Preliminary Briefing Sheet: Bill C-92 “An Act respecting First Nations, Métis and Inuit children, youth and families”.
Important to this legislation, Canada has refused to adopt the ‘Spirit Bear Plan to end all inequalities in public services for First Nations children, youth and families’ and has no proposal of its own to end inequalities. This means that there are no assurances that the issues that drive the over-representation of First Nations children in child welfare care will abate (i.e. poverty, poor housing, substance abuse related to inter-generational trauma and domestic violence).
Based on a preliminary analysis and input from outside legal counsel, FNCFCS focused their commentary on the following thematic considerations:
- Jurisdiction: who interprets the Bill, what are the principles and processes guiding that interpretation, and how is it enforced? Absent affirmation of, and funding for, First Nations legal systems and courts, it appears mainstream courts will interpret the Act. This will effectively mean that terms like best interests will be determined be mainstream courts. Sections 4, 10, 19, 23 and 32 that all include provisions that could infringe on First Nations jurisdiction. For more precision:
- Section 4 Minimum Standards
- Section 10 Best Interests of then Indigenous Child
- Section 19 Charter of Rights and Freedoms
- Section 23 Exceptions
- Section 23 Federal Law
- Section 32 Regulations
- Funding: there is nothing in Bill C-92 that binds the federal government to provide needs-based and substantively equal funding that would support First Nations jurisdiction in this Bill.
- Framing: Overall, the Bill focuses on the reduction of over-representation of First Nations children in care within an incomplete frame of western child welfare concepts.
- Complementary Laws: Current child and family service laws act in relationship with other laws governing children such as public trustee acts, coroner’s acts, child and youth advocate acts. Bill C-92 does not explicitly provide the support for First Nations to exercise jurisdiction in these related areas.
- Lack of developmental or remedial measures: Section 20 says that if a collaboration agreement is not reached after one year the First Nations law takes effect. There are no safeguards to ensure the foundations for effective child and family service jurisdiction such as community consultation, First Nations laws, governance, programs, staffing, dispute and evaluation mechanisms are in place before the one-year time period expires or in the absence of an agreement, when the First Nations law is enacted. The bill is bereft of the funding and supports many First Nations will require in order to develop and implement a solid foundation for success.
See “Preliminary Briefing Sheet” below: