very long way to go. The pressure on the provinces cannot be let up for one moment, considering how easy it is to take significant steps backwards. Moving forward in Truth and Reconciliation must remain our focus as a nation.

Until Next Time

Team ReconciliAction YEG

[1] Allison Bench, “UCP under fire for K-4 curriculum plans that suggest leaving out residential schools” Global News (October 21, 2020) online: <https://globalnews.ca/news/7410812/alberta-curriculum-education-residential-schools/>.

[2] Acadian University, “Call to Action #63” online: <http://courseware.acadiau.ca/trctalk/call-to-action-63/>.

[3] CMEC, “Programs and Initiatives: Indigenous Education” online: <https://www.cmec.ca/53/Programs-and-Initiatives/Aboriginal-Education/Overview/index.html>.

TRC Call to Action #60: Aboriginal Beliefs and Spirituality and the Whiteman’s Gospel

We call upon leaders of the church parties to the Settlement Agreement and all other faiths, in collaboration with Indigenous spiritual leaders, Survivors, schools of theology, seminaries, and other religious training centres, to develop and teach curriculum for all student clergy, and all clergy and staff who work in Aboriginal communities, on the need to respect Indigenous spirituality in its own right, the history and legacy of residential schools and the roles of the church parties in that system, the history and legacy of religious conflict in Aboriginal families and communities, and the responsibility that churches have to mitigate such conflicts and prevent spiritual violence.

In plain simple terms Call to Action #60 is a call to train individuals in religious cultural safety, so that people of different faiths may understand each other better.^[1] This Call to Action aims to ensure churches and those Christian groups that were involved in the residential school system make a conscious and organized effort to educate their organizations on the harms of what those schools did and take an active role in respecting Aboriginal communities and their members' individual rights to practice spirituality according to the teachings of their ancestors.

Canada is a religiously pluralistic country because of its diverse population. This requires Canadians to act with tolerance and respect, including learning about each other’s faiths and beliefs, and accepting that differences can coexist. These actions can minimize or eliminate the divisiveness, hostility and prejudice seen throughout Canadian history towards Indigenous beliefs and practices associated with their spirituality.^[2]

There is a great responsibility of the church parties to mitigate the harms they caused to Indigenous peoples, and addressing these harms requires more than apologies. Our December 2, 2020 post on the Calls to Action #48 and 49 outlining the church parties apologies can be found here: https://ualbertalaw.typepad.com/faculty/2020/12/re-trc-call-to-action-48-49-settlement-agreement-parties-and-undrip.html

It is worth noting that although Pope Benedict expressed his sorrow for those who suffered at the Residential Schools, the Catholic Church has yet to issue a formal apology. This is shameful when considering that the Catholic Church ran 70% of the forced Indian Residential Schooling in Canada.^[3]   

Acknowledgements and apologies are an important first step, yet without action, they are empty words and empty promises of reconciliation. The spiritual harm and abuse that First Nations, Metis, and Inuit experienced during the era of colonial expansion require extensive education to understand the spiritual relationship with the Creator and with the Land that Indigenous peoples have. This education should include actively unlearning harmful views that place Indigenous ceremonies and practices as sinful in the eyes of God as referred to in the Anglican Church’s “Apology for Spiritual Harm”.  This apology was an excellent example of a church taking ownership.^[4] 

The arrogance of many churches resulted in grievous harm and the great loss of ceremonies and spiritual teachings that have sustained the First Peoples for generations upon generations. The intergenerational spiritual trauma created by the arrogance of many churches may begin to heal by furthering cultural education to church clergy, members, and leaders that identifies the importance of Aboriginal practices and ceremony.

Call to Action #60 is a very difficult recommendation to universally implement in Canada. It took Canada’s Supreme Court until 2017 with the Ktunaxa Nation v. British Columbia ^[5] case to issue a ruling on Indigenous religious freedom which in the end only ended up showing that the Supreme Court is unable to recognize its own colonial and culturally located position under the Charter.^[6]

There is no clear way to make it mandatory for a church organization to develop a curriculum of cultural education that would not violate their s. 2(a) Charter rights. This provision of the Charter works against Aboriginal Peoples in two ways, as previously mentioned and because protection under it requires claimants “to frame their religion in terms that are recognizable to the legal culture of Canada without reference to the colonial foundations of that very legal system or the broader colonial context of Canada”.^[7] Essentially indicating that Indigenous religious freedom, under s. 2(a), is currently an impossibility and poses a significant barrier.  

From a policy perspective, this is a very difficult recommendation for the government to implement that would be effective, it would need to work with Indigenous communities and organizations cohesively to do so and make significant changes in government policy. Moving forward, it remains up to each religious group to play its own part in working towards reconciliation through cultural education and it will be interesting to see who takes this seriously. ^[8]

Until Next Time,

Team ReconcilAction YEG

[1] Acadia University, “TRCtalk” online: <http://courseware.acadiau.ca/trctalk/category/calls/>. 

