March 21, 2019
Yellowhead Institue Critique of Bill C-92
“Bill C-92, An Act respecting First Nations, Métis and Inuit children, youth and families” was graded as follows by the Yellowhead Institute of Ryerson University based on analysis by five Indigenous legal scholars. (See also First Nations Child and Family Caring Society Information Brief in C2A # 4)
National Standards: …………………… C
Data Collection and Reporting: …..D
Yellowhead Institute Recommendations
- Ensure that standards exist in law so that Indigenous children do not automatically become government wards without significant efforts are made to maintain familial and community care.
- Require ongoing legal relationships, or at the least, access to children’s family of origin.
Include strong, mandatory language around BIOC to address judicial bias and overtake any binding precedents in this area.
- Include “active efforts” or “maximum contact” clauses in relation to Indigenous child welfare with First Nations have not taken over full jurisdiction.
- A requirement of written documentation of active efforts to find placements according to the priority set out or affidavit evidence from the Indigenous group that there is no available placement.
- And/or a presumption that an access order with some family or community member and a long-term funding commitment for regular travel back to the community is included as a term of any permanency order.
- Attach clear federal funding commitments for First Nations pursuing child welfare jurisdiction.
- Ensure funding reflects the principle of substantive equality and which also meets the needs and circumstances of children on reserve
- Ensure off-reserve, Métis, non-status and Inuit children and families are included in budgets, distinct from non-Indigenous children and families.
- Compel coordination between federal and provincial governments regarding incentives to cooperate and adequately fund Indigenous governing bodies to implement Jordan’s Principle.
- Establish a dispute resolution mechanism to deal with situations where Indigenous groups experience challenges in entering collaboration agreements with Canada and the provinces, in the cases they are required.
- Create an independent body to hear disputes and make binding decisions on all parties.
- Recognize jurisdiction as a right to self- determination under UNDRIP rather than a s. 35 right.
Set a clear path out of the existing jurisdictional squabbling between the provincial and federal governments.
- Revise paramountcy rules so they are clear enough for, and accessible to community members, so that can understand in time sensitive or emergency circumstances.
- Contain clear conflict of laws principles and processes that give real weight to Indigenous law-making authority and jurisdiction.
- Address the long-standing issue of services to First Nations children who are residing off-reserve, as well as non-status, Métis and Inuit children.
- Provide clarity and direction on how the “Best Interests Of the Child” (BIOC) standard will be defined regarding the applicability of laws. At minimum this should clarify a standard for best interests of the Indigenous child— determined by Indigenous legal and community standards—and dictate the application of federal and provincial laws to Indigenous children.
- Clearly and openly resolve the lack of funding for Indigenous law-making, administration and enforcement as well as funding for the preventative of child and family health.
Data Collecting and Reporting
- Mandate collection and publication of data along the lines of TRC Call to Action #2
- Address privacy issues by anonymized and displaying data in aggregate.