THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Tuesday, April 9, 2019
The Standing Senate Committee on Aboriginal Peoples met this day at 8 a.m. to study the subject matter of Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room, on television or listening via the web. I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional unceded lands of the Algonquin peoples.
I am Lillian Dyck, from Saskatchewan, and I have the privilege of chairing this committee.
Today, we are starting our pre-study of Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families.
Before we begin, I would like to invite my fellow senators to introduce themselves.
Senator Tannas: Scott Tannas from Alberta.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator McCallum: Mary Jane McCallum, Barren Lands First Nation, Manitoba region.
Senator McPhedran: Marilou McPhedran, Manitoba.
Senator Coyle: Mary Coyle, Nova Scotia.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Busson: Bev Busson, British Columbia.
The Chair: I would like to welcome to the committee this morning government officials from Indigenous Services Canada and the Department of Justice. From Indigenous Services Canada, we have Jean-François Tremblay, Deputy Minister; Joanne Wilkinson, Assistant Deputy Minister, Child and Family Services Reform; Isa Gros-Louis, Director General, Child and Family Services Reform. From the Department of Justice, we have Laurie Sargent, Assistant Deputy Minister, Aboriginal Affairs Portfolio.
Also joining us this morning is Ms. Cynthia Wesley-Esquimaux, formerly the Minister’s Special Representative on Child Welfare.
Thank you all for taking the time to meet with us this morning. We will begin with opening remarks from the deputy minister, Mr. Tremblay.
Jean-François Tremblay, Deputy Minister, Indigenous Services Canada: Thank you. It’s an honour to appear before you committee during this pre-study of Bill C-92.
As you know, the over-representation of First Nations, Inuit and Metis children in the child and family services system has been described as a humanitarian crisis. According to the 2016 Census data, Indigenous children represent 7.7 per cent of all children under the age of 15. However, they represent 52.2 per cent of children in care in private homes.
The current approach of Indigenous child and family services means that Indigenous children are too often separated from their families, communities, language and culture. Furthermore, the placement of Indigenous children into care is sometimes linked to poverty, intergenerational trauma or practices that don’t always take Indigenous cultural perspectives into account.
In this context, the former Minister of Indigenous Services held an emergency meeting in January 2018 with Indigenous partners and her counterparts in the provinces and territories in order to discuss the situation.
At this meeting, the minister committed to six points of action to reduce the number of Indigenous children in care, including supporting communities to exercise jurisdictions over child and family services, and exploring the potential of co-developed federal child welfare legislation.
Before going into more detail about what the legislation proposes, I want to take a moment to emphasize that the bill we have before us today is the product of a broad and diverse engagement at all levels. Throughout the summer and fall 2018, over 65 engagement sessions were held with approximately 2,000 participants, including First Nations, Metis, Inuit, the provinces and the territories.
The recommendations we received on the context of the draft were carefully considered and integrated when possible. They helped inform the final version of the bill that was introduced in the House of Commons. Specifically, we heard from Indigenous partners that federal child and family services legislation needed to affirm the inherent rights of Indigenous people to exercise jurisdiction over child and family services and also establish national principles such as best interests of the child, cultural continuity and substantive equality to guide the interpretation and administration of the bill.
Bill C-92 is meant to enable a system shift from apprehension to prevention, with a priority given to services that promote preventive care and support families.
What does the bill aim to do? Let me explain. First, the bill clearly indicates that no Indigenous child should be apprehended solely on the basis and as a result of his or her socio-economic conditions or the state of health of the child’s parents or caregiver. The bill seeks to keep families together through the prevention and immediate apprehension of a newborn child through a range of prenatal services and preventive care to support families at risk as long as the child remains safe. It also seeks to ensure that when apprehension is deemed in the best interests of the Indigenous child, priority is given to placement with the child’s own family or community, and with or near the child’s siblings.
An important aspect of the bill is that it would be flexible. It would not be a one-size-fits-all approach. The proposed pathways in this bill are meant to be tools for Indigenous groups and communities to transition to exercising jurisdiction over child and family services at a pace that works best for them. For Indigenous groups and communities who choose to do so, the exercise of jurisdiction could result in their child and family services law prevailing over federal, provincial and territorial laws.
If the bill passes, it will affirm what Indigenous people have been demanding for a long time. They want the affirmation of their inherent right to decide what’s best for their children, families and communities.
The Government of Canada will continue to engage with Indigenous partners, provinces and territories during the transition and implementation phases. The implementation phase of the proposed bill will be crucial to helping ensure a smooth transition. We do not want to dictate the way it’s going to be done.
Indigenous, provincial and territorial partners will be critical in helping shape approaches that best address their diverse needs and expectations. Over the coming months, Indigenous Services Canada will be exploring the creation of distinctions-based transition governance structures that would have representation from Indigenous partners, provinces and territories. The governance structure could, for example, examine issues of capacity and funding so that the bill could have the impact it needs.
Indigenous Services Canada also intends to keep working with partners to assess long-term needs and funding gaps. As the Minister of Indigenous Services said in the other place, “Time is of the essence.” We have an opportunity before us to make an historic break from the past and focus on the safety and well-being of Indigenous children, youth and their families.
Thank you for your time. I am pleased, along with my colleagues, to answer your questions.
Cynthia Wesley-Esquimaux, Formerly the Minister’s Special Representative on Child Welfare, as an individual: Good morning, and thank you for the opportunity to come and speak to you.
As you have heard from the previous speaker, there are a lot of conversations that need to happen around this. I had the opportunity in 2016 to travel quite literally from coast to coast to coast to have conversations at the community level, the provincial level and sometimes at the federal level with different people who were obviously working in the field of child and family care. Based on what I heard across the country, I basically came up with some of those recommendations, but the conversation for me was about four outcomes. Certainly the jurisdiction and authority should be restored to First Nation communities so they have an opportunity to address the needs of their children directly.
Regarding the whole question of how funding was allocated to them, I heard a lot of different stories about how the money would come down and they don’t get their hands on it at the community level, so they have no capacity to do the preventive work they would like to do. They would like to see that change so it’s more flexible, and maybe see some block funding so they have the opportunity to start programming directly at the ground. It was a very important conversation.
The other one was the fact that the standards applied to them across the board are not reflective of the needs of the community and the families and where they are living.
When I was up in Old Crow and in Natuashish and Sheshatshiu, the standards that are applied there are not fitting for the community. They don’t have big houses. They don’t have five bedrooms. They don’t have a lot of capacity.
In fact, when I was in Natuashish, one of the teachers, her brother had one weekend where he was drinking. They took his two daughters away. She said, “I will take them.” She doesn’t drink, she has a home — all of the right things — and they said no. They lost those children for about five weeks. She said when they finally got them back, the children were only 7 and 9. They made her empty out her house so she could create two separate bedrooms and later learned that children can stay in the same room until they are 12 years old, and these were two little girls. The standards applied were totally inappropriate for the territory in which she was.
The other important thing is the whole question of provincial relationships and how the province has so much jurisdiction and authority over what happens with child welfare that it creates a real problem at the ground. What I heard a lot of was the significance of family community. I had young people say to me, “You took me from my mother. I have no family, no community, no language, no culture, nothing. Why didn’t you just help my mother?”
It constantly came back to that conversation at the bottom where there is a generational impact. I am still dealing with people who are having their children taken away from them right at the hospital because they were at one point a ward, and now the assumption is that they are not going to be a fit parent.
I had one young woman say to me, “If they took me away from my mother because my mother was an unfit parent and put me in care, shouldn’t I be a better parent?” rather than being treated as if they were a lesser parent. That is a real concern for a lot of people.
There is the question of addressing the relationship between social workers and the training they get, whether in the academic institutions or on the ground — social workers lying in wait. When I was in Natuashish, they said they wait with their lights going and the truck going, just waiting for somebody to make a wrong move so they can take their kids. There is this sense of terror. One woman was saying, “My daughter is pregnant, running from room to room. She is scared to have this child because she knows they are waiting to take this child away.” And they get sent down to Newfoundland from that community. They have lost something like 65 of their children; so they’re not doing well in the community because of those losses.
The social workers put these kids on — sometimes they are given medications that the parents have no control over. They get their kids back, and they say, “That’s not my son.” This is a different person they have sent back because of the antidepressants that they were put on that nobody gave them permission to use. That’s a very difficult piece as well.
There needs to be a “listening” to what the family and community want. We know that environment is everything. We are creating in Canada an environment in these communities that perpetuates the problems that these communities are suffering from. By constantly being wary of any outside supports or any kind of care, not being able to choose social workers that come into their communities, not being able to monitor what happens to their children after they are taken away from them, not knowing if they are ever going to have an opportunity to see those children again in their homes and families creates this feeling of great loss.
When we ask why they are using alcohol or substances to mitigate that pain, we should not be asking that. We should be saying, “How do we actually address the needs that these communities have?”
The other important thing was the conversation around youth. I had an opportunity to speak to a lot of youth across the country. They have some strong opinions about this whole process and what happens to them. I don’t think we are listening to what they have to say because taking those kids away, they are the ones that are feeding our jails with the social services needs that are coming out of this, and we are not listening to what they have to say, inside and outside the system.
Some of the things they said were that they don’t have any idea, in many instances, why they were taken. Nobody is telling them the reason we have taken you from your home is this. This one little eight-year-old kid who is living in a group home and has been there since he was five, just cried and said, “Why did they do this? I don’t understand.”
We are not listening to what they have to say. He needs his dad. There were children in these communities as young as three years old going to group homes, which is totally inappropriate. For any of you who have grandchildren or children that young, to put a three-year-old in a group home is absolutely ridiculous.
So the transitioning piece on the other end is really important to young people as well. We are not meeting the needs there either. They are given their $1,200 when they turn 18 or 20 years old and are sent out to the street to get a life, and they are not prepared. A lot of the young people said the work they are doing is not effective and that there is not enough training for the people who are taking them into care to accommodate their needs into the future. And they are not getting parental care. They are getting a place to sleep maybe, and then they are being sent out without any knowledge. They don’t get an opportunity to express their own emotions. They can’t show anger or sadness because they will get moved if they are not cooperative or not being the nice kids that people want to take care of.
When they come out of that system, they don’t feel very nice. They don’t feel like the conversations that they needed to happen have happened.
I talked to a lot of grandparents, and I felt that we have a really strong problem with ageism. Grandparents in many of these Indigenous communities are pretty spry, and they are willing to take their grandchildren. They were told by social workers, “You are too old; you can’t have these kids.” One guy said, “Look at me; do I look that old?” And yet he said he had had his grandchildren taken away from him.
I talked to a grandmother who had three of her grandchildren, and she was getting $200 a month per child. She is on a fixed income. That is not really enough to accommodate the needs of children — food, clothing, books and all the things they need.
She went to the child care agency, and they said, “Well, if you sign them over, you could get $1,200 a month per child,” which makes a lot of sense. But they said, “If you sign them over, there is no guarantee that you will qualify to get these kids back because when you were 16, even though you are now 66, you had an infraction, and they will hold that against you; so there is a good chance you won’t get these kids anyway.”
Now what kind of choice is that to give a grandmother? She said I told them, “To hell with it; I will keep the kids. For $200, I want my kids to stay in the community and family.”
There were a lot of stories like that right across the board. We need to hear these stories at the ground.
They don’t get the monies. If the kids leave the community, somebody who is taking those kids as foster kids, they get paid $1,200 no matter who they are — Filipino, White — but if they try to keep them in the community and give them to kin, they don’t get that kind of money. And they need to because there are no resources.
I talked to a woman who said that our people won’t take these babies because a box of Pampers is $85, and all we get is $85 a week. That’s it. Done. How are they supposed to feed this child and buy the formula? Of course, in remote communities, that is nearly impossible to do because of the cost of food. We are not doing a great job there.
We can make decisions about jurisdiction and authority and restoration, but if we don’t put the dollars in the community — I’m not saying it should go necessarily to the agencies — but in communities where the families can put food in the fridge, we are going to continue to have these problems.
One of the communities in Saskatchewan said to me that they have the social workers come in. When the child is coming home for a visit for the weekend, the social workers arrive first, and they go right to the fridge and open the fridge door. If there is no food or what they deem as adequate food in the fridge, the parents are denied the right to see those children. I said, “What do you do?” They said, “As a community, we try to collect enough money that we can put food in the fridge so when the social worker comes to look in the fridge, the kids will have the opportunity to visit with their parents.” So again, that’s not right.
Provincial relations: I had an opportunity to speak to many of the ministries. I stopped in those different places. I had a conversation about that with the communities as well, and they are very clear who gets what and who has the power. The province has the power. In Saskatchewan, I was told by the ministry and some of the agencies, “Well, we don’t have to give them more money because they give money back.” When I asked the communities about that, they said, “Well, we give money back because the money comes down for very specific things. If we don’t need it for that specific thing, we can’t move it over to use it where we need it. We have to send it back. So it looks like we don’t want the money, but we do.” The rigidity around how these communities actually access funding is important, and we have to look at that.
Finally, there are the standards. We have to deal with those standards. We need a national standard that is strong and then drops down provincially because every province is very different. The families, the culture, the languages in those communities are very different. We need to ensure that we have the opportunity to honour that.
In conclusion, we get that money is important. Many of the communities said to me, “Look what we have been able to do with very little. Think about how well we would do if we had enough to do more.”
Of all the places I went to, only one said, “Give the money to the agencies.” They said, “Give the money to the communities, because that’s where we need to do the community prevention work. We need to help our families be stronger. We want to be able to give the money to the agencies ourselves. We want to determine how that money is expended.”
Everybody agreed that there is going to always be protection need; somewhere around 15 to 20 per cent of those dollars need to go to the agencies to do that. But they want the agencies to adjust their approach so it’s not about apprehension; it’s about how much money these kids and their families get to keep, and how much work you are doing at the ground level with those families to ensure those kids have a safe place to live. It’s also about having the resources to fix the doors, to put food in the fridge and to buy a proper mattress to ensure these kids have a safe environment to live in.
There is a lot of work to do. I don’t see that, necessarily, creating more agencies — in fact, kids said to me, “We don’t want more agencies or social workers. We want our families, culture and languages. That’s what we want.” If you are going to do anything across this country to ensure we have safety, that’s where you need to put your attention. Thank you.
The Chair: Thank you.
We will now open the floor to questions from senators.
Senator LaBoucane-Benson: Thank you. Thinking about what Cynthia shared with us, one of the pieces of this legislation I’ve been thinking a lot about is the best interests of the Indigenous child and how that is formulated. The primary consideration is the child’s physical, emotional, psychological safety, security and well-being, and then factors after that. That could possibly lead to the status quo, because although in another part of the legislation children will not be apprehended because of poverty, the first piece is about physical, emotional and psychological safety, which can be very subjective at times.
I wonder if it wouldn’t be worthwhile to have two pieces in the primary consideration: the well-being and safety, but also the child’s connection to family, culture and community. That wouldn’t preclude children from being apprehended from dangerous situations, but it would ensure that a child’s safety as well as their connection is in the very first case plan or iteration of this.
In my province, knowing how judges make decisions, and even how day-to-day field staff make decisions, I worry that when we leave that as the only primary consideration, everything else seems secondary, and the status quo could be maintained.
The reality is that not every First Nation will be able to reclaim their jurisdiction the day after this bill passes. This is a process. For some nations, it will be five years. Their children will continue to be apprehended and placed in communities not of their own, because there is too much poverty to place children there. They probably won’t be placed in kinship care because it isn’t nearly as well organized. Clearly the foster parents have the corner on all of the money and they have the lobby. They are the strongest organization for sure. They are probably going to be placed in foster care.
Is there any way we can consider having a two-pronged primary consideration that would really call to mind for every social worker that family connection, culture and community have to be part of the primary consideration? That would lead to better kinship care placements.
Ms. Wesley-Esquimaux: I really think you need to put that first, because you are right: It does look secondary.
We talked about a two-pronged approach for funding so that 20 per cent goes for protection and the rest goes to the community. You are going to continue to have poverty at the community level and people suffering if you keep taking their kids. I don’t care how good the foster parents are. I was raised by two residential school survivors. I had to put up with the binge-drinking and sexual violence, all of that, and I’m sitting before you with a doctorate. People can survive those kinds of things. It’s not that we want every kid to suffer.
But you are right that it’s subjective. Maybe people would have looked at my family and said, “We have to take that kid out of there.” It didn’t happen, thankfully, and that’s probably because we were living in a city as opposed to living on the reserve. If my mother had stayed on the reserve, I’m sure that would have been the result — or a residential school. I’m old enough for that to still have happened.
You need to put culture, family and resources to the family first. If you are going to pay the foster parents $1,200 a day, or whatever you pay, them to look after kids, you are going to have to put that resource into the family.
Every community has people who provide safe houses. You are just not aware of it because you are looking at it from this broad range. So first, try to keep those kids in their communities and with their families.
Mr. Tremblay: It is a debate we had during all the engagement. We tried as much as possible to end up with something that would balance all of these interests together.
I would ask Isa to tell how you how we came to this and how we think, at the end, that we actually protect this aspect.
Isa Gros-Louis, Director General, Child and Family Services Reform, Indigenous Services Canada: During the engagement session, we heard the concerns you are raising of trying to balance all of this in the legislation. I think that’s why you find in the legislation the primary considerations at subclause 10(2), which you alluded to and which makes reference to physical, emotional and psychological safety.
Then, below, when considering those primary factors, we have factors listed that must be taken into consideration, including culture and family relationships. Those are by no means exhaustive, so First Nations or Indigenous communities developing their legislation can always build on those and add to them. This is a framework to guide provinces and territories until such time as Indigenous communities develop their own legislation. Then they can decide the most important criteria for them and add the desired emphasis to reflect in their own legislation.
Senator LaBoucane-Benson: I appreciate that. I know this is not an easy piece of this legislation, but once a nation takes jurisdiction, they are going to place children in their own community. The primary and what look like secondary factors are going to change because of what they see child and family services looks like.
This is for the provinces going forward. I fear this will maintain the status quo in many provinces, because they will say, “We already do this. We always consider the primary factor first and secondary factors after. But the primary factor is the very first one, and we need to apprehend.”
If this is an instruction to provinces until the nations take jurisdiction, can we add to the primary factor the culture, family and community connection so that they are part of the primary piece for provincial workers?
In Alberta, for example, some nations are chomping at the bit. They were ready five years ago. But I also know some nations will take a lot longer to get to the point of having their own laws established. In the meantime, their children are still going to be an apprehended based on this “best interests of the child” version.
Senator Pate: Thank you all for presenting. My question focuses on funding. I have a question for Mr. Tremblay and Ms. Wesley-Esquimaux.
Mr. Tremblay, Bill C-92 contains no guaranteed funding to enable First Nations jurisdiction. Basically, there is a recognition of a call for funding in the non-binding preamble. First Nations have spent over a decade litigating this issue against Canada to get equitable child and family services. The case is still ongoing, as I’m sure you are aware.
Will your department accept changes to the text of the bill to provide a guarantee of funding that complies with a substantive equality and needs-based approach set out in the repeated orders of the Canadian Human Rights Tribunal? That’s my first question
And Dr. Wesley-Esquimaux, thank you for all of your work. You mentioned looking at a proposal that agencies should get 15 to 20 per cent of the funding, but the Canadian Human Rights Tribunal has ordered double that amount of funding go to agencies since your 2016 review. I’m curious as to why you would propose reducing it back to 20 per cent, when they’ve already ordered double that.
Ms. Wesley-Esquimaux: I think it needs to be needs-based. Whatever that might be right now, that’s fine. Actually, I was thinking more about the percentage of how much protection is required, not so much how much money. When you’re taking kids out of their communities, how much of it is actually hardcore as in “We need to take this child out because this child’s life is in danger,” as opposed to “This family is struggling with poverty and addictions issues”? The balance there is what I was actually looking at, not the money.
I think money needs to be given that accommodates the needs of those communities and the needs of those agencies to do the best job possible.
Senator Pate: So you would be in agreement with the tribunal?
Ms. Wesley-Esquimaux: Absolutely, yes.
Senator Pate: Mr. Tremblay?
Mr. Tremblay: The legislation is not about money. It’s about affirming the jurisdiction and also some principles and standards across the country.
It doesn’t mean that money is not an issue and should not be discussed. It means that we have co-developed legislation with First Nations and Metis organizations. We try to use legislation as the best tool to achieve what legislation is good at achieving. In this case, it is recognition of jurisdiction, which was never done before, as well as national standards, which we think is actually very good progress.
The money was discussed, of course, during those discussions and will continue to be discussed. The First Nations system that you spoke about, you’re right, the tribunal told us to fund actuals. So we are now at a budget that is over $1.1 billion. It was probably $700,000 a few years ago. So we almost doubled the budget over the last few years, and it will continue to grow.
This money, as was mentioned, goes through the current system. So we need to work with First Nations, Inuit and Metis on which kind of system they want and how they want to change that system. There would be a discussion on that change that will include money, but we’re not using the legislation as budget legislation, if you will. It is actually legislation focusing on what came out as a consensus, which was to address the issue that needed to be addressed for years, the issue of jurisdiction, and also making sure that the rights of the children were taken into account.
Joanne Wilkinson, Assistant Deputy Minister, Child and Family Services Reform, Indigenous Services Canada: I’ll add one thing. As the deputy mentioned in his opening remarks, part of what we’re looking at in terms of implementation and transition, and as Senator LaBoucane-Benson pointed out, is that it will be a longer transition in some places than others.
Part of what we’re looking at with all of our partners now is what that transition governance looks like, whether it’s a steering committee, working groups, those types of structures, to make sure those very important issues of funding, for example, can be addressed in a holistic way and in a distinctions-based way.
Senator Pate: Thank you very much for that.
As Dr. Wesley-Esquimaux has pointed out, the need for funding is primary. It will not be quite an empty gesture, but if you have the legislation in place, the jurisdiction, and have insufficient resources to actually implement it, then what guarantee is there for communities that in fact those resources will flow if you haven’t accommodated up front for it in the legislation?
Mr. Tremblay: There is already an obligation for the federal government to fund the First Nations system at this stage. That’s what we’re doing for both intervention as well as for prevention now. We’re doing it through agencies, as was mentioned. This commitment of continuing funding for the system is still there. The obligation and the decision of the tribunal are still there, so we will continue to do that. That’s why the budget is growing.
This bill is more to shape a discussion that will change a framework in the system and have a discussion between the partners, which is also provinces, because as you know, it’s First Nations, Inuit and Metis and it’s on and off reserve. So it’s all the partners sitting at the table and having a discussion, place by place, and asking, “How do we better organize this system?”
Will there be a discussion on the resources? Of course there will be a discussion. However, at this stage, we didn’t feel it was a necessarily part of this legislation. It’s a discussion that will continue, but I think if you look at the budget of my department in terms of First Nations Child and Family Services, it has increased quite significantly and will likely continue for the next few years.
Senator Pate: It just seems unfortunate to potentially invite another tribunal ruling rather than address it up front.
Mr. Tremblay: I don’t know. As we said, we’re are paying actuals for both prevention and for interventions. In addition, the tribunal signalled that we need to reform the system and that’s what this legislation is opening up. It’s a door to reform the system.
As was mentioned before, there’s no one-size-fits-all system. Some First Nations are quite happy and may decide to work with the agency they have at the moment. Some may decide they will work with the provincial system. Some may decide they will take only prevention. I don’t know that, and I should not impose it. We need to have those discussions to say exactly what will happen.
This legislation is not fixing everything. This legislation is more a starting point. It’s opening a door that was not open before to make sure that we have a discussion where First Nations, Inuit and Metis have a word to say because they have a jurisdiction and can affirm that jurisdiction.
Of course, money is part of this equation, but it’s not the only issue. Apprehension costs a lot of money at the moment, and it’s not necessarily producing the results.
Senator McPhedran: Thank you, everybody, for being here with us today.
My question is to you, Ms. Wesley-Esquimaux. Can you help us better understand — at least help me understand — the current situation with your mandate and this proposed legislation?
Ms. Wesley-Esquimaux: I don’t have a mandate at this moment, so I’m coming in as a former Minister’s Special Representative to have a conversation about my conversations across Canada. But, of course, I’m always very interested in what’s going on.
I live in Georgina Island First Nation, and we have our own child welfare agency. It’s brand new, and it’s practising Indigenous social work. Actually, our social worker has won an award.
We don’t let kids go out of our community. When we have a situation in our community, we go and ask the family what they need. If the mother is drinking, we ask her what’s happening in her life, and we help her so that the kids stay in the community. That’s the approach. That’s what we’re looking for here, and that’s what he’s saying.
This opens the door. The resources are flowing out there. Some of those provinces shared how many resources they get on an annual basis, and they’re holding pretty tight to it. I understand that, but if we loosen the grips and ensure the families themselves get the resources at the ground level, I know there will be a difference. You will see a happier community. We don’t lose our kids because we take a different approach.
