Response to Tabling of Bill C-92

Assembly of First Nations (AFN) National Chief Perry Bellegarde appeared before the House of Commons Standing Committee on Indigenous and Northern Affairs today, speaking directly to e urgency of passing federal legislation on First Nations child welfare in this session of Parliament. Proposed amendments submitted to the Committee included:

Funding: Preamble. p. 2, Line 33)

• Improved funding provisions are required to achieve the purposes of the Bill, including
• Supporting a shift to First Nations child and family services to achieve priority on prevention to promote family unity
• Providing capacity and operational support for First Nations governing bodies to pass laws, enforce laws and resolve disputes
• Ensuring that federal and provincial coordinating agreements can address the fiscal arrangements to ensure there are proper safety and other mechanisms in place for a seamless child safety system in Canada
• Meeting required compliance measures with the 2016 Canadian Human Rights Tribunal decision in the Caring Society/AFN complaint
• A new provision is proposed for the “body” of the Bill to repeat the principled approach and to clarify that funding includes support for jurisdiction. This is necessary to ensure the shifts in the Bill can be implemented.

Coordination Agreements (p.11. Line 10)

• This amendment tracks wording in the Preamble and incorporates the principle into the negotiation of funding to implement First Nations laws in a coordinated fashion with other Governments. The proposed wording helps clarify that Bill C-92 is a statutory basis for funding that responds to the issue of discrimination and thus addresses items which the Canadian Human Rights Tribunal has determined are not consistent with human rights standards and anti-discrimination.

UNDRIP reference

Purpose and Principles Section 8 Page 4, Line 29

• The addition of reference to the UN Declaration is necessary to meet the Truth and Reconciliation Commission Calls to Action and recommendation that the UN Declaration provide the framework. While the UN Declaration is in the preamble, it must be part of the purposes of child welfare reform explicitly added to Section 8.
• A similar provision appears in Bill C-91 on Indigenous languages and the reference to the UN Declaration is in the purposes provision of that Bill.
• Consistency in all legislation is important and this change may be a correction of a matter that was dropped I the last draft.

Best Interests of the Child Page 5, Line 7

• The proposal clarifies that “best interests of the child” is central but provides space for First Nations laws to prescribe criteria consistent with the customs, values and practices.
• First Nations laws should be viewed as supplementing the factors listed in the Bill and further prescribe items that are integral to the customs, traditions and practices of First Nations peoples. Space for this must be specifically recognized within the ‘Best Interest’ provisions in Section 9.
• This will be important when conflicts arise and it is not clear what weight should be given to various principles to consider in reaching a decision on the best interest of a First Nations child.

Jordan’s Principle: Preamble Page 2, Line 7

• Specific reference to Jordan’s Principle is recommended in both the preamble and Section 9 of the Bill in order to affirm the continuation of this approach to serving the child and not permitting jurisdiction disputes to become a barrier to needed services and supports to First Nations children. On January 2016, the Canadian Human Rights Tribunal (CHRT) issued a ruling that ordered Canada to immediately implement the full meaning and scope of Jordan’s Principle.
• As a result of this ruling and subsequent rulings, Jordan’s Principle is now a legal principle that applies to all First Nation children regardless of where they live, ensuring there are no gaps in government service and recognizes that First Nations children may need government services that exceed a normative standard  to ensure substantive equality , including receiving culturally appropriate services

Page 5, Line 30

• In December, 2007, the House of Commons unanimously passed a motion that the federal government should immediately adapt a child-first principle, based on Jordan’s Principle, to resolve jurisdictional disputes involving the care of First Nation children.

Jordan’s principle gives a concrete framework for the understanding of substantive equality and reinforces the need to work on issues that have been the underlying problems with children being over-represented in out of home care placements rather than receiving services within their families and with the support of their community