[2] Benna Crawford, “The Advantages of Religious Diversity” (29 Sept 2017), online: Classroom <classroom.synonym.com/the-advantages-of-religious-diversity-12087077.html>.

[3] CAID.ca, “Church Apologies for Indian Residential Schools”, online: <caid.ca/Dchurch_apology.html>. 

[4] Archbishop Fred Hiltz, “An Apology for Spiritual Harm” (July 12, 2019) online: <anglican.ca/news/an-apology-for-spiritual-harm/30024511/>.

[5] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16816/index.do 

[6] Nicolas Shrubsole, Policy Options, “The Impossibility of Religious Freedom”, 2017 online: The impossibility of Indigenous religious freedom (irpp.org) 

[7] Ibid

[8] TRCtalk, supra note 1, Call to Action #60. 

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Feature on Action & Justice Everyday: The Individual duty of Reconciliation

Tansi Nîtôtemtik,

Yes, we've said our goodbyes for the year and wrapped things up for the term.  As it turns out, it is hard to stay away when there is so much happening every day and we have been given this opportunity to use our voice.  

Today we want to highlight another blog that we feel brings an important personal context to the social and legal issues faced by Indigenous people in Canada. 

On his blog, Action & Justice Everyday, Community Organizer & Public Speaker, Michael Redhead Champagne recently asked the following question: Which Calls to Action/Calls for Justice do you work on every day?

Most of the focus on the ReconciliAction YEG blog has been geared toward the systems where the injustices against Indigenous people originated and continue to be perpetuated.  Reconciliation, to our team, is the duty that these systems have to right these historic wrongs and take active steps that will improve nation-to-nation relations and eliminate the ongoing systemic discrimination.  Champagne's post brings attention to the fact that reconciliation isn't just about systemic level oppression and action, but about efforts made at the individual level as well.  

The post first draws attention to the TRC Calls to Action released 5 years ago, the Report of the Inquiry on MMIWG Calls to Justice released in 2018, and the UN Declaration on the Rights of Indigenous people, before highlighting just a small sampling of recent events that illustrate how much work is still to be done. 

Champagne encourages non-Indigenous Canadians who want to further reconciliation to take some of the duty of reconciliation upon themselves.  He provides the following simple framework to do this: 

1. Read the MMIWG and TRC reports.

   • Bonus if you include additional reports like UNDRIP, or regional documents too

2. Select at least one Call to Action (TRC) and one Call for Justice (MMIWG)

3. Write them down and put them somewhere that you will see them everyday

   • we have to face this every day, join us in our pain so we can celebrate our victories and our healing together

4. Take action at every available opportunity yourself

5. Encourage your family, friends, co-workers, workplaces and communities to do the same

Team ReconciliAction couldn't agree more that these reports (even just the summaries) are so important for Canadians to read. Plus, with 94 Calls to Action and 231 Calls for Justice, there is surely a Call that can speak to everyone on an individual level. 

You can read the full Action & Justice Everyday post here: 

https://www.michaelredheadchampagne.com/blog/action-justice-everyday

The MMIWG Report and Calls for Justice can be found here: 

https://www.mmiwg-ffada.ca/final-report/

The TRC Summary and Calls to Action can be found here:

http://nctr.ca/reports.php

Let us know which Call to Action or Call for Justice you plan to work on every day in the comments below!

Until next time, 

Team ReconciliAction

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5 Years After TRC: Midpoint Recap

Tansi Nîtôtemtik,

As Team ReconciliAction gets ready to sign off for the semester, we wanted to take today to provide a report card for the TRC Calls to Action we have covered so far this year.  Check back tomorrow for our reflections on this term.  

So how is Canada doing on Calls to Action numbers 1 through 49?  Check out our infographic below, and let us know if you agree with our evaluation so far of Canada's response to the TRC to far. 

 

That's it for substantive material for this semester. We hope you've enjoyed reading, and be sure to check back tomorrow so we can say goodbye until 2021!

Until next time, 

Team ReconciliAction YEG

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Is it Reconciliation? New funding announced for Indigenous child welfare

(Image Credit: THE CANADIAN PRESS/Adrian Wyld)

Tansi Nîtôtemtik,

Indigenous child welfare has been a recurring topic on this blog as one of the areas of colonial law that most negatively impacts Indigenous people. For those of you reading for the first time, or just wishing to do a deep dive, links to our previous posts on Indigenous child welfare have been included at the end of today’s post.   

To quickly recap, the Act respecting First Nations, Inuit and Métis children, youth and families ( the “Act”) came into force this year.  You may have heard the Act referred to as Bill C-92 as it was known prior to its enactment. With more Indigenous children in care now than at the height of residential schools, this law was a groundbreaking step forward.^[1] It finally acknowledges the right of Indigenous groups to exercise jurisdiction over child welfare laws and operations.

A big criticism of this Act is the glaring omission of any funding provision to support the development of Indigenous-run child welfare systems.  This is a surprising omission given the TRC’s call for adequate and sustainable funding, as well as the Canadian Human Rights Tribunal’s repeated finding of systemic discrimination against Indigenous children through inequitable funding as compared to all other children in Canada.

New funding announced

On November 27^th, Prime Minister Trudeau announced $542 million in new funding for Indigenous child welfare.^[2]  This funding is intended to propel the co-implementation of the Act with Indigenous governing bodies, and assist in building capacity to establish Indigenous-run child welfare systems.^[3]  The news release indicates that this funding is in addition to $3 billion already invested in funding support since 2019, however we have not found any publicly announced funding totalling $3 billion.^[4] The proposals related to Indigenous child welfare in the 2019 budget included:

•       $1.2 billion over three years, beginning in 2019–20 to provide access to services for First Nation children.
•       $220 million over five years, beginning in 2019–20, to provide services to Inuit children as work continues with Inuit and other government partners to improve local capacity to deliver services.^[5]

Obviously this $542 million is welcome news, especially since it appears to be new funding (as opposed to re-allocated funding).  However, as with all funding, ascertaining the benefits conferred requires understanding who and what is eligible, and how to access that money. 

Breakdown of the new funding

The federal government’s commitment will provide $542 million in funding over five years, broken down as follows:

• $425 million over five years for capacity-building funding for Indigenous jurisdictions.
• Nearly $73 million over five years for coordination agreement discussions.
• Over $35 million for internal services.
• Nearly $10 million over two years for governance engagement mechanisms.^[6]

The Assembly of First Nations (AFN) has projected a funding requirement of $3.5 billion over 5 years in order for First Nations to effectively assume jurisdiction and operations of child welfare services.^[7] This funding estimate does not take into account the funding requirements of Inuit and Métis communities. Existing funding to Indigenous governing bodies, as we have repeatedly highlighted on this blog, is chronically deficient and could not support the transition.

What do we think?

Our first concern with funding for improved Indigenous delivered services, is that an organization must first be provincially delegated in order to receive funding.^[8]  The concept of self governing bodies being required to seek permission from the colonial government is odd, but nevertheless common in funding models.

Our second concern is the funding amount.  If Prime Minister Trudeau’s representation of an existing $3 billion in funding is correct, then this new funding adds enough to meet the AFN projected funding requirement, though again, this does not factor in funding needs of Inuit and Métis governing bodies. The actual funding amount allocated is difficult to ascertain as Canada has not released an official budget in the past two years, so we are forced to accept these announcements at face value for now.

The third concern Team ReconciliAction has with this funding announcement, is that there is no mechanism for distribution of the funds.  The AFN entered into a protocol agreement earlier this year that included bi-lateral meetings and a joint finance table. However Inuit and Métis governing bodies have not yet made any such agreement.^[9]  There are also many First Nations that are not represented by AFN, who would require funding for the implementation of the Act.  This highlights an ongoing problem with the way that Canada provides pan-Indigenous funding. Canada ignores the known fact that these are distinct nations with distinct laws and distinct needs, and uses distribution models that create conflict between Indigenous groups who are then forced to fight for the funds they require.

Overall, it is a positive that there is funding for the implementation of this Act, though it remains disappointing that it was omitted from the legislation.  Indigenous people are tired of being told to wait for things that Canada stripped away over 150 years ago, but the roll-out of this funding is just another “wait-and-see” at this time.

Links to previous posts on Indigenous Child Welfare

Part I: Sixties Scoop

Intergenerational Injustice & Indigenous Child Welfare

Ohpikihawasowin (the raising of children)

Moving Forward and Looking Back: Indigenous Children

In the Media: Spirit Bear Teddy Bear Tea Party & Book Launch

ILSA Speaker Series: Panel Discussion and the Aboriginal Justice Award

Systemic Barriers and Indigenous Children: Bill C-92

Systemic Barriers and Indigenous Children: Bill 22

Influential Indigenous Women: Dr. Cindy Blackstock

In the Media: The Canadian Human Rights Tribunal Orders Compensation for First Nations Children

The Role of the Indigenous Community in Child Development

Indigenous Mothering and the Impacts of the Child Welfare System

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

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

"Decolonization" and Why it Matters in the Context of Child Welfare

De-colonizing Racine v Woods

An Overview of Bill C-92

An Overview of Bill 22

5 Years After TRC: Reducing Children in Care

5 Years After TRC: Reducing Children in Care Part 2

5 Years After TRC: A National Standard

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

 

Maarsii to everyone who participated in our polls on social media telling us to write this post, stay tuned tomorrow for more TRC response evaluations!

Until Next Time, 

Team ReconciliAction

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¹ Olivia Stefanovich & John Paul Tasker, “Ottawa, AFN pen agreement to map out funding for First Nations child welfare overhaul”, (7 July 2020), online: CBC News <https://www.cbc.ca/news/politics/indigenous-child-welfare-c92-funding-1.5639885>.

² “More support to advance reform of services for Indigenous children and families”, (27 November 2020), online: Prime Minister of Canada <https://pm.gc.ca/en/news/news-releases/2020/11/27/more-support-advance-reform-services-indigenous-children-and-families>.

³ Ibid.

⁴ Ibid.

⁵ Department of Finance Government of Canada, “Budget 2019: Chapter 3”, (19 March 2019), online: <https://www.budget.gc.ca/2019/docs/plan/chap-03-en.html#Chapter-3---Advancing-Reconciliation>.

⁶ supra note 2.

⁷ Jorge Barrera & 2019, “First Nations need billions in funding to take over child welfare services, says AFN regional chief”, (3 December 2019), online: CBC News <https://www.cbc.ca/news/indigenous/afn-special-chiefs-assembly-1.5381566>.

⁸ Government of Canada; Indigenous and Northern Affairs Canada; Communications Branch, “First Nations Child and Family Services”, (3 November 2008), online: <https://www.sac-isc.gc.ca/eng/1100100035204/1533307858805>.

⁹ Indigenous Services Canada, “The Assembly Of First Nations and Canada Sign a Historic Protocol Agreement to Advance the Transfer Of Child And Family Services To First Nations”, (7 July 2020), online: gcnws <https://www.canada.ca/en/indigenous-services-canada/news/2020/07/the-assembly-of-first-nations-and-canada-sign-a-historic-protocol-agreement-to-advance-the-transfer-of-child-and-family-services-to-first-nations.html>.

5 Years After TRC: Youth Injustice

(Christie Belcourt, The Crow Taught Her. She Listened. via “Feature artist for April 2020: Christi Belcourt”, (19 April 2020), online: Alberta Native News <https://www.albertanativenews.com/feature-artist-for-april-2020-christi-belcourt/>.)

 

Tansi Nîtôtemtik,

Last week we discussed Canada’s response to TRC Call to Action #30, which addresses the over-incarceration of Indigenous people in Canada. Today we will evaluate Call to Action #38, which calls upon the “federal, provincial, territorial, and Indigenous governments to commit to eliminating the overrepresentation of Indigenous youth in custody over the next decade.”^[2]

 

Since the Youth Criminal Justice Act (YCJA) came into force in 2003, overall youth incarceration has been significantly reduced.^[3]  However, the population of incarcerated Indigenous youth has not been decreasing at the same rate, and the proportion of the incarcerated youth population that is Indigenous has been steadily increasing.^[4]  

 

As of 2018, the proportion of incarcerated Indigenous youth had risen to 43%, up from 26% in 2008.^[5] Both of these numbers are disgraceful given that Indigenous youth account for about 8% of the Canadian youth population.^[6]  But what else do these numbers tell us?

 

1. If the overall incarcerated youth population is decreasing, it's because fewer non-Indigenous youth are being imprisoned.  
2. Indigenous youth offenders are still consistently incarcerated for unlawful conduct.
3. Indigenous youth offenders are far more likely to be imprisoned than non-Indigenous youth offenders.

 

This over-incarceration of Indigenous youth has been linked to the similar overrepresentation in the child welfare system, and those affected have been dubbed “Crossover Kids”. A report analyzing this link was released this past April by the Manitoba Centre for Health Policy (MCHP).^[7]  In Manitoba, around 25% of children identify as Indigenous, yet Indigenous children and youth make up an unconscionable 90% of children in care and  80% of corrections admissions.^[8]  The report found a very high likelihood of overlap for Indigenous youth who were 24 times more likely to have experienced both systems, than non-Indigenous youth in the province.^[9]  In determining the reasons for this overlap, the report was careful to note that Indigeneity is NOT an indicator for criminality, but instead placed the blame squarely on Canada, citing: 

 

• Colonial assimilation policies and practices, such as residential schools and the Sixties Scoop; 
• Systemic racism in both Child and Family Services and the youth criminal justice system,  and 
• Structural violence and "chronic underfunding" of services to Indigenous communities which amount to a denial of basic human rights, or necessary resources.^[10]

 

So what is Canada doing to reduce incarceration of Indigenous youth since the TRC report called them to action in 2015?

