THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Tuesday, April 30, 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.
Mireille Aubé, Clerk of the Committee: As clerk of the committee, it is my duty to inform you of the unavoidable absence of the chair and deputy chair, and to preside over the election of an acting chair.
I am ready to receive a motion to that effect. Are there any nominations?
Senator LaBoucane-Benson: I nominate Senator Christmas.
Ms. Aubé: Are there any other nominations?
I move that the Honourable Senator Christmas take the chair for this committee meeting.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Ms. Aubé: I declare the motion carried.
Senator Dan Christmas (Acting Chair) in the chair.
The Acting Chair: I would like to welcome honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples 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 people.
I am Dan Christmas from Nova Scotia. I have the privilege of chairing today’s meeting.
Today we are continuing our pre-study of Bill C-92, An Act respecting First Nations, Inuit and Metis children, youth and families.
Before we begin, I invite my fellow senators to introduce themselves.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator Patterson: Ulaakut. Dennis Patterson, Nunavut.
Senator McCallum: Mary Jane McCallum, Treaty 10, Manitoba region.
Senator McPhedran: Marilou McPhedran, Manitoba.
Senator Francis: Brian Francis, Prince Edward Island.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
The Acting Chair: I would like to welcome to the committee this morning the Honourable Elisapee Sheutiapik, Minister for Family Services and Government House Leader, Legislative Assembly of Nunavut.
Minister, thank you very much for taking the time to meet with us.
Elisapee Sheutiapik, Minister for Family Services and Government House Leader, Government of Nunavut: Thank you.
[Editor’s Note: Ms. Sheutiapik spoke in her Indigenous language.]
Good morning. First, I want to say good morning to all of you, to all of Iqaluit, Nunavummiut watching, and, of course, my counterparts, fellow ministers across Canada, because I know they are also watching.
I want to take the opportunity to reiterate the Government of Nunavut’s support for meaningful reform that addresses the systemic issues facing Inuit across Canada.
As we know, Inuit children continue to face higher levels of poverty, violence, food insecurity than the rest of Canada. This social inequity continues to be a main factor driving Inuit children into care.
Bill C-92 represents a positive step toward eliminating the over-representation of all Indigenous children in care across Canada. However, I am here today to outline the serious concerns the Government of Nunavut has with the bill as it is currently drafted and its potential implications on existing Nunavut legislation and service delivery.
Before I outline my concerns, it is important to understand the unique position of the Government of Nunavut within the federation. The Government of Nunavut is the only public government where all cabinet ministers are Inuit. Nineteen of the 21 members in its legislative assembly are Inuit. It is a government elected by Inuit, serving Inuit. Additionally, no other public government has such extensive statutory obligations with Indigenous stakeholders as the Government of Nunavut does through the Nunavut Agreement.
The Government of Nunavut is responsible for administering and delivering social services across the territory. As such, the Government of Nunavut has first-hand experience and knowledge about the hardships faced by Inuit children, youth in care and the many challenges of service delivery in the northern, remote communities.
I would like to thank the Standing Senate Committee on Aboriginal Peoples for inviting the Government of Nunavut here today and for listening to our concerns about the impact Bill C-92 will have on Nunavut.
One of our biggest concerns is that Bill C-92 represents a failure by the Government of Canada to uphold its obligations under Article 32 of the Nunavut Land Claims Agreement.
As a signatory to the Nunavut Agreement, the Government of Canada is required to allow meaningful participation of Nunavut Inuit in the development of its social and cultural programs and policies. There is no doubt that the development of child and family services legislation falls under the category of social and cultural programs and policies.
Accordingly, to the Government of Canada, a number of Indigenous stakeholders participated in the early development of the bill. The government relied heavily upon the involvement of Inuit Tapiriit Kanatami, known as ITK, to satisfy any concerns about consultation obligations within Inuit. ITK is a Canada-wide advocacy organization for Inuit in Northwest Territories, Nunavut, Quebec and Labrador.
While the Government of Nunavut values the important role ITK has and will continue to play, advocating for the safety and well-being of Inuit children and families, ITK is not the party of the Nunavut agreement. It is not a council, government or any form of entity authorized to act on behalf of Nunavut Inuit. I also know that ITK is not a service provider.