Senator McCallum: Thank you for your presentations. It’s good to see you this morning.
I have a lot of concern about this bill. I’m from Manitoba. The previous minister, Jane Philpott, had a memorandum of understanding with the Assembly of Manitoba Chiefs. When they were given the resources, they made their own Bringing our Children Home Act, and the then minister announced it was going to be a pan-Canadian model and that she had an agreement with AFN.
The concern in Manitoba is the strong input from the province. We have the highest rate of children across Canada. She called it a humanitarian crisis. Cindy Blackstock has said, “If this proposed legislation affirms First Nations jurisdiction, respects diversity among First Nations,” — yet there’s a pan-Canadian model; the two don’t meet — “protects the safety and well-being of First Nations children and families,” which it doesn’t, “and embeds a statutory funding base, then it has a foundation for success.”
Do you agree with that statement or not? If you do, I honestly want some kind of affirmation that the status quo is not going to continue to exist in Manitoba and that somehow you need to work with the Manitoba chiefs to iron this out.
Mr. Tremblay: The legislation is not imposing a model across Canada. The legislation is saying that you can go and take your jurisdiction. So AMC can go ahead and continue to work on their legislation. They will get our support and we will be partners at the table. I hope others will also be partners.
This is not legislation where we’re trying to say this is the system in which you’re going to operate over the next years. There are some amendments there and national standards that were mentioned to protect the kids against what’s going on at the moment, including in your province, sometimes.
But part of this legislation also says that you have jurisdiction and you can take it. We encourage you to go with coordination agreements with other levels of jurisdiction, but if the other levels of jurisdiction are not necessarily operating in good faith, you can actually self-declare your legislation.
It’s not an easy process, but it was probably harder before this legislation. This legislation is opening the way to do that.
If you look at recent Canadian history when we tried to legislate on First Nation issues, we tried to legislate a one-size-fits-all approach and it didn’t work too well most of the time. But there were times when what we did was legislation that we called opting in and opting out, where First Nations can actually decide whether they will take it or not. That’s what we did, for example, in the First Nations Lands Management Act.
This piece of legislation is a bit like that one. It’s basically saying that you have jurisdiction. It’s your inherent right under section 35, and we use section 91(24) of the Constitution to confirm that through legislation, but you go at your pace. You don’t have an obligation to take it, but you have the capacity.
I know there’s tension with the AMC, but I think it can be resolved because this is not their legislation versus ours. It’s actually their legislation in the end.
Ms. Wesley-Esquimaux: I agree. I heard from a lot of people across the country, chiefs included, and I met with many of the elders as well. There has to be recognition that there’s a lot of diversity across the country. Some of those communities were absolutely ready. They had been working on it for 25 years and were ready to go, and I think there was recognition that those people will be able to be first out of the gate, or however you want to say it.
I agree that if they’re going to do the legislation and you’re going to restore jurisdictional authority, you better ensure that the dollars follow and they don’t get stuck at the provincial level. That’s probably the biggest issue I heard right across the country, that the province is holding tight to the millions of dollars they get on an annual basis. When I was up in the Yukon, they said they hired nine social workers. That money was supposed to go directly to the communities. They said, “We’re taking care of it,” and showed me their new models from Australia. I asked if it had occurred to them that the Gwich’in people have their own models, and I said, “Why don’t you ask them about their way?” So, you’re absolutely correct that we have a lot of work to do.
In many instances, the political levels are also in the way with our own people. It’s not necessarily just the Province of Manitoba or the Province of Saskatchewan. There are also political agencies and organizations that want a piece of this.
My feeling is you had better go directly to the community because that’s where those kids live. That’s where the grandmas, families, culture and language and everything else is, and we have to go there to make sure they have the resources to get well, get healthy and raise those kids themselves.
Senator McCallum: Thank you.
Senator Coyle: Thank you all for your presentations this morning. We’re just starting to really understand what this legislation is and what it isn’t. I appreciate that, as has been said, it’s the opening of a door that has been asked to be open for quite some time and is largely focused on jurisdiction.
One of the things that I’m learning from my colleague and from what you’re saying is the very different capacities and possibly even interests in taking on this responsibility in different communities and different jurisdictions.
As the door opens, what is happening to help those communities that do have the desire to build their capacity and develop their own models, as you have said, so that they are in a position, if we look five years out from now, that the gap isn’t so large between those who were ready five years ago and those who may take some time to get there?
Ms. Wesley-Esquimaux: I had a lot of conversations about this. One of the things I said was the strength of the minister’s argument for wherever we go is the strength of your own argument. You have work to do at the community level. You’re right that a lot of them were not ready and had not done the costing or the asset mapping in their own communities to understand who they have in their communities to actually call upon. One of the recommendations from me was that they need to speak to the local colleges and universities and people that can do this work with them without a huge cost or maybe no cost at all so they can start to lay the foundation for the capacity they need to build.
They need to start to connect with each other. Many of the communities were working together kind of unofficially to help each other.
As a country, we make a lot of errors. There was one situation where there was a very strong agency and a very weak agency. Rather than helping that weak agency come up, they took the money from the strong agency and gave it to the weak agency. I thought, “Well, that was smart; now you have two weak agencies.”
We don’t really think about the implications of our actions, but the communities themselves are acutely aware. We have to get over this idea that the communities themselves don’t have capacity and that there are not intelligent people living there who can do this work. There are, but in many ways their hands are tied because they don’t have the authority and jurisdiction and the resources to accommodate what they want to do.
So go to the communities. We need to spend more time there than we do looking afar and thinking that we have the answers to what their dilemmas are. We don’t; they do. I heard it strongly across the country: Have faith. They have the ability.
Senator Coyle: They may need some support to get there.
Ms. Wesley-Esquimaux: They may need support and they should accept it.
Mr. Tremblay: I think they need support, you’re right. That would be a discussion in the transition and that would be the opportunity to have discussions about this. How do we support communities and nations, and how do we help them to actually take jurisdiction? We need to see what the supply and demand is in that context.
In the meantime, we have around $100 million per year that we use for projects in child family services that are related to initiatives around jurisdiction. There is some funding that we’re using.
In Minister Bennett’s department, there is a negotiation table on self-government, for example. In a lot of those tables, more and more, actually, given the fact we give a lot of attention to this file, many First Nations and Indigenous groups come to the table and want to talk about CFS. So they have a process there.
We also have a tripartite table that we try to nurture at the provincial and regional level to support the communities.
Is it enough? We’ll see. But, yes, there is an intention to support communities and nations at their pace, as we mentioned before. The question is how best to do it, to be honest.
As was said, some of them are already pushing and doing some work, and in some cases we already support them financially.
Senator Christmas: Thank you very much for being here. This day has been a long time coming, so it’s great to have this bill in front of us.
Perhaps I wasn’t looking in the right place, but I was searching in the bill for the words “distinctions-based approach.” I didn’t find it, but Mr. Tremblay, you mentioned in your remarks that your department will be exploring the creation of distinctions-based transition governance structures.
Can you describe how the bill is distinctions-based both in its development and its implementation? Can you also tell us how the bill will address unique challenges that urban-based Indigenous families face?
Mr. Tremblay: The bill doesn’t say “distinctions-based.” I think we say First Nations, Inuit and Metis. We name them, which I think is a more elegant way of saying that.
It would be distinctions-based but not just First Nations, Inuit and Metis, because First Nations are not all the same. They are also different among themselves. They have different needs and different ambitions.
It will be distinctions-based because, as I said, this is legislation that even if it provides some national standards and a national framework, it is based on the fact it is a more bottom-up approach. It’s the communities and nations that will understand what they want, and they will come to that table and talk with other jurisdictions on this. That’s the way we see it as distinctions-based.
We expect in the process when we co-develop, we work with the three national Indigenous associations, as you know. They were at the launch when the minister tabled the legislation, and the three of them talked about a good co-development process. It shows we’ve been working with the three groups.
We also had opportunities where the three groups worked together with us. It was not just separate First Nation, Inuit and Metis. There were discussions among themselves.
When you talk about children and families, to be honest, there were a lot of pointed comments between the different groups. It’s more in the way they want to address it that it will be different. I think that’s where we’re going now. Now that we have opened that door, it’s for them to design the way they want this to happen. That’s where we’re going to see the distinction happening.
We also had discussions with them on how the transition is going to be distinctions-based, because it is different. We fund the federal fund, as you know, the First Nation services, and other services are funded by provinces. In some cases, we go through the provinces. So there are different situations across the country that will need to be taken into account.
The Inuit are under land claims agreements, and they have, in many aspects, a government or organization in place that they manage already. So it is a different complexity.
I will not reduce it just to a distinction of First Nations, Inuit and Metis. It will also be different across the country: North versus South versus ambitions and what they want. That’s the reach because the culture is so diverse.
Senator Christmas: I’m grateful that a distinctions-based approach goes right down to the tribal and community levels, but in situations where urban areas have become a blending pot of so many different Indigenous people, how do you apply a distinction-based approach in an urban area?
Mr. Tremblay: It will be an interesting puzzle, but it’s not without precedent. Francophones, for example, have their own schools in other provinces where they don’t necessarily have the majority of the population. You can imagine some services offered to Indigenous people in urban areas who are Cree. If they are outside of their community, the services could be different.
They may also, through their legislation, establish standards that would apply to anyone dealing with kids who are part of their community. Because it’s federal legislation, they would have the capacity to do that.
For example, if you are a Cree community in northern Quebec and your families are down south, and you have legislation or law saying that for Cree kids this is how you will do that or that you want this to be done, there will be a capacity to say that people have to respect that legislation. At the moment, they have to respect the national standard, but if the standard is now a law from in a community or nation, it will have to be respected.
Senator Christmas: For example, in Ottawa we have a large Inuit community. Are you saying that you’re still able to apply a distinctions-based approach in a large urban area where a lot of Inuit live?
Mr. Tremblay: If organizations together, or one of them, decided that for their citizens, wherever they are, we have to respect that foster care, adoption, should be with families and the culture should be respected, and all those conditions are there, that will have to be respected. That’s why it’s important for jurisdictions to work together, to be honest.
There is also a limit to this, which is your capacity to enforce sometimes, but the possibility is there, for sure.
Senator Christmas: Thank you.
Senator Tannas: That was going to be my question, but I have one more for Dr. Wesley-Esquimaux.
Do you envision that at the community level the organization would be a department or a subsidiary of chief and council, or do you see more something that’s stand-alone? Non-Indigenous people might think of a school board or some other body. How do you see that organizing itself?
Ms. Wesley-Esquimaux: To be honest, I saw it organizing itself in all of those ways, depending on the communities themselves. Some, the chief and council or representative of the chief and council, attended and said, “We’re going to work with our families to do this.” Others, they already have stand-alone situations set up. Some of them have safe housing that is run and organized by people in the community and that’s all they do.
There are a lot of different approaches, as we’ve already said this morning. Many of them said, “We have urban dwellers, and as far as we’re concerned, no matter where they are, they are our members. Even if they’re two provinces over, we’re going to deal with their needs. So we will expand this out nationally. It’s not going to be just local work that we do.”
He’s right. There are going to be many different approaches, but I think you have to listen hard to what the communities themselves and the people who represent children in those communities say. They know what they’re doing. They have been very successful in many instances.
It’s our interference that creates the problems, when we come in and think we have all the answers, or the social workers tell people what to do. It’s quite often very much against what the community itself would do if given the opportunity to make those decisions on their own.
Senator Tannas: Can you see good examples of communities that are able to do that consulting within themselves? We’re all mindful that in most cases, more than half of the community doesn’t live in the community; they live away from the community. How does that work?
Ms. Wesley-Esquimaux: I saw a lot of very good examples, some of which I challenged. Some I said, “You have a great team, but they look like they’re close to retirement. Then what are you going to do? Are you succession planning this? Do you understand this is something that needs to continue?”
They don’t necessarily have the resources to do the succession planning that would make sense. Again, they’re held back. I think when they ask for help, we need to give them the help they ask for, not what we think they need. That’s going to make all the difference when it comes down to what happens with this.
I can tell you there’s a generation of children who are now young adults and adults who are saying, “Enough.” These are the kids who are standing up and saying, “We know exactly what needs to happen, because we’ve been through the system. We are the system. We were raised there.”
These are the kids you guys should be speaking to because they will tell you unequivocally what happens, and what the foster parents need, and what they need for those transitions. Some of them are exceptionally healthy given the stuff that they went through, and they are going to be a force to be reckoned with.
We have a lot of work to do. They will help you if you let them. The communities that are struggling, we need to help them. We have had a lot of conversations with them about the kinds of steps that they need to take, and I think we need to trust that process and give them what they ask for, not what we think they need.
Senator Tannas: Thank you.
Senator LaBoucane-Benson: I come from a court worker background. We have many instances of grandparents, aunts and uncles who want access to their kids who are under PGO, and there’s no real mechanism for that to happen.
This is an aspirational piece of legislation, but the reality is we have thousands of Indigenous kids who are under permanent guardianship and need access. Do you see an opportunity for a legal access order so that a grandparent can go to a court worker — there are court workers across this country — and say, “I want a legal access order to see my grandchild”? Do you think this legislation will provide that? If not, can we?
Ms. Gros-Louis: In this legislation, there are a couple of ways that can happen. I’m trying to find the section but I can’t. In here there’s a requirement for reassessment.
It is 16. This requirement will be started on a regular basis but can also be made at the demand of a family member to be returned to the family. It could be to one of the parents or to an extended family member.
We also have the possibility for a child’s parent or a caregiver to make an application and to have access to the child. There are a couple of possibilities in this legislation for members of the family to have access and care for the child.
Ms. Wesley-Esquimaux: If I can add to that, I spoke to a lot of young people. There are also young people in care who said, “We need the opportunity to make a decision in our own lives. Sometimes we don’t want to see a parent or we don’t want to be returned, and nobody listens to us.” There are two sides to that. There are two sides to virtually everything we’re talking about, so you need to keep that in mind.
Senator LaBoucane-Benson: Under the equality section, it does say that the child has a voice. I can’t remember what the wording is, so I agree with you, totally.
The Chair: Thank you very much. We are out of time. I would like to thank our panel members for appearing. Thank you very much for your presentations, and thank you, senators, for the questions.
With regard to our second panel, we had planned on having two witnesses this morning. One of the flights was cancelled, so we are not sure if the other person is coming. However, we are very pleased that we have before us, from the First Nations Child and Family Caring Society of Canada, Dr. Cindy Blackstock, Executive Director, as well as Spirit Bear.
Cindy Blackstock, Executive Director, First Nations Child and Family Caring Society of Canada: Very good morning to you and many thanks for this great opportunity for Spirit Bear and me to be here. Spirit Bear represents all of the children — the First Nations children, the Metis children, Inuit children and also the non-Indigenous children who are growing up right now, wanting to see a country where no child is left behind, where every child is honoured for being distinct, for being who they are, and for a generation of children who never have to fight to be treated equally by the Canadian government.
I want to recognize the unceded Algonquin territory and to call to your attention, senators, that we have provided some materials in advance. One is a copy of the Spirit Bear Plan, which is to address all inequalities in First Nations children’s services. The second is a black-line version, because we have identified some shortcomings in a briefing note that you have where we think there could be improvements to Bill C-92. The black-line version is our beginning of a suggestion of a solution.
I want to be clear that the Caring Society takes the view we are not here to be right. We are here to do right. So the wording in the black-line version can be improved. We certainly welcome that. In fact, we will be shortly providing the committee with improvements suggested by the Chiefs of Ontario and the Innu Nation. I apologize that we weren’t able to get the material to you before my presentation today, but they will be forthcoming within the next 24 hours.
Native American legal scholar Robert Williams says that at its core, colonialism embodies the “savage” and the “civilized” dichotomy, where colonial countries like Canada have deemed themselves the civilized and deemed First Nations peoples, Metis and Inuit peoples as savage. This has enabled those who deem themselves civilized to legitimize immoral and illegal actions towards our peoples for generations. This has led to the taking of lands, the leaking of resources and the taking of our children. Language has been used by colonial governments such as these steps were in the public interest, or they were in fact in the best interests of Indigenous peoples that we did these things. It is a danger of cloaking injustice in benevolence that is one of the characteristics of a savage and civilized dichotomy.
This extends to Canada’s relationship with First Nations’ children. Despite some positive examples and some improvements and many pronouncements over the last decades, it continues to manifest itself in the federal relationship with First Nations’ children.
I’m going to focus my comments on First Nations’ children because I expect you will have more able witnesses to speak about the Inuit and Metis example.
It manifests in the federal satisfaction with mediocrity for our kids. In public policy, where better is possible, it is heard in the use of government phrases like “first steps” or “don’t miss this window of opportunity” or “we are making progress” or “be patient,” while First Nations’ children face dramatic and profound inequalities in the provision of public services by the federal government.
There is never an answer about why First Nations’ children should be patient under some circumstances, and why their families should be patient under such circumstances. There is historical amnesia to the point that Canada has known about the inequalities for First Nations’ children for at least 112 years. So surely the notion of “first steps” and “we are making progress” should not be satisfactory to anyone in this country.
Substantive equality that takes full account of their unique histories, their circumstances, the historical disadvantage and the importance of their culture and their distinct rights as Indigenous children should be a floor for reconciliation. It is not actual reconciliation because we don’t frame that as the basic meeting of human rights as reconciliation for any other child in the country.
Bill C-92 is an important step in its aim. Over 20 years ago, I was among those who sat at the Joint National Policy Review for the Assembly of First Nations. At the time, I was a child protection worker, working with the Squamish First Nation in British Columbia. Our first recommendation out of that report, which was co-developed by the federal government, was the affirmation of First Nations jurisdiction, because I and others around that table firmly believed that putting decision-making back in the hands of communities was really important to do. But that call was distinctions-based and it was also for First Nations legislation.
We also included recommendations to deal with the funding issues, and as we see this come to fruition, I regret to say that I think there are significant deficiencies in Bill C-92, particularly as it will be played out on the ground for children. Some of you have seen the review by five leading Indigenous law professors for the Yellowhead Institute, which is an Indigenous think tank, on Bill C-92, where the highest grade they give this particular bill on five different dimensions is a C.
I teach university, and I’m telling you that would not be a very satisfactory grade for someone who wants to pursue a successful academic career. However, I don’t want that to dissuade us. I want you to do something unusual in this committee because business as usual has resulted in a circumstance for First Nations’ children that has resulted in prime ministerial apologies. I want you to have the courage to do the substantive amendments that are required.
I’m going to start off with a couple of notions. One is that I reject the false dichotomy that funding and jurisdiction are separate. Jurisdiction is essential as an inherent right of First Nations. Funding enables the expression of that inherent right. So for the federal government to suggest that the inherent right of affirming First Nations jurisdiction is somehow separate from funding is an invitation to a path that you should not go down.
We have seen in the bill, as Senator Pate pointed out in the first round of questioning, the preamble recognizes a call for funding. That is all it does. I have spent, along with the Assembly of First Nations, over 12 years in front of the Canadian Human Rights Tribunal trying to argue for equitable funding for First Nations children and the full and proper implementation of Jordan’s Principle. That litigation is still going on. The decision was made in January of 2016, and the tribunal substantiated the complaint and ordered Canada to immediately cease its discriminatory behaviour. Seven orders have followed.
In Bill C-92, the department invites First Nations to discuss funding in the collaboration agreements where you are supposed to reach an agreement on funding within a one-year period, and if you do not reach a funding agreement or a collaboration agreement where funding is discussed, then your law takes effect anyway. How are you possibly going to give effect to that law if you don’t have available funding?
We are not asking Canada to put a dollar figure in this bill. To do so would be ill-advised. We want Canada to enshrine the well-researched and considered principles of funding that the Canadian Human Rights Tribunal has deemed necessary after studying this question for nearly a decade.
Those principles are that there needs to be substantive equality. That means that it’s not just the same level of funding non-Indigenous children get. It’s additional funding. Because non-Indigenous children have not suffered residential schools, they have not suffered the profound discrimination in public services, and there will be more investment in order to achieve the same outcome. The needs of the children and families need to be considered. The best interests of the child, but framed within the United Nations Convention on the Rights of the Child General Comment on what that means for Indigenous children, needs to be considered. The child’s cultural needs need to be considered. We need to take account of the community’s unique circumstances, including things like remoteness or whether the child resides in an urban centre.
Those are things that Canada should be putting in the binding text. We have provided wording for that to provide more guarantees and assurances to First Nations families that this bill does not end up being a paper tiger.
On the issue of jurisdiction, we adopt the views of the Yellowhead Institute in this regard. We also want to point out for the committee a couple of other areas where we don’t have clarity. One is, which court is going to review this act? There is no language in this bill about whether it’s the provincial courts, the federal court, or what training will be provided to the judiciary. Many courts across Canada are just beginning to provide training for the judiciary, legal counsel and others who are representing First Nations, Inuit and Metis families. But this will add another particular layer, and the bill is absent about this, so I see some trouble about jurisdictions. The first question will be: Which court is actually going to hear conflicts arising from this bill? Given that vulnerable children’s well-being is at stake, we can’t waste time with that kind of lack of jurisdictional clarity, so I would really recommend that something be put in there.
There is also a lot of vagueness around what is an “Indigenous governing body.” When I read the first draft of the bill, I didn’t know what that was and how those were determined. Now, I appreciate that there needs to be some flexibility because in some First Nation communities there are their traditional governance systems, and in others there are elected band councils. In some places, there is a combination of those. I think there is an opportunity to work with First Nations to hone down specifically what these groups are, because I can see a lot of potential there for jurisdictional quagmires as groups argue over who has a legitimate say and who is the Indigenous body.
Because I want to give time to my colleagues and also respond to some of your questions, I want to move quickly to some of the practice considerations in this piece.
One of the things I found is that Canada has adopted a very narrow definition of child and family services. It doesn’t include post-majority care. Post-majority care for children who have been in care and are now young adults is part of most provincial statutes, but it’s absent in this particular piece. There is no reference to guardianship. There is no reference to adoption. How are we to forestall the tragedy of the Sixties Scoop if First Nations don’t have any kind of jurisdiction over adoption? That doesn’t make any sense.
The other piece that I want to draw to senators’ attention is that we, at the Caring Society, have gone to First Nations and help them reimagine a vision of a healthy child and family, because they had those visions but they were disrupted by colonialism. So we have something called the Touchstones of Hope where we invite community members to re-establish that. When they do, they come to really appreciate that their laws aren’t segmented the way Western laws are. There is no education act or child welfare act in most cases. It is a whole approach to children and families nested within community, across time and space, formed by ancestors and projecting forward to future generations. I’m not sure how Bill C-92 allows for that to happen.
One of the key areas where I think there are sufficient problems in the funding relates to this idea of vision. Although the bill includes recognition that children shouldn’t be removed for socio-economic circumstances, what the bill does not acknowledge is that is not new. That already exists in every provincial legislation. You cannot remove a child because of poverty. But Canada is not imposing on itself any positive obligation to deal with the housing crisis in First Nations communities. It is not imposing any positive obligation to deal with water issues, or all the other inequalities in education, early childhood and maternal health. Unless they do that by adopting the Spirit Bear Plan, then that is another false promise, because poverty is continuing to be an undercurrent in the removal of children. In dealing with the inequalities, those are important to the realization of this more holistic vision about what children are. I’m hoping the wording in Bill C-92 doesn’t restrict that holistic vision and that the funding provisions would be broad enough to impact those other areas of services that really touch on the health of families.
There is nothing in here on national data collection. We appreciate the OCAP principles. We believe that First Nations should be in possession of their own data, have access to their own data, but there is no question that it is very helpful to have a national sense of what is happening to children and their families. We are, to my knowledge, the only Western country in the world that does not have a national data collection system. Often, I hear excuses: “Well, we are a federalist country; it’s complicated. We have 13 provinces and territories; we have First Nations operating child welfare agencies for over 40 years.” But that’s really not an excuse. The United States, which has a national government and 50 U.S. states as well as a very rich diversity of Native American, Native Alaskan and Native Hawaiian cultures, has managed to create not one but two national data collection strategies for children. We need that information here in Canada. I think it is a criminal injustice in many ways that we cannot even tell you today with any accuracy how many kids are in care in the country, let alone how well those children are doing across the trajectory of their life. I think that is very important as well as having strategic support in place for the communities to inform the development of their laws and institutions and to ensure the operation of those laws and institutions in ways that meet the needs of their particular communities and, in broader strokes, the interdependence of First Nations across the country.
My first recommendation is that Canada adopt the Spirit Bear Plan. I think that’s the floor to successful implementation of this particular piece of legislation. If you put self-determination on top of inequality, it is not going to realize the dreams of healthy families that this bill tries to promote.
The second is to take a look at our black-line version. I want to recognize the contributions of Mary Teegee and Paul Seaman in this particular creation of the black-line version. Take a look at those proposals in the specific modifications of wording. I didn’t want to come here and just outline the problems. We wanted to propose specific wording that might help assist the senators in making improvements.
Ensure that the principles for the Canadian Human Rights Tribunal funding provisions are included in the binding text; again, it is substantive equality, needs-based, culturally based and reflective of the distinct community needs.
Canada has to connect to a very clear and open process for the development of regulations. I mean no disrespect, senators, but no one at Indigenous affairs headquarters has a social work degree. No one has ever practised with communities. I worked with front-line child protection for 13 years, I have been doing this for 35. I have a PhD in social work and I am not qualified to sit and write regulations on my own. It requires the real input of a whole array of some of the best thinkers — elders, knowledge keepers, youth-in-care, child welfare experts, lawyers. And make it a transparent process so that people can feed into that process of regulation development.
This bill, as it stands, is so deficient that if the idea is to firewall it by having a regulation system, then you need to shore up how those regulations are formulated.
Clarify which court is going to be dealing with the jurisdiction. I would recommend that Canada work with First Nations agencies — and we have been doing this work for 40 years — to run through different fact scenarios of actual cases to see how this would work on the ground. That includes the important issue about First Nation persons who live in urban centres.
One of the ways agencies have resolved that, by the way, is many agencies are proximal to those urban centres. Let me give you one example. If we look at Kahnawá:ke, their child welfare agency is right there in Montreal. They can easily service First Nations members in their local area. Other agencies have also asked for an extension of their mandates off reserve. Then they could enter into reciprocal agreements, like Native Child and Family Services of Toronto, which has established good working relationships with First Nations from where those children come and, indeed, Inuit and Metis children. There can be reciprocal arrangements between those different child-serving organizations, because it is vital that we pay absolute attention to the many children who are First Nations, Inuit and Metis living in urban centres. They deserve the same quality of culturally based care that other kids on reserve have.
I think I will end it there because I want to take full advantage of your questions.
The Chair: Thank you.
Senator McCallum: Thank you for your presentation. You have raised so many good points.
What will happen if this bill remains as is, and would you support it? Why or why not?
Ms. Blackstock: If it remains as it is, then my worry is that the fate of First Nations, Inuit and Metis children is, again, subject to political priorities about what gets funded and what’s in the regulations.
We’re coming up against an election. I have seen a lot of governments throughout my years, and I know the reality that this may be a priority for now but may not be a priority for tomorrow.
I think First Nations, Inuit and Metis children deserve more guarantees in this bill, particularly around funding and respect for their distinct cultures and languages. I’m afraid that if it goes through as it is, there will be a number of legal challenges to this bill that will tie it up in the courts and won’t allow First Nations communities to move forward with the help they need.
In terms of supporting it or not, I believe First Nations are in the best position to make that decision. My job is not to support it or not support it. My job is to provide, as best I can, a review of it and point out its strengths, like the cultural continuity provisions, but also being realistic about the conditions it needs in order to be successful.
Senator McCallum: So what you recommended here are the ones that we need to consider?
Ms. Blackstock: There’s a black-line version that accompanies the act. It was going to be translated. The briefing sheet you have there outlines some of the issues, and then the black-line version contains our proposed solutions of wording.
Senator McCallum: That will be good.
Ms. Blackstock: Thank you, senator.
The Chair: For clarification, Dr. Blackstock, you will be sending that to us?
Ms. Blackstock: It has already been sent to the committee clerk. It’s being translated. I will also send you my speaking notes, if you wish. I only have them in English, but I will be happy to send them along later.
The Chair: Is the Spirit Bear Plan that you referred to in the black-line version?
Ms. Blackstock: No, that’s an additional document that, to my knowledge, we haven’t provided, but we will provide it. It is available in French and English, and we will provide it.
Very quickly, it asks the Parliamentary Budget Officer to cost out the inequalities in First Nations childrens’ services and come up with something like the Marshall Plan after the Second World War to eradicate it.
Then there’s a second part, which is to actually have an independent 360 review of the Indigenous Services and Crown Relations department. In 153 years, there has never been an independent evaluation of those departments to be able to identify what stops them from doing better for First Nations children when they know better. That’s the second part of the plan. I’ll make sure to get that to you this afternoon.
The Chair: Thank you.
Senator Pate: Thank you, Dr. Blackstock, for all of your work and for joining us today.
I want to go back to the issue of which courts would address issues and what your thoughts are in terms of how this bill would intersect with Bill C-78, which is the changes to the Divorce Act that are currently before us as well. That bill proposes changes around how decisions will be made about where children are placed and family arrangements. I haven’t seen any analysis that looks at how the two of these will intersect. I don’t know if you have or if you have any thoughts on that. If not, what do you suggest we do about it?
Ms. Blackstock: It’s an important question. I understand that there is a bill being tabled by the New Democratic Party in the House of Commons on a children’s commissioner. There are a number of intersecting bills.
Importantly, Bill C-262 deals with UNDRIP, and we feel that UNDRIP provides a solid foundation for Bill C-92. It needs to be strengthened, but it provides a foundation.
I know that Ardith Walkem, who is legal counsel in British Columbia, has done good analysis on the Divorce Act and the matrimonial property piece. She has begun to do some important thinking about how these two bills intersect. You may want to contact her to see what her analysis of it is.
I think the court issue is also alive there because there are emergency protection orders, as I understand, in that particular legislation. It’s not clear, at least to a reader like myself, which court one would go to in order to get that protection order. We’ve heard various views from lawyers about this regarding Bill C-92. Some people say it’s obvious. It’s not obvious to me and it’s not obvious to many other legal counsel I spoke to about which court would take it, because the federal government, as I understand it, cannot just impose this on provincial courts. There have to be agreements with provincial courts to do this.
There’s also no real anticipation of how to support First Nations-based judicial systems, which I think is something that many First Nations would like to see. That’s not anticipated in this act. If it were to go to Federal Court, the Federal Court does not have any experience with child and family services models.
There are lots of questions about this. I think if you’re able to call the people who authored that Yellowhead Institute report, I think they may have more to offer on that than I do.
Senator Pate: One of the points you raised was the Parliamentary Budget Officer. Has there not been a costing of the Spirit Bear Plan?
Ms. Blackstock: No, there has not. The PBO has done good work on costing out First Nation education gaps, water gaps and schools, but we’re asking for something holistic across all those programs so we can finally have a comprehensive plan that puts all these inequalities behind these children and families forever. That has never been done.
Senator Pate: Would it be your recommendation that we ask for that?
Ms. Blackstock: Yes, and view that as an essential platform for the success of this legislation.
For First Nations children, we know that they’re 12 times more likely to go into child welfare care because of poverty, poor housing and addictions fuelled by mental health. If you don’t accompany equitable child welfare funding, which we are beginning to make happen at the tribunal, with investments in these other areas, then families will not have that same opportunity to meaningfully improve their situation and reduce the risk that the family is placed in.
Senator Pate: Thank you.
Senator LaBoucane-Benson: Thank you very much for your presentation.
When you bring up the courts, I know that Alberta is contemplating placing all family law matters in the Court of Queen’s Bench, which is good in some ways. Any conflicts being taken care of in the Court of Queen’s Bench in Alberta makes sense, too, if that’s where family law is going to land.
I have so many questions for you. I’ve been going back and forth on which question I’m going to ask.
One of the things I was really interested in is the active efforts in the child welfare legislation in the United States. In the active efforts, they talk about preserving the Indigenous family. It’s one of the principles that really guides the work there. They have to prove that they’ve done everything they can to preserve that family unit before a child is apprehended and placed in another family.
I’ve been thinking about the three guiding principles in this piece of legislation — best interests of the child, cultural continuity and substantive equality, which are important — but without something like active efforts that says we need to see proof that everything was done to preserve the child’s place in that family, then there would be a legal case against placement into non-Indigenous foster care. What do you think about that idea of active efforts?
Ms. Blackstock: It actually already exists in most provincial legislation. There are already placement primacy principles that require that.
I’m not sure this is wording as strong as I’ve seen in other provincial statutes. It worries me a bit. This is also the same issue with these socio-economic issues. You can say, “We’re not going to remove because of poverty, but if we do remove, we’re going to place with family.” However, unless you ensure that family has a proper house that’s not filled with black mould, then that’s not going to change anything. You quickly go through that list because the family does not have the capacity, not because they’re choosing not to, but because socio-economic conditions have put them in that situation. You have to move down the list.
The other thing this bill does not contemplate is if there is a non-Aboriginal parent. It says placement with family, but it doesn’t provide any safeguards. If the child goes to a non-Indigenous parent, what provisions are in place to safeguard the child’s culture? In our black-line version, we actually put in some safeguards for that child’s connection to culture and community.
I would say to you that the problem isn’t in the legislation so much; it’s in the lack of resources for families to be able to give that meaning. That again brings us back to the funding issue for support for families, for families’ representation and the representation of children themselves to have a voice in these proceedings.
Senator LaBoucane-Benson: And it’s not even just housing and clean drinking water. At a First Nation near where I live, the roads are so bad for six months of the year that unless you have a four-by-four with a big lift kit, you can’t get in and out of the reserve. It’s even the quality of the roads in the community that means their kids get apprehended if the social worker can get in to apprehend the kids.
Senator McPhedran: Thank you, as always, for being with us, Dr. Blackstock. I want to zero in on proposed sections 22 and 23 of the bill. I’m sorry that I don’t have access to the black-line, so I need to ask this question. It’s probably answered in that document, but we haven’t seen it.
You and your colleagues who have analyzed the bill around federal and provincial laws and state that while on first reading it may appear that First Nations laws are given supremacy so long as they conform to the Canadian Human Rights Act and the Constitution Act, section 23 enables First Nations laws to be infringed upon if there’s a determination that a provision is not in the best interests of the child. While safety of children should be safeguarded, the First Nations draft offers improved wording in that regard.
Am I correct that you don’t want to see a deletion but a major amendment to these two sections, and we will see what that is when we get the document?
Ms. Blackstock: Yes.
Senator McPhedran: Second, I immediately perked up when you talked about an independent evaluation. I think no one is going to argue with that as a principle, but as far as I know, once we get into that territory in a government context, we’re looking at the Auditor General of Canada. Is this something that you would like to see parliamentarians take the initiative on, to invite or request that the Auditor General of Canada do an independent evaluation?
Ms. Blackstock: It’s an interesting question. The Auditor General actually is currently completing a review on Child and Family Services, but their mandate is different than what I think we envision in the Spirit Bear Plan.
We would like to see an independent panel of experts that includes stakeholders who are normally engaging as service recipients, if you like, in a nation-to-nation capacity with Canada, and that they guide a skilled evaluation team to actually go in to INAC and take an independent look at it. That’s in order to identify the colonial vestiges that are getting in the way of achieving the best results for families and children.
That’s different than the Auditor General, where the Auditor General has certain parameters in terms of what he would review. They’re not really empowered to go in there and look at culture.
Although, I want to recognize the former and late Auditor General Michael Ferguson who did identify the issue of public service culture as being one of the key issues that he felt was a barrier to the implementation of the many recommendations the Auditor General had made regarding improvements to services for First Nations peoples.
Senator Christmas: Good to see you again, Dr. Blackstock, and it’s good to see Spirit Bear again. He’s looking really good these days.
Ms. Blackstock: I know. For an elder, he’s getting along.
Senator Christmas: Thank you for being here today to share your experience and insight.
Thank you for your life’s work of advocating for children in care. It’s deeply appreciated. My wife and I have cared for many children for many years, both kinship and legal. We have foster children, and we have adopted children. Unfortunately, I have grandchildren who have gone through both provincial child care systems and First Nation care systems.
What I really want to focus on is child care in urban areas. Unfortunately, I know of individuals, including my extended family, who have really struggled with non-Indigenous child care agencies in urban areas. It’s horrible.
I was intrigued by your comments about how care can be provided to First Nations children in urban areas. I know you had a few passing remarks about reciprocal agreements, but can you take a few moments to elaborate on how distinctions-based care can be implemented in urban areas?
Ms. Blackstock: It’s an important question that requires more than a conversation with just me. What we’ve envisioned and had conversations about over the many years of doing reviews with the department is that we already have over 105 First Nations agencies in existence that have been operating for 40 years or more. We need to recognize that that the capacity is already there.
Also, although they often get critiqued, they are actually about 50 per cent less likely to remove a child than non-Aboriginal agencies because they know about the extended family system. Despite the dramatic underfunding, they’re doing culturally based practice. They have much more sensitivity to that. They’re doing good work, and I’m hoping with the additional funding they’re getting from the tribunal that they will do even better.
There are a couple of ways this can work. One is extending the mandate off reserve. Something we asked the department to do was to ensure they have funding to extend their mandate off reserve. The department refused to do that in their last round of terms and authorities that were just renewed this last year, for reasons that aren’t satisfactory to me.
The second way this can be done is in an advisory capacity with another urban Indigenous organization delivering services. You can use something like telehealth, except it can be “tele-elder” or “tele-family.” These pieces of technology make it possible to bring culture and language to children in an urban setting and connect them with extended family and even, indeed, to the land itself.
Another piece that we’re hoping to see is funding for reunification of children back to their communities. So if you’re based in Toronto, there would be a family reunification program based in your nation that would assist you, even if you’ve never grown up in that community — maybe your parents or you were dislocated as a result of the Sixties Scoop — to be able to build a relationship back to your community, visit those communities and build relationships with your extended families and nation. From there, one could be able to continue that relationship using a combination of in-person visits as well as technology.
All of these things are wonderful possibilities. They’re definitely pragmatically available to all of us, as we’ve seen through the different types of innovations that have been made around language and telehealth, except maybe now we’re going to create “tele-elder” or maybe even “tele-bear.”
Senator Christmas: I’m trying to summarize your approach. Instead of having provincial agencies continue to occupy the field, you’re saying that we have 105 Indigenous child welfare agencies. Give them the capacity, the mandate and the ability to provide those levels of service and care within urban areas. Is that correct?
Ms. Blackstock: Yes. Extend their mandates on and off reserve. And where it’s not possible, where there isn’t a First Nations agency proximal to a major urban centre, work with the host First Nation and other Indigenous communities who populate that area to create an agency or mechanism to service the community members living in that area. Then you need accountability mechanisms back to that child’s community of origin. It would be building off of the Native Child and Family Services model, with some adaptations. I think that would work.
Senator Christmas: Thank you, Dr. Blackstock.
Senator Tannas: Thank you for being here, Dr. Blackstock.
Were you consulted in a way that you felt was sufficient in the drafting of the bill? Did you participate? Were you one of the 2,000 participants that shaped this bill?
Ms. Blackstock: Not in any substantial way. Most of my shaping of the bill was through the tribunal — ongoing hearings are how I’ve been doing it.
I have said to the government, “You use the word ‘engagement.’ What does that mean?” I don’t know what “engagement” means.
Senator Tannas: It could mean they wrote you a letter, right?
Ms. Blackstock: I don’t know.
I do know what “consultation” means under UNDRIP. But they’ve been clear in saying that they’re engaging and not consulting.
When I have seen and spoken to people where they’ve done presentations, the issue of funding has come up routinely for First Nations across Canada. First Nations are very aware that without adequate funding they’re not going to be able to implement their jurisdiction. Yet that continues to be rebuffed in the versions of the bill.
When I saw a draft of the bill, provided feedback and, like many others, echoed the need for funding, that didn’t appear in the next draft. The actual decision-making about what went into the bill was done by the government itself. It did not include any First Nations or, to my knowledge, Metis or Inuit people in the drafting of the bill, nor did they allow us to see a second draft of the bill in order to be assured that some of the major elements that we felt were preconditions for success were integrated. I know they say it was co-developed, but that was not my experience of it.
Senator Tannas: As an observation, it’s amazing here in Canada how we go back and forth between governments that want all the symbolism and glory without any of the hard work, and governments that see and understand the hard work and decide that it’s too much. Wouldn’t it be wonderful if we ever found a government that saw the importance of it and was prepared to do the hard work to actually get something that made sense? It’s frustrating.
I wanted to ask you about funding. My understanding is that we’re going to hear from Mr. Page, who did a costing on your behalf or in collaboration with you.
Ms. Blackstock: Yes.
Senator Tannas: You’re suggesting that we put — I don’t know what you would call it — a shotgun clause into the bill that says as communities develop, the funding would be there to an amount that would be equal to some calculation that takes into account things like residential schools and so on. It wouldn’t just take an Alberta kid and an Alberta Indigenous kid, take that average, apply it over here and be done. There would actually be some calculation, perhaps along the lines of what Mr. Page has done, that would determine what “equal” is, so it would be truly equal.
Then we would say, in our amendment or our suggestion, that if a funding agreement can’t be negotiated, this would automatically become the funding agreement within a year. Is that right? Is that what you were suggesting?
Ms. Blackstock: What we’re asking for is an ingraining of funding principles.
You’re quite right to point out the good work done by Kevin Page on the IFSD report. That was based on 2017-18 data. It’s important for the committee to know that they found shortfalls in agencies even there. Two thirds of them weren’t able to provide their staff with provincially comparable salaries, for example.
Now, the 2018 order by the tribunals improved some of that a bit, but I think when Mr. Page appears, he’s going to tell you that they’re recommending a second phase of research be done.
I can say that the National Advisory Committee for First Nations Child and Family Services has given its full support for that second phase of research. The consultation committee on child welfare, composed of the parties from the tribunal, has consented to the second phase of that research, but Canada has not agreed to fund that second phase.
We feel that is essential to informing this longer-term approach, not just with child and family service agencies, but this broader question not about a formula, but what some of the approaches of funding are. What are the approaches and principles of funding in order to support First Nations to develop and operate their own laws and institutions regarding children and families? Both those pieces are necessary.
Senator Tannas: Just so you know, it may turn out — because we’ve been down this road before in the Senate — that we’re not allowed to mess around with amendments on funding or money. We’re not allowed to do that. We’ll have a look and see if there’s some loophole in this case, but I doubt there is.
When we turn our minds, then, to the fact that we’re not going to be able to help you out on funding, should we pass this bill?
Ms. Blackstock: I can’t say one way or the other, because I know there are some First Nations who support it going through as it is. I really want to respect the role of rights holders in having that conversation with you.
I can only say, in my experience, if I was put in this Faustian bargain of choosing jurisdiction over funding, I think I’d go for the money because it’s harder to get.
Senator Tannas: Thank you.
The Chair: Thank you. We’ve come to the end of our time. On behalf of the committee, I would like to thank Dr. Blackstock and Spirit Bear for being with us this morning.
For our next panel, the committee is pleased to welcome from the Native Women’s Association, Francyne Joe, President; Virginia Lomax, Legal Counsel; and Melissa Lambert-Tenasco, Policy Advisor. And from the Institute of Fiscal Studies and Democracy, we have Kevin Page, President and CEO.
Thank you for taking the time to appear before us this morning. We will begin with opening remarks from Ms. Joe, followed by Mr. Page.
The floor is yours, Ms. Joe.
Francyne Joe, President, Native Women’s Association of Canada: Thank you. [Indigenous language spoken].
Good morning, Madam Chair, senators and colleagues. Thank you for inviting me here today to testify on Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families. I’m a member of the Shackan First Nation, located south of Merritt, British Columbia. I acknowledge that we gather on the unceded and unsurrendered traditional territory of the Algonquin people. I use “she” and “her” pronouns.
Since 1974, NWAC has represented the collective voices of Indigenous women, girls and gender-diverse people of First Nations, on and off reserve, both status and non-status, disenfranchised Metis and Inuit.
NWAC recognizes that Bill C-92 is an important bill. More children are in foster care now than were ever in residential schools, demonstrating that colonial erosion of Indigenous family units and communities is still the status quo in Canada. We have long known that immediate steps must be taken in order to put power back where it belongs: with Indigenous nations and families.
Today, I will highlight our concerns regarding the implementation of Bill C-92. Many of the implementations could have been avoided with the inclusion of Indigenous women’s voices in the drafting of the bill. This bill was not co-drafted with Indigenous women.
The first limitation is the ambiguity in the definitions, particularly the definition of “Indigenous governing body” in clause 1. This definition is overly broad because it states that “a council, government or other entity” makes up an Indigenous governing body, but it gives no clear direction on how to determine what council, what government or what other entity is authorized to represent an Indigenous community. This is problematic because the definition could even encompass national Indigenous organizations or future incorporated bodies rather than local governments.
This is further confused by the vague use of the word “authorized.” NWAC is concerned that Western laws and Indigenous laws may be in conflict with one another when granting authority to a particular government, with no clear method for resolution. If the final decision belongs to be the minister, then this bill does not respect the inherent jurisdiction of Indigenous peoples and will simply be another extension of power of the agent.
Second, there is no clear indication of how Indigenous governing bodies will be funded. There is no guaranteed level or structure of funding in this legislation, despite the fact that the preamble recognizes the call for funding in a sustainable and predictable way. Without clear, stable, structured funding required by law, the aims stated in the preamble are lost.
Many communities have long suffered from chronic underfunding. Communities cannot rely on unwritten promises of funding when it comes to caring for children and families. We can only assume that the federal government intends to deal with this in the coordination agreements, but this also is not made clear in the bill, which means no future government representatives would be held or bound to that intention.
This funding cannot be structured like contribution agreements, which would still amount to federal and provincial governments controlling the ways in which Indigenous governing bodies use the money. This is not self-government.
Bill C-92 requires a clear inclusion of funding structures that will directly benefit children, families and the communities in which they reside, whether on or off reserve, urban, rural or remote. Stable funding promotes Indigenous self-government.
The last concern I will share is the protection of the privacy of Indigenous children and their families. Subclause 12(1) requires notice of the measures being taken to be given to the Indigenous governing body. Based on the ambiguous definition I discussed earlier, this could mean delivering information about a child and their family to a corporation, an NIO or a band council, where there is a possibility of lateral violence or discrimination against the child or family.
We recognize that subclause 12(2) has been added to the bill and is an improvement to the original text of the bill, intended to protect private information. However, we also recognize that there is still a risk of identification, particularly in smaller communities. We have similar concerns about clause 28 regarding collection, retention, disclosure and use of information respecting services. This clause needs the same protection as clause 12.
We raise these concerns because we know our children deserve the absolute best we can give them. We understand that this bill is a vital change to the way the system works right now, but we also need to ensure that bill contains the necessary amendments to truly protect Indigenous children and to truly respect inherent jurisdiction and self-government. Let us continue to work together as equal partners to change child and family services for Indigenous children and families for the better and for the good. [Indigenous language spoken]. Thank you.
Kevin Page, President and CEO, Institute of Fiscal Studies and Democracy: Madam Chair and honourable members of the Standing Senate Committee on Aboriginal Peoples, thank you for your invitation. It is an honour to be here with you today. Your willingness and efforts to examine the subject matter of Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, in advance of the bill coming before the Senate is commendable and much appreciated.
I will make a few remarks on the financial aspects of the bill. The remarks reflect analysis undertaken by the Institute of Fiscal Studies and Democracy at the request of the Assembly of First Nations and with the National Advisory Committee on First Nations Child and Family Services. This work was led by Dr. Helaina Gaspard, who is here with me today.
IFSD’s report found that the structure of the system is broken. The costs are going up in a system that does not produce good results. First Nations people represent just under 3 per cent of the total Canadian population, yet First Nations’ children make up 35 per cent of those in care.
The policy direction of Bill C-92 is positive, as it emphasizes the place and role of preventative Indigenous community-based care for children and families. There is, however, an obvious problem. Bill C-92 outlines principles for the provision of services, but it does not connect jurisdiction with the requisite resources.
I have two points to make regarding the financial aspects of Bill C-92.
One, a fourth principle is needed to budget for well-being. There should be a commitment to include performance budgeting. By that I mean that funding is allocated to ensure progress against measurable outcomes in the bill.
Indicators of well-being include measurable results such as meeting physical, psycho-sociological developmental goals, opportunities to learn Indigenous languages, and having feelings of belonging, instead of a focus on measuring just the number of times a child moves in care, which does not help us understand if a child is thriving.
Similarly, language on the funding in the preamble with respect to predictable, stable, sustainable, needs-based and consistent with the principle of substantive equality should be defined in a way that facilitates information-gathering — clauses 27 to 30 — and accountability — clause 31.
Two, we need to adjust substantive equality for alignment to outcomes. The bill references a series of rights to promote substantive equality, but how substantive equality will be measured is undefined. Rights are important; outcomes are equally important.
The preamble of Bill C-92 highlights the commitment of the Government of Canada to support the dignity and well-being of Indigenous children, youth, families and communities. Consideration should be given to revising Bill C-92 so that the principle of substantive equality — clause 93) — is amended to include measurable outcomes of well-being.
The gap in Bill C-92 with respect to resourcing, new policy directions and First Nations, Metis, and Inuit children, youth and families raises a concern. Government and policy-makers are looking to extend jurisdiction but without commensurate resources. There is talk of substantive equality but no measurable outcomes or funding to achieve them. The evidence from across the world demonstrates that the return on spending on essential programs is substantially more than the cost of implementing them.
I thank you for your attention and look forward to your questions.
The Deputy Chair: Thank you very much.
Senator Busson: Mr. Page, you talked about the need to have measurable outcomes in order to gauge the success of Bill C-92. Could you give me an idea of what measurable incomes you think would be valid and credible in dealing with that issue?
Mr. Page: Thank you for your question. Right now the focus in the funding formula is that funding is really provided when children are put in care. It certainly incentivizes. In many cases, it doesn’t give people much choice, in a very stretched system, to put children into care.
If we started tracking indicators of well-being, there is a range of indicators that I alluded to in my opening remarks, such as health, emotional strength, stability, literacy in their own languages and numeracy. If we shift the focus to where we want children to thrive, as opposed to putting children in care, and started measuring those outcomes and provided resources that were targeted and tracked according to whether or not we were achieving those outcomes and adjusted those resources, I think we would have more success than we have seen today.
Senator Busson: Thank you.
Senator LaBoucane-Benson: Good morning, and thank you very much for your presentations.
My questions are for Mr. Page. The first one is about measurable outcomes. Many people don’t realize that the only money that ever flowed to First Nations for children’s services, if they did have an agreement, was around apprehension. There was an incentive to apprehend because that was the only way you could get paid.
I think the idea of measurable outcomes probably goes to defining “prevention.” They talk about preventive services, but I don’t feel like there’s a good definition of “prevention.”
Would you say that further defining “prevention” would give rise to measurable outcomes if we do a good job of that?
Mr. Page: Yes. There are some positive aspects in this bill with respect to the way it highlights prevention and prenatal care. It makes reference to funding for those types of services that are preventive in nature or prenatal in nature, which actually should supercede other types of expenditures, but your point is right. We are good in non-Indigenous society at deciding which indicators we think are important. Governments will say that it’s important that we grow the economy, increase the employment rate and reduce the poverty rate, but the way you juxtapose it in First Nations communities, it is the exact opposite.
When we did the study looking at First Nations agencies that provide child and family services, we found that very little money is actually spent on prevention. In fact, we struggled to even find a workable definition of what this work would mean. I know when we speak to people in the agencies, they know what it entails. It’s getting to families before the crisis emerges. So it’s dealing with those issues in a pre-emptive way.
When we look at the funding provided in the 105 communities that Dr. Blackstock talked about, we were able to survey close to 80 of them. There were definitely a few that spent a fair bit of their money on prevention, but by and large, most of them did not have the resources to deal with it.
Again, it’s positive that the act talks about shifting a focus toward prevention. I agree with you that it’s not properly defined. There are people that can define that work in agencies, people like Dr. Blackstock and others. It’s definitely a positive way forward, to shift the focus from protection to children thriving.
Senator LaBoucane-Benson: How would you link jurisdiction to funding? Dr. Blackstock did talk about the fact that they are not separate, that the funding is the expression of jurisdiction. How would you link those things together in this bill?
I’m asking for your direction on amendments in the spaces where they talk about jurisdiction, to have that funding piece that comes right after or in the same clause.
Mr. Page: There should be a definition on jurisdiction, obviously. In the work that we did with Dr. Gaspard, we asked, “Can we define a resourcing model that goes with that jurisdiction?”
If there are new communities that want to take on this type of jurisdiction that are not currently doing it, we should define it and they should be resourced accordingly. We should have something that looks like a workable, feasible model for all agencies. I think we have a rough sense of what that looks like now from working with many of these communities.
Yes, we are missing a definition.
Senator LaBoucane-Benson: Thank you.
Senator Pate: Thank you very much to all of you for all the work you do and your presentations here today.
Following up on the last question of Senator LaBoucane-Benson, one of the issues that comes up for us, and Senator Tannas raised it with our last witnesses, is when we start to make amendments that look like they are addressing funding, there are limitations on what the Senate can do.
How would you see making these amendments? I like the way, Mr. Page, that you have linked them to substantive equality, but that would require that the government would have to implement funding arrangements that would be out of the scope of the Senate to make.
Mr. Page: Senator, I applaud that the committee is pre-studying this before the bill is actually here.
The bill lays out three principles. The first principle is the best interests of the child; second, cultural continuity; third, substantive equality. As noted, we are missing — and it’s probably obvious to all of you who are reading this — a fourth principle that deals with budgeting for well-being, so a fourth principle that deals with resourcing.
The language in the bill that deals with financing is pretty much limited to the preamble, which doesn’t give it much force, I think many lawyers would argue. That language doesn’t go beyond. I’ll read it to you:
And whereas the Government of Canada acknowledges the ongoing call for funding for child and family services . . . .
It goes on to lay out a number of principles after that.
So I think there is a fourth principle to cover a big gap, one that deals just with resourcing. In the context of where Dr. Blackstock and others are going, again shifting the focus from putting kids in care to having children thrive, it lays out how that resourcing will take place.
For substantive equality, we have a number of subclause from (a) to (e) that talk about the rights of children, the rights of family members, the rights of Indigenous governing bodies, the gap-related issues from Jordan’s Principle. We should be breaking out what is missing here in this principle. The language in the preamble, what does it mean for these new jurisdictions that will take on the provision of these services? What does it mean they are going to get predictable funding? What does it mean it is going to be stable, sustainable, needs-based or consistent with the principles of standard? That needs to be defined in the subsections of this principle that is missing here.
Resources need to move based on these measurable outcomes that experts like Dr. Blackstock and Indigenous people will define for us. We should be tracking that on a semiannual basis to make sure there is progress.
When there is no progress, we may need additional resources to improve these outcomes. In the context of all the research that has been done in Canada and around the world, the socio-economic impact of a dollar spent on a child, the return on that investment is considerable, many fold. This is not an area where government should be underspending when you are dealing with children and families in crisis.
Senator McCallum: Thank you for your presentations. I want to go back to the lack of inclusion of women in this bill. There is very little mention. Women are essentially silenced in this bill, and they are so critical to raising their children. That is women’s sacred responsibility. There is no inclusion of women in determining the focus and direction of this bill. What would you suggest to bring human rights issues to raising children and providing focus and direction?
Ms. Joe: You are absolutely right. We received this bill, I believe, 36 hours after the announcement, so we had no input or engagement into the construction of this bill. We had 36 hours to analyze the legislation and provide that input to the minister.
When it’s such an important issue, we shouldn’t be rushed for something so important. When it is dealing with our children, you are right. Even if you are not a birth mother, you are an auntie or cousin, and you look after all the children in your community. For further input, we need to be consulted more.
I’m not sure, Virginia, if you have further comments.
Virginia Lomax, Legal Counsel, Native Women’s Association of Canada: You are absolutely right in that plainly looking at the language of this bill, it is clear there is no gender-based analysis whatsoever. It is clear that the voices of women who experience discrimination have not been included in the language of this bill.
Francyne spoke earlier to the definition of “Indigenous governing body” in this bill. When we look at this definition, it has no gender-based lens. Is this a presumption that it will fall to chief and council to be this group? Or to an NIO? It is not clear.
Regardless of who that Indigenous governing body would be, there is historical discrimination against women in these spaces and many others. Women and children need to know this bill is going to be safe for them. It’s even unclear who might have authority to pass legislation on their behalf. The people who might be able to pass legislation on their behalf are the people who could potentially have been discriminating against them in their communities. We know that Indigenous women are likely to have experienced discrimination under the Indian Act, and that is a big reason why a lot of women and their children may gain non-status in this country. We know the legacy of that discrimination is enduring and creating a lot of complications for women, even being on reserve. Those are people who have been discriminated against who are likely to be excluded from a benefit of this bill.
That is a big problem we have identified with some of the language in this bill. It’s very clear that it needed to have a much stronger outreach to Indigenous women, not just those on reserve, but also those who live off reserve, and to Metis and Inuit women who might have different realities for their governance structures. It’s not clear in this bill that any of those women or their children who might have had experience with child and family services were included.
Senator McCallum: Will you send recommendations or amendments for this?
Ms. Joe: Most definitely.
Senator McCallum: I want to go back to the issue of substantive equality. I was looking at what you had said about predictable, stable funding. With substantive equality, it’s achieved through equal access, equal opportunity and, more important, provision of services and benefits.
When you have substantive equality, it’s a relationship between groups. In this case, the law refers to “Indigenous” and “other children.” Is there data on those two groups, which I don’t think there is? How can you measure to ensure that you are accomplishing substantive equality?
Mr. Page: Senator, thank you for your question. Issues of equality are difficult for philosophers and for economists. In the context of principle number three, substantive equality, again, it’s very rights-based in this context. I think that it ignores outcomes.
I think one of the reasons we have this bill is because the government realizes it has failed Indigenous children and families in terms of the number of kids in care and those suffering from various medical ailments, addictions and mental health issues. To the extent we have data that compares Indigenous and non-Indigenous children, there are gaps.
If we feel this principle on substantive equality needs to go beyond results and needs to talk about outcomes, the language in there and the way the outcomes are defined need to be described in a way that makes sense for First Nations people.
I wouldn’t feel comfortable, as a non-Indigenous person, telling them what equality is. First Nations people have a different sense of how this could be measured.
What is substantive and what is equality has to come from First Nations people and how they will measure it. Connections to the languages and land that Dr. Blackstock talks about, like the Spirit Bear and spirituality, is extremely important. These could be highlighted in terms of mental health as well.
I don’t think this is something you necessarily see on a balance sheet, with Indigenous on one side and non-Indigenous on the other.
Again, the concept of a gap has been there since the Kelowna Accord. We know the gaps exist. But again ultimately how we target them, even in this clause with respect to outcomes, needs to be First-Nations-led, I believe.
Senator Tannas: Mr. Page, I appreciate what you said, and I’m interested in the substantive equality. Unfortunately, I don’t think it’s going to be up to the Indigenous governments to set the amounts that the Canadian government is going to give them. I don’t think there is a world in which that exists. So, we need to figure out a formula or mechanism by which we could bind the government, morally or legally, to develop dollars.
As you were talking, I wondered if this is a role in which the PBO could play an important part — officer of Parliament, theoretically separate from the government. We could do research for a mechanism that we could suggest be inserted that would do this, because we heard from Dr. Blackstock that this is the hard work that isn’t getting done and that needs to get done in order for it to be anything more than a last-minute win before the election, a symbolic win.
If we were to say that substantive equality should drive the funding, and that could be determined every four years with a study by the PBO, this would give us a handle to grab onto that would, at a minimum, have a government explaining why they’re not doing that and having a PBO with the ability to wave a flag to say that it’s not being done. Is there anything that you think might make sense?
Mr. Page: In terms of what might make sense, I agree a lot with what you are saying — setting targets that are aligned to indicators of well-being, not just children in care, and reviewing these targets on an annual basis, maybe not even four or five years, just tracking it on an annual basis and having independent oversight. It could be somebody like the Parliamentary Budget Officer or another independent group that’s assessing whether or not indicators such as program changes, a shift in jurisdictions and adequate resource application are moving in the right direction. I think that’s absolutely necessary, actually. To me, honestly, senator, that would make a lot of sense.
Senator Tannas: Would you give us a hand when we go to put something together on this?
Mr. Page: Absolutely.
Senator Tannas: Thank you.
The Chair: I will ask a follow-up question with regard to that.
Years ago, this committee was studying education and the funding gaps in education in the public school system versus the funding on reserve. I don’t know whether the committee found it out, but certainly one of the things that I found out when talking to one of the former premiers of Saskatchewan was that the provincial funding formula for education took into account the kinds of things we’re talking about today, for example, remoteness of the school. In northern Saskatchewan, you need more funding to pay for schools and materials, that kind of thing. It’s more than just the number of students. It would be related to curriculum, so French schools, for example, receive additional funding for teaching the French language. It’s a formula rather than just straight numbers of students.
Are you aware of those kinds of formulas that could be applied to child and family services funding? Do you think that kind of formula-based funding would be a way forward?
Mr. Page: Thank you, chair. I think there are possibilities to develop formulas that can get at many of the issues you talked about.