 

An amendment to the YCJA came into force in December of 2019, which will work to reduce youth over-incarceration by: 

• encouraging the use of extrajudicial measures and judicial reviews as alternatives to laying charges for administration of justice offences; 
• limit the use of custodial sentences for administration of justice offences;
• require that circumstances of Indigenous accused and of accused from vulnerable populations are considered at bail, and
• ensure that the conditions imposed on youth at the bail stage or at sentencing are only those necessary to address the offending behaviour.^[11] 

 

On November 18th, the Government of Canada announced $5 million in funding that will be spread across eight organizations who do preventative and restorative justice work with Indigenous youth.^[12]

 

Whether these initiatives will have any impact on over-incarceration of Indigenous youth remains to be seen. Unfortunately, they do not address the systemic racism, systemic violence, over-representation in child welfare, and the chronic underfunding of Indigenous communities that are known factors in Indigenous youth offending. These new measures are the equivalent of putting a bandaid onto a severed artery. Without a sweeping reform in Canada’s approach to reconciliation, we are not likely to produce improved outcomes for Indigenous youth. Team ReconciliAction assigns Canada a Grade of ‘F’ on the response to Call to Action #38.   

Did we miss anything Canada is doing to fix the over-incarceration of Indigenous youth? Tell us in the comments!

 

Until Next Time, 

Team ReconciliAction

 

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¹  Patricia Monture-Angus, Thunder in my soul: a Mohawk woman speaks (Halifax, N.S: Fernwood Pub, 1995) at 59.

² 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: Truth and Reconciliation Commission of Canada, 2015) at 178.

³ Youth Criminal Justice Act, SC 2002, c 1 [YCJA]; Nicholas Bala, Peter J Carrington & Julian V Roberts, “Evaluating the Youth Criminal Justice Act after Five Years: A Qualified Success” (2009) 51:2 Can J Criminol & Crim Justice 131 at 139.

⁴ Nate Jackson, “Aboriginal Youth Overrepresentation in Canadian Correctional Services: Judicial and Non-Judicial Actors and Influence” (2015) Alta L Rev 927 at 928, 935.

⁵ Statistics Canada, Adult and youth correctional statistics in Canada, 2017/2018, by Jamil Malakieh, Catalogue no. 85-002-X (Ottawa: Statistics Canada, 2019) at 7.

⁶ Ibid. 

⁷ Marni Brownell et al, The Overlap Between the Child Welfare and Youth Criminal Justice Systems: Documenting “Cross-Over Kids” in Manitoba (Winnipeg, MB: Manitoba Centre for Health Policy, 2020).

⁸ Nicholas Frew, “Overlap between involvement in CFS care, Manitoba youth justice system ‘hard to deny’: co-author of new study”, (3 June 2020), online: CBC News <https://www.cbc.ca/news/canada/manitoba/study-children-youth-cfs-youth-criminal-justice-manitoba-1.5596165>.

⁹ Brownell et al, supra note 7 at 76.

¹⁰ Ibid at xviii.

¹¹ Canada, Department of Justice, Legislative background: an Act to Amend the Criminal Code, the Youth Criminal Justice Act and Other Acts and to Make Consequential Amendments to Other Acts (Bill C-75). (Ottawa: DOJ, 2018).

¹² Department of Justice Canada, “Government of Canada supports restorative justice initiatives across the country, including those supporting Indigenous communities and youth”, (18 November 2020), online: gcnws <https://www.canada.ca/en/department-justice/news/2020/11/government-of-canada-supports-restorative-justice-initiatives-across-the-country-including-those-supporting-indigenous-communities-and-youth.html>.

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/>. 

“The Spanking Law” remains on the Books

Tansi Nîtôtemtik,

While many of the TRC Calls to Action require the Government of Canada to make sweeping institutional and structural changes, #6 is simply stated. TRC Call to Action #6 calls for Section 43 of the Criminal Code^[1] , also known as the “spanking law”, to be repealed. 

S.43 excludes “reasonable physical correction of children by their parents and teachers”^[2] from the definition of assault in the Criminal Code, as follows:

Correction of child by force

43 Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.^[3]

If you are surprised that corporal punishment against children is explicitly protected in the Criminal Code, you may be even more surprised to find that this law was unsuccessfully challenged in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) at the Supreme Court in 2004.^[4] In that decision, the Court clarified that “corrective force” will only be reasonable in certain situations, to create a “zone in which discipline risks criminal sanction”.^[5] For example, the Court reasoned that s.43 would not apply to children under two, children incapable of understanding the need for “correction”, or conduct that does not cause harm.^[6]  

Why repeal s.43? 