The Government of Nunavut has reiterated the need for the Government of Canada to adequately consult us in the development of this bill. As the primary service provider of child and family services consultations, we would have illuminated the realities of service provision in the North and the significant challenges we face in delivering services.
If the true intent of Bill C-92 is to ensure a system shift from apprehension to prevention, with a focus on preventive care and support to families, consideration must be given to the significant social inequality in the North and how this affects families and service delivery. This includes addressing poverty, food insecurity, housing challenges and the lack of infrastructure in the territory to support children and youth with high needs.
This leads to our second concern related to funding. We understand the bill is intended to affirm jurisdiction, and apply principles and standards across the provinces and territories. We also understand that the intent of the bill is to facilitate a system shift from apprehension to prevention. How can we truly shift to preventive care when Nunavut families and communities continue to be deeply affected by poverty, which is rooted in the historical wrongdoing of the federal government: the impacts of colonialization?
In the same sense, how can we truly support our children and families when Nunavut lacks the social infrastructure to provide critical services that support the well-being of families. For example, children and youth with high needs continue to be sent out of the territory because we do not have the infrastructure to support them. As such, we are hopeful the language in Bill C-92 does not inhibit discussions on the broader needs of families in Nunavut.
There must be a recognition and commitment to understand that preventive care in Nunavut spans beyond just child and family services and touches on the housing crisis, food insecurity and lack of social infrastructure in our territory.
I would like to echo the concerns raised by Cindy Blackstock during her appearance in front of the standing committee on Bill C-92 in regards to the narrow definition of “child and family services.” One of the major challenges we are seeing in Nunavut is the lack of support services for youth transitioning out of care. Consideration should be given on how this bill can strengthen existing provincial and territorial legislation to better support adults transitioning out of care, a group we know is underserved.
Another concern is that Bill C-92 would undermine the work that has gone into creating carefully crafted Nunavut-specific legislation. Canada signed the Nunavut Land Claims Agreement with Inuit of the Nunavut settlement area in 1993. It is the largest Indigenous land claims agreement in Canadian history. One of the objectives of the agreement was to encourage self-resilience, as well as the cultural and social well-being of Inuit. Self-resilience was achieved in part by the creation of a public government under article 4 of the Nunavut agreement. Our treaty-established government is tasked not only with the same day-to-day business of public governments across Canada but also with upholding the founding obligations of the Nunavut Agreement.
Nunavut’s Child and Family Services Act was imported from the Northwest Territories in 1999. Since then, the Act has been amended substantially with the participation of Nunavut Inuit. The Government of Nunavut was required, under article 32 of the Nunavut Agreement, to include Nunavut Inuit in the development of these amendments to the act. The result is a piece of legislation that upholds the social and cultural well-being of Inuit while also protecting our children. For example, Nunavut’s Child and Family Services Act mandates the use of service and support agreements with families, which are preventive in nature, and encourage families and communities to find ways to support children.
According to the bill as it is currently drafted, when there is any conflict between Nunavut’s Child and Family Services Act and the bill, even if that conflict occurs because territorial provisions meet or exceed what is required in the bill, those provisions will be overwritten by Bill C-92. While the heading of clause 4 of the bill refers to “minimum standards,” the language of clause 4 itself, a binding part of the law, does not.
For an example of how problematic this is, consider the use of plan-of-care agreements under Child and Family Services Act. These are collaborative agreements between families and government to ensure the safety and well-being of children. The provisions in these agreements could conflict with Bill C-92’s strict rehousing priority list in subclause 16(1). It could be argued that the collaborative approach of a plan-of-care agreement is as good as or better at satisfying the best interests of the child. However, despite meeting or exceeding the minimum standards of Bill C-92, the result would be the rehousing provisions of Bill C-92, overwriting the plan-of-care agreements of the Child and Family Services Act.
Last, it is critical to note that the wording in Bill C-92 is very broad. This could lead to an interpretation that could render the bill inapplicable in Nunavut. “Indigenous governing body” is defined in the bill as a council, government or entity that is authorized to act on behalf of an Indigenous group, community or people who hold rights recognized and affirmed by section 35 of the Constitution Act.
The Government of Nunavut is authorized, on behalf of the Nunavut agreement, to pