Child Welfare (1-5): Current Problems

Bill C-92


January 10, 2022


AB

Alberta opposition to Bill C-92

Toronto Star – A First Nation in Alberta says it’s been nearly three months since it was supposed to take legal control of its own child welfare but the provincial government won’t recognize the arrangement made possible by federal legislation. “(Alberta) won’t recognize it at all. They won’t sign co-ordination agreements,” said Darin Keewatin, executive director of Asikiw Mostos O’pikinawasiwin Society, a child welfare organization for the Louis Bull Tribe.

The tribe asked to enter an agreement with Alberta and Canada in October 2020 under a federal law that was proposed in Bill C-92 and was enacted the previous year. It allows First Nations, Inuit and Métis communities to have jurisdiction over child and family services. The law says a three-party agreement should be reached within a year of a request. If an agreement has not been reached, but reasonable efforts were made, the child welfare laws designed by the Indigenous group come into play and supersede provincial or territorial ones.
Louis Bull Tribe’s law came into effect in October, but Keewatin said Alberta is not co-operating. “As soon as a tribe steps up to take responsibility and case manage their children, suddenly the ministry is saying, ‘Oh no, That’s not going to happen,’ ” he said.

Louis Bull’s law outlines the tribe’s protection and prevention services. That means cases involving Louis Bull children and families should be handed over to the society. Keewatin said the province hasn’t transferred all those cases. The province took control of talks from the beginning instead of respecting the community’s authority, he said. There were certain parts of the co-ordination agreement the province wanted resolved before signing it, he added.

Federal Indigenous Services Minister Patty Hajdu said talks have not reached a standstill yet, but they will if Alberta “is resolute in their opposition.” “I will continue to use every tool in my tool box to work with my provincial counterparts to help them move toward this model of self-determination.”
Criticism at the provincial level started before the federal legislation passed. Quebec opposed the law and filed a constitutional challenge that argued the law encroached on the province’s jurisdiction. Alberta had expressed concerns relating to liability, oversight and sharing of data.

As of March 2021, 71 per cent of children and youth receiving services in care were Indigenous despite only making up 10 per cent of the child population in Alberta.


February 11, 2022


Fed. Govt., QC

Québec Constitution Challenge to Bill C-92

CBC – The Quebec Court of Appeal issued a decision yesterday finding the law constitutional apart from two key sections that relate to Aboriginal self-government and child and family services that it ruled are unconstitutional. The court took issue with the section of the law that allows Indigenous child welfare laws to supersede provincial laws when they conflict. “It’s quite a devastating decision,” said Mary Ellen Turpel-Lafond, professor of law at the Peter Allard School of Law at the University of British Columbia. “The only kind of law that would be allowed under this decision is one that’s clearly subordinate to the provincial law.”

Turpel-Lafond, who was involved in consultations on developing the legislation, called the decision a setback for Indigenous children, families and self-government. She said the work First Nations, Métis and Inuit governments are doing to introduce new laws and policies to reunite families is now in doubt. She said the Quebec court’s decision should be reviewed by Supreme Court of Canada — a process that could take two years. “This is a bit of a slam dunk for the Indian Act,” she said.

“If you happen to be a kid that’s not living in the province that’s particularly friendly to Indigenous peoples having rights, you may not get any rights. That’s not what we want.
https://courdappelduquebec.ca/en/judgments/details/reference-to-the-court-of-appeal-of-quebec-in-relation-with-the-act-respecting-first-nations-inuit/


February 12, 2020


QC

Québec Constitution Challenge to Bill C-92

The Assembly of First Nations Quebec-Labrador (AFNQL) and the First Nations of Quebec and Labrador Health and Social Services Commission (FNQLHSSC) – presented a joint brief to the Laurent Commission (Special Commission on the Rights of Children and Youth Protection) aimed in particular at reaffirming the rights of First Nations to decide on the future and education of their children. The two organizations made recommendations that affect Act C-92, Bill 31, which aims to authorize the communication of personal information concerning certain missing or deceased Aboriginal children to their families, and the Youth Protection Act (YPA). The AFNQL and the FNQLHSSC have reiterated their constitutional right to manage family support and youth protection services, according to Act C-92, and are asking the Government of Quebec to withdraw its dispute and negotiate coordination agreements in good faith with First Nations governments and Canada. With regard to the YPA, they are also calling for:

  • Indigenous children to be exempted from the application of the maximum periods of foster care and
  • that the regulation on financial assistance to promote the adoption and tutorship of a child be amended.
  • More generally, the two organizations recommend that Quebec implement measures that respond appropriately to the calls for justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls and the calls to action of the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Québec.

December 20, 2019


Fed. Govt., QC

Québec Constitution Challenge to Bill C-92

Assembly of First Nations (AFN) National Chief Perry Bellegarde says the Government of Quebec’s decision to request that the Quebec Court of Appeal rule on the constitutionality of Bill C-92, the Indigenous child welfare act, is a setback that will further harm First Nations children and families.

This move could lead to delay and conflict, further harming our children and families. The AFN will look to intervene in this case and we expect the federal government to stand with us in upholding First Nations jurisdiction. We need urgent action to address the discrimination and the legacy of our children taken from their families and Nations. Bill C-92 affirms First Nations jurisdiction over child welfare.


March 17, 2022


Fed. Govt., QC

Québec Constitution Challenge to Bill C-92: AFN supports appeal to Supreme Court

The Assembly of First Nations (AFN) announced today that it stands with First Nations in Quebec and all First Nations’ jurisdiction over child and family law.

“Taking the Act to the Supreme Court presents an opportunity for the full recognition and affirmation of First Nations Inherent rights, as well as the exercise of this jurisdiction, at the highest judicial levels of Canada,” said AFN Manitoba Regional Chief Cindy Woodhouse, who leads the portfolio on child and family services for the AFN Executive Committee. “The Act is the positive result of decades of advocacy to respect First Nations systems that support the best interests of our families. The decision from the Quebec Court of Appeal affirmed the First Nations Generic Inherent Right in Child and Family Services and to make laws that are protected under section 35 of the Constitution. The province of Quebec’s challenge undermines all of that progress.”


February 10, 2022


Fed. Govt., QC

Quebec Court of Appeal rules against two sections of Bill C-92

The Court of Appeal of Québec ruled on Feb. 10, 2022 that Bill C-92 “is constitutional, except for ss. 21 and 22(3), which are not”. These sections deal with the right of Aboriginal self-government and the regulation of Child and Family Services. As Mary Ellen Turpel-Lafond, professor of law at the Peter Allard School of Law at the University of British Columbia says,” “The only kind of law that would be allowed under this decision is one that’s clearly subordinate to the provincial law…It’s a bit of a slam dunk for The Indian Act.”


March 21, 2019


AB, BC, Fed. Govt., MB, NB, NL, NS, NT, NU, ON, PE, QC, SK, YT

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)

GRADES:
National Standards: …………………… C
Funding: ……………………………………..F
Accountability: ……………………………D
Jurisdiction: ……………………………….D
Data Collection and Reporting: …..D

Yellowhead Institute Recommendations

National Standards

  • 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.

Funding

  • 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.

Accountability

  • 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.

Jurisdiction

  • 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.