As a signatory to the United Nations Convention on the Rights of the Child, Canada has a responsibility to ensure that children are protected from all forms of abuse under Article 19(1).^[7] The United Nations Committee on the Rights of the Child has since recommended that Canada repeal s.43. The recommendation for repeal is supported by a substantial body of research showing that corporal punishment negatively effects children.^[8]

TRC Call to Action #6 recognizes that corporal punishment is “a relic of a discredited past and has no place in Canadian schools or homes.”^[9] The TRC’s interest in corporal punishment stems from the frequent and excessive use of such punishment in Residential Schools to control and discipline Indigenous children. Often this punishment became abusive, and has created generations of resulting trauma.^[10]   Many Indigenous groups carry strongly held beliefs that children are gifts “on loan” from the Creator, and should not be physically punished.^[11] The condonation of corporal punishment in s. 43 goes against these beliefs.

What progress has been made?

Upon completion of the TRC, a bill to repeal s. 43 was introduced to the Senate, but it did not progress. As of today, s.43 remains the law in Canada. 

Team ReconciliAction takes the position that this should have been one of the first TRC Calls to Action for the Government to complete. Let’s leave this antiquated law behind, and move towards a future of reconciliation that honors our children.  

Until next time,

Team ReconciliAction YEG

 

¹Criminal Code, RSC 1985, c C-46, s.43. [Code]

²Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 at para 1. [CFCYL]

³Code, supra note 1. 

⁴CFCYL supra note 2. 

⁵Ibid at para 40. 

⁶Ibid at paras 24-30.

⁷Laura Barnett, “The "Spanking" Law: Section 43 of the Criminal Code”, online: Library of Parliament^<lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201635E#a3>, citing Convention on the Rights of the Child, 20 November 1989, Article 19(1). (Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.)

^8Ibid.

⁹Truth and Reconciliation Commission, “Canada’s Residential Schools: The Legacy,” The Final Report of the Truth and Reconciliation Commission of Canada (December 2015) at 66. 

^{10Facing History and Ourselves, “Stolen Lives: The Indigenous People of Canada and the Indian Residential Schools, Chapter 7: Punishment and Abuse”, online: <facinghistory.org/stolen-lives-indigenous-peoples-canada-and-indian-residential-schools/chapter-4/punishment-and-abuse>. (“The line between punishment and abuse was frequently crossed. Many in the schools’ administrations believed that the students’ independent spirit had to be broken in order for them to accept a new way of life. Students who did not adhere to school schedules and regulations received strappings (whippings) and were often humiliated in front of peers.” )}

¹¹Kathleen Harris, “TRC promise puts Liberals on track to repeal spanking laws” (Dec 22, 2015) online: CBC News <cbc.ca/news/politics/spanking-truth-reconciliation-laws-1.3376725>.

^{12Bill S-206, An Act to amend the Criminal Code (protection of children against standard child-rearing violence), 1st Sess, 42nd Parl, 2015 (First Reading December 8, 2015).}

Orange Shirt Day: “Every Child Matters”

Today we honor those who attended Residential Schools throughout Canada and we acknowledge the truth of their experiences by commemorating and raising awareness of the Orange Shirt day movement which is on September 30th every year. ¹

Learning about the legacy of the Residential schools, its survivors and the memory of those children who did not survive, it felt important to understand and learn about the origins of how the Orange Shirt movement began. On Sept 25th, 2020, ReconciliAction YEG attended a live facebook event where Phyllis Webstad (co-founder of the Orange Shirt Day movement) told her story and gave us a glimpse into a past that has shaped our present and will most certainly influence our future. ²

Phyllis Webstad is a 3rd generation residential school survivor.  Her parents and grandparents both endured 10 years each of the stark and brutal living conditions at the St. Joseph's Mission Indian Residential School, located 20 minutes past Williams Lake, B.C. Phyllis spent a year at St. Joseph’s Mission from  1973-74, long enough to understand what she called, “pee your pants terror” and why her granny who raised her, was not ever able to show love and affection. Phyllis’s own son years later would sadly attend Gordon Residential School in Punnichy, Saskatchewan before its closure in 1996. It was the last federally funded residential school to close,³  making it four generations who attended residential school in her family.

Figure 1 Gordon Residential School, Pinnichy, Saskatchewan, ca 1946 ACC MSCC/S7-P75-103/ photo credit https://www2.uregina.ca/education/saskindianresidentialschools/gordons-indian-residential-school/

The Canadian government had made it mandatory for every First Nations child between 7 and 16 years of age to attend residential schools in April of 1920.⁴

At 6 years old Phyllis was old enough to attend residential school. Her granny, in preparation of that departure, took her on a rare trip into town to buy a new shirt for her first day at the “Mission”. What caught her eye was a “shiny orange shirt”, it was bright and made her excited. She wore it proudly to attend the residential school that she described as both “intimidating and scary”. Once she arrived at the school any feelings of excitement in seeing her cousins quickly dissipated when her hair was cut and she was made to strip out of her clothes. It was especially hard giving up her orange shirt, yet she had no choice, her feelings did not matter sadly no one’s did, and the shirt was never given back. Donning communal clothing, all ties to her identity and culture were ripped away like a cruel joke.