I think, as Dr. Blackstock has raised over and over again at the Canadian Human Rights Tribunal, there’s a need at least in the short term to establish an appropriate baseline. I think Senator McCallum’s point was that it’s not a baseline that says we will spend an equal amount on Indigenous and non-Indigenous children, which is sometimes the case in educational funding. Rather, make sure that we will provide adequate funding that deals with issues of protection, prevention and prenatal care in a better way and that we’re providing resources to help these children thrive in a better way.
Once that baseline is established jurisdiction by jurisdiction, I think we can then give meaning to some of the language in the preamble that needs to be put into the text of this document. What is needs-based? If some communities and jurisdictions are dealing with a different range of physical and emotional health issues or language issues so that more money needs to be spent, it could be adjusted.
In the context of your point about remoteness, where some communities don’t have road access and there’s a higher cost to provide these sorts of services in those jurisdictions, then formulas would definitely be very useful in adjusting it.
Another thing that’s definitely missing in this area, once we get the baseline, we need to make sure that demographics and inflation are compensated for. As Dr. Blackstock said earlier, when we surveyed First Nations child and welfare agencies, 60 per cent couldn’t pay anywhere near provincial salaries. Again, establishing that appropriate baseline and then adjusting for demographics, inflation, remoteness and allowing these jurisdictions to move money around from protection to prevention and including prenatal care, so they have this flexibility, I think there’s definitely a formula there. But as Dr. Blackstock said over and over again, we need to establish appropriate baselines.
In our studies, there were gaps in wages, capital and IT resources. These are simple comparisons we can make with other organizations. Again, we can close it up in terms of establishing appropriate baselines. We can come up with escalators that protect Indigenous communities in the future.
Senator Tannas: So an amendment that talks specifically to the collection of data would be in order to help further develop the funding formula. If we leaned on the PBO in the early stages to provide an outside assessment and definition of what equality looks like, what it is in real dollar terms, but also data that would allow analysis and improvement to happen, that would be a very important component. Is that right?
Mr. Page: Absolutely, senator. Thank you. There are resources that will be required to deal with those information demands.
I think there has been progress in First Nation communities in generating data. We talk about nation-to-nation relationships. I’ve avoided talking about some of the data issues and tried to focus my remarks more on the financial issues.
In our own experience in generating data for the work we did for the AFN and the national advisory committee, we found that it’s not hard to get data if you’re working through people like Dr. Blackstock. Our sense was that trust is broken, and Dr. Blackstock talked about this. I think the public service is struggling now in dealing with First Nations communities.
Putting the reasons for that aside, I think this data needs to be generated by First Nations, indicators they see and that they will measure. They will prepare their reports. These reports should be used to adjust funding for these communities in a way that, going back to the preamble, is predictable, stable and sustainable — not sustainable for the federal government but for First Nations communities — and is truly needs-based. In terms of substantive equality, it’s not just rights-based but also outcomes.
Senator Tannas: Could Statistics Canada in a joint effort with Indigenous governments work together as opposed to a new set of folks in the Indigenous affairs army? Would it make more sense to do something with experts in collecting data and the experts that have the data, working together and skipping the folks that we’ve heard are the problem?
Mr. Page: I also have the honour of sitting on a panel that was set up by a former minister of Indigenous Services Canada that deals with new fiscal relations. I’ve had the opportunity to meet some of the people enhancing the capacity to generate statistics on the First Nations side.
My sense is there’s a lot of capacity. As we look to the future and talk about nation-to-nation relationships with First Nations people, I think there could be a First Nations chief statistician. We could have a Chief Statistician for Canada and a chief statistician for First Nations.
Given the nature of the data we’re talking about and the way it needs to be collected — and I know Dr. Gaspard is a big believer of this — we can’t wait five years. She would push us to start seeing this data quarterly and semiannually to adjust funding so we’re dealing with these crises before they get too big and the damage is being done to children.
Senator Tannas: Thank you.
Senator Coyle: Following on this line of discussion, having heard from our previous panel representative, Dr. Blackstock, about the need for kind of a Marshall Plan here, let’s get serious and not accept mediocrity anymore. You are looking at a budget for well-being and indicators of measurable outcomes of well-being. We’re talking about all of these things.
Well-being doesn’t come solely from this piece of legislation or from child or family welfare interventions. It comes from a whole variety of places. If you’re doing a Marshall Plan, it includes Indigenous languages and a whole variety of education, economic development and other inputs required in a Marshall Plan-type of instrument, which then is put in place with measurable outcomes largely determined by the people who want to see those sorts of outcomes themselves.
What I’m trying to figure out in this big conversation we’re having here — and I think it’s an important one — is we’ve got a bill here that has lofty ambitions around prevention, yet it and the funding that may be associated with it will not be the sole instrument to achieve those outcomes from prevention.
I guess what I’m trying to say as we’re talking about baseline data and following up data collection on a national level, I would hate to see us lose the big picture that Dr. Blackstock challenged us to look at. At the same time, we have legislation in front of us that we need to address and fit into a much bigger picture, which I think is also something that you’re talking about. Could either of you speak to this?
Ms. Joe: When I was listening to the last question posed to Dr. Blackstock about support for this bill, we know that it’s not a perfect bill, but we cannot continue to do this injustice to our children. As much as I despair sometimes when discussing funding formulas, there are so many variables for formulas that aren’t always recognizing the issues that the child needs. It’s not just location and geography. It’s some of the health needs. So many of our children are unfortunately suspect to parents who have had issues with drugs and alcohol.
When I look at this bill, I think what we need to do is move forward with it, understand there are issues with it and take some steps to address these issues in a timely manner. I think it’s clear we need to have a certain time frame and come back to it to make sure the bill improves. If there’s ever a bill that’s perfect, I hope to be a part of that bill.
In the end, as my colleague mentioned, I’d rather put money towards being proactive for a child, because I think the benefits at the end of the day — or when the child becomes an adult — will multiply immensely. Thank you.
Mr. Page: Senator, I could echo what Francyne said about there being no perfect bill. I think it would be hard to argue against some of these principles, like the best interests of the child, cultural continuity and substantive equality that includes rights but also outcomes.
This bill, should it see the light of day and be passed, if it’s not consistent with the vision that Dr. Blackstock and others have talked about, I would have major problems with it. I think a bill that totally ignores the issue of resourcing in this context, given the disparities that exist across these indicators of well-being, is bothersome for me as somebody that has spent nearly my entire career in those central agencies and as a Parliamentary Budget Officer. I don’t see how we can move the yardsticks if we don’t resource this.
What’s behind the very vision that Dr. Blackstock talks about is moving some of the focus away from protection, which we’ve seen in existing models, to something where we want children to thrive. I could get excited about that. I’m not an Indigenous person, but I can empathize with what families go through. I have addiction in my family. I have had suicide in my family. I have lost a son to an addiction issue. I can go on and on. I grew up in Thunder Bay. I see what’s going on there. If we don’t help these people, God help us. So, I can get behind Dr. Blackstock’s vision.
Senator Christmas: I have a comment on the previous conversation, but I also have a question for Ms. Joe.
Dr. Blackstock mentioned a need for a national data collection system for children in care. With the discussion that Senator Tannas just had, I wonder if one of the things we should consider is establishing a position of chief statistician for First Nations children in care. Again, it’s just a passing thought.
Ms. Joe, I noted the fourth “whereas” in the preamble. It says:
Whereas Parliament recognizes the disruption that Indigenous women and girls have experienced in their lives in relation to child and family services systems and the importance of supporting Indigenous women and girls in overcoming their historical disadvantage . . . .
Was NWAC engaged in the development of that paragraph? And has there been any indication as to how the government plans to overcome those historical disadvantages?
Ms. Lomax: There was a small engagement process. The process through which NWAC was engaged is the one that Ms. Joe described. We were given the bill, and within approximately 36 hours we had a meeting where we provided suggestions. I don’t know if that particular paragraph would have been based on anything we said, but that’s unclear to me.
I know that even in just the couple of hours that we met, we were able to bring up some important points. For example, if you look to clause 12 of this legislation as it is, we highlighted the need for protection of children’s privacy. That was something that hadn’t existed in the bill previously. If that’s what you can get within just a couple of hours of engaging with a few people, imagine the benefit that this bill could see from meaningful consultation and engagement with Indigenous women and Indigenous youth.
I’d like to speak, if I could, briefly to the national data collection and the need for disaggregated data collection, and how important that can be for people who experience multiple forms of marginalization and the differences in service gaps that would be experienced even between different Indigenous children. Gaps in services are experienced differently by two-spirited and LGBTQ youth than other youth. Disaggregated data that will demonstrate where gaps in services exist and how they can be improved is something we want to support.
Ms. Joe: As mentioned, we had the legislation passed to us and we had about 36 hours to go over it, and our board of directors had about six hours to go through it on a weekend. It might have been eight hours. But that comes to the question that was raised previously: How do you define engagement? I’ve been told that there have been sessions where lunch meetings were held, and that was considered engagement. I don’t think the women actually understood what was happening and what the purpose of this engagement was.
I think whenever we do true consultation, it needs to be clear what we’re discussing, why we’re discussing it and who’s participating. Thank you.
Senator McCallum: I want to speak about the social determinants of health. First of all, when I said there was a relationship with substantive equality, I took it from the bill, and it’s comparing First Nations with other children. That’s where I got it from. I just wanted that on the record.
When I look at the social determinants of health, we have to be really careful how we define poverty. As a child growing up, we went hungry. We were in a one-room cabin. It was warm, it was safe and I was loved. To me it wasn’t poverty, though people may see it like that.
Then I was forced to go into residential school and we had sewage. We had separate beds and food, but it was very violent and abusive. That’s where I learned violence. To me, that is poverty. So we have to define the language we use here and be careful not to say that our people are poor. They’re not poor. They’re rich.
How will this bill be impacted by the social determinants of health when these determinants fall outside the jurisdiction of this bill, and yet the social determinants remain the major impediment towards moving to miyo-pimâtisiwin, which is living a good life, self-government and self-determination? How can you resolve these big issues that are driving this force when this bill is coming in and doesn’t have the ability to look at housing, employment or colonization through residential schools, and all those oppressive policies that still exist in the Indian Act? How can the bill move forward despite all of this stuff?
Ms. Joe: Thank you, senator. In the area of jurisdiction, I agree that when it comes to children, there needs to be more focus on the services for the child and the protection. This bill does focus a lot on the protection. I think we need to make sure that at the end of the day, any of our children are first being given the services they need, be it federal, provincial or local government.
I also fully agree with your definition of poverty. There’s financial poverty. I also didn’t realize how poor I was until I moved to a larger city. I thought a $19 family allowance was pretty good back in the 1970s. But I was also loved. We grew up in a small ranching community. From what I know of what my family went through in residential school, that was emotional deprivation and a different form of poverty more devastating than financial poverty. You can work harder to get yourself out of financial poverty.
But for jurisdiction, I think we need to consider that we need to have processes in place to be proactive, and we need to ensure that we’re focused on the services for the child.
I hope that answers your question.
Mr. Page: Senator, it would be a major gap if somehow we couldn’t see social determinants in this legislation. Again, there are parts of this bill that deal with preventive care. One of the senators mentioned that we don’t necessarily define prevention in a way that a lot of First Nations people would see themselves in this current draft, but I think you highlighted issues like housing, education and water. These sorts of things are very important in terms of making sure those basic conditions are there and families are in a position to support their children. It talks about prenatal care, socio-economic conditions.
I wouldn’t disagree. I think I share some of your history. I grew up in a house my dad built. We hunted and fished. Most of the food we ate came from the garden or from animals. It’s not hard for somebody like me to look at the data and see what kind of incomes First Nations communities have available and how they relate to poverty lines and the gaps that exist. Even to raise those First Nations communities to the poverty line is in the hundreds of millions of dollars.
We have a government that’s talking about strengthening the middle class. If we wanted to strengthen First Nations incomes to get them to a point close to the median income, you’re talking about billions of dollars.
I think you’re absolutely right. When we come down to definitions and social determinants, it should be done completely in a First Nations context, including substantive equality. I think we should recognize that the challenges we’re facing when dealing with resources, from the studies that have been done not just for Indigenous people, issues of poverty are a major headwind to making progress in terms of improving childhood well-being.
I think there are gaps, but we should talk about them in a context that resonates for First Nations people in terms of what those objectives should be and how big those gaps actually are.
The Chair: Thank you. We’ve come to the end of our time. On behalf of the committee, I would like to thank our presenters this morning.
(The committee adjourned.)