“Felt like grownups were playing a cruel joke on them” - Phyllis Webstad

At the “Mission”, there was no hugging, no touching (at least not in a good way), no looking at each other and family members of the opposite gender were never allowed to speak to one another. Everyone would cry quietly every night. Phyllis said when siblings were especially lonely they would go to what they referred to as “the invisible line” outside and walk up and down far enough away from each other so no one would notice because that was the only way they could visit.

She also talked about how granny always distanced herself from children as they got older, (all 10 of her children had attended residential schools).She would show love and affection to babies, but as soon as they reached 5, she grew more distant. Granny had been preparing them all for an environment where they did not matter. It was a place where she knew none of them would matter and where the phrase, “Every child matters” originated.⁵

If reconciliation first begins with telling the truth, then the next most meaningful thing we can do is listen to the stories from survivors and remember those who did not survive, because every child deserves to be remembered and every child matters.

Today please consider wearing an orange shirt to show your support. Thank you for reading.

Until next time ReconciliAction YEG

A word from the President of the Indigenous Law Students Association, University of Alberta: https://www.facebook.com/watch/?v=354798429098801  

 

[1] Orange Shirt Society, “September 30” online: Orange Shirt Day </www.orangeshirtday.org/>. [Orange Shirt Society]

[2] Medicine Wheel Education, “Thank you to everyone who joined us live for the Orange Shirt Day online classroom….” (16 September 2020) posted on Medicine Wheel Education, online: Facebook: <www.facebook.com/medicinewheeleducation/videos/1317463278595862>.

[3] University of Regina, “Gordon’s Indian Residential School” online: Shattering the Silence <www2.uregina.ca/education/saskindianresidentialschools/gordons-indian-residential-school/>. 

[4]The Canadian Encyclopedia, “Residential Schools” online: Timeline  <www.thecanadianencyclopedia.ca/en/timeline/residential-schools>.

[5] Orange Shirt Society, supra note 1, Phylis Story <www.orangeshirtday.org/phyllis-story.html>.

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.

TRC Call to Action #3 - Jordan’s Principle

In 1999, little Cree boy Jordan River Anderson was born in Norway House Cree Nation in Manitoba. He had multiple disabilities and complex medical needs which meant he would need to stay in a hospital. When he was 2 doctors said he could be moved to a special home that could accommodate his extensive needs. However, the federal and provincial governments couldn’t agree on who should pay for his home care costs, which meant Jordan would remain in a hospital for the remainder of his life which ended tragically at the age of 5.¹ Jordan was never able to go home, nor did he ever have the opportunity to be surrounded by family or community. This is a frustrating analogy to the residential school and Indian Hospital experiences many First Nations children endured.  Even at the turn of the new millennium, this was a sad reminder that Reconciliation has a very long way to go.

Following his death, in 2007 the Federal House of Commons² unanimously passed Motion-296 supporting and affirming that the government should immediately adopt a child-first principle: “Jordan’s Principle”, which intended to ensure no jurisdictional gaps or delays would ever happen again in providing First Nations children prompt access to required services, products, or supports they need. Furthermore, it would ensure that the first governmental body to be approached would be the one to pay for the child’s care, leaving jurisdictional disputes over responsibility of the costs to a later date.³

A child’s access to healthcare and quality of that care should not be up for debate, and has no business being a political dispute. Yet, unfortunately, that is what happens for many First Nations children who are either denied universal health care, endure unequal and delayed care, or are institutionalized in non-indigenous institutions away from family and community, all because governments have politicized their health and not honored their treaty obligations to health.⁴

The TRC Call to Action #3 states that Jordan’s Principle be fully implemented by all levels of government. By failing to promptly acknowledge inadequacies and implement comparable funding to Indigenous children without any delays, Canada discriminates against First Nations children. This on-going battle is a heavy hindrance to Reconciliation. Elder Elmer Courchene said it best on the Jordan River Anderson Documentary, The Messenger: "“Do justice, loving justice, caring justice, honest justice, respectful justice for our little ones. Simple.” ⁵ 

Due to hard fought battles, recent changes and implementations by different levels of governments in Canada have resulted in improved funding outcomes.  In November 2018, a Memorandum of Understanding was signed by eleven First Nations and Federal, Provincial and Territorial governments. This trilateral agreement was the first of its kind.⁶ Since 2018, additional tribunal and judicial rulings have attempted to cement eligibility rules for First Nations children and families. This will be discussed more in detail on tomorrows blog.

Please read tomorrow’s blog entry to find out what final grade ReconciliAction YEG gives Canada for TRC Call to Action #3.

 

[1] https://fncaringsociety.com/sites/default/files/Jordan's%20Principle%20Information%20Sheet.pdf

[2]https://www.fnha.ca/what-we-do/maternal-child-and-family-health/jordans-principle/faqs

[3] Private Member’s Motion M-296, 1st Sess, 39th Parl, 2007 (tabled by Jean Crowder, Nanaimo-Cowichan NDP, unanimously passed by House of Commons, 12 December 2007). See Vandna Sinha & Anne Blumenthal, “From the House of Commons resolution to Pictou Landing Band Council and Maurina Beadle v. Canada:  An update on the implementation of Jordan’s Principle” (2014) 9:1 First People’s Review 80.

[4]https://www.cerp.gouv.qc.ca/fileadmin/Fichiers_clients/Documents_deposes_a_la_Commission/P-772-31.pdf#:~:text=Jordan%E2%80%99s%20Principle%3A%20Reconciliation%20and%20the%20First%20Nations%20Child,process%20of%20truth%20and%20healing%2C%20leading%20toward%20recon-

[5] https://www.youtube.com/watch?v=cOT6snSDe4w

[6]https://rdnewsnow.com/2018/11/16/alberta-first-nations-sign-new-agreement-to-uphold-jordans-principle/

 

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.

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.

De-colonizing Racine v Woods

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“Continuing to apply Racine carries on colonization and should make Canada quite uncomfortable” [1]

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Photo retrieved from <communitynewsblog.com_2018_05_its-a-sham-survivors-blast-federal-court-hearing-into-875m-sixties-scoop-settlement>

Tansi Nîtôtemtik,

Historical Application of Attachment Theory and the Best Interests Test
Racine v Woods[2] is a seminal decision from the Supreme Court of Canada which considers the role of attachment in the best interests analysis when determining the placement of children. Leticia Racine was a First Nations child who was placed with and subsequently adopted by her non-First Nations caregivers. Leticia’s mother overcame her addictions and was in a position to provide a safe and stable environment for Leticia. Despite this progress, the Court when applying the best interests test found “…[w]hen the test to meet is best interests of the child, significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond develops with the prospective adoptive parents the less important the racial element becomes”.[3] The ripples of the Racine decision continue to reverberate today and is used in contemporary child welfare decisions.

 

Challenging the Application of Attachment Theory in Indigenous Cultures

In “Rethinking Racine v Woods from a Decolonizing Perspective: Challenging the Applicability of Attachment Theory to Indigenous Families Involved with Child Protection” Choate et al challenges attachment as being the appropriate theory to be applied to Indigenous cultures.[4] Within the article Choate et al examines the application of the best interests test as set out in Racine in three cases in Alberta determining child placement. In each of the cases, judges were faced with the decision of placing Indigenous children with biological family or allowing them to remain in the care of non-Indigenous foster caregivers.[5] In each instance, the judge applied the attachment theory analysis, finding that the removal of the children from their non-Indigenous caregivers would create too great of harm.[6]

Choate et al questions the universality of applying attachment theory, identifying it as being rooted in white, ethnocentric cultures.[7] There is an inherent flaw in applying a theory with roots in one culture to the practices of another. Attachment is based on a dyadic relationship between a child and their primary caregiver. A dyadic approach is in contrast with Indigenous perspectives on child rearing which values a multidirectional caring system.[8]

The diminution of the role of culture and identity in the Racine decision is in contrast with the findings of the more recent Brown v Canada (Attorney General)[9]. In Brown it was found that the loss of Aboriginal identity left children feeling fundamentally disorganized.[10] Choate et al emphasize the importance of a sense of identity and that ultimately, children without one are being set up for mental health and substance abuse issues.[11]

Since the 1983 Racine decision much has changed with respect to understanding the impact of colonization on Indigenous Peoples and the need for respecting and embracing Indigenous teachings, knowledges and practices. The rate of Indigenous children in care continues to be disproportionally high, it begs the question who does the current approach to best interests actually serve? Until we are able to answer this crucial question, we should all feel uncomfortable.

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[1] Peter W. Choate et al, “Rethinking Racine v Woods from a Decolonizing Perspective: Challenging the Applicability of Attachment Theory to Indigenous Families Involved with Child Protection” (2019) 34:1 CJLS at 78.

[2] Racine v. Woods, [1983] 2 SCR 173 [Racine].

[3] Supra note 2 at 187 [emphasis added].

[4] Supra note 2.

[5] Supra note 1 at 60.

[6] Ibid.

[7] Supra note 1 at 69.

[8] Supra note 1 at 75.

[9] Brown v Canada (Attorney General), [017] ONSC 281 [Brown].

[10] Supra note 9 at 7.

[11] Supra note 1 at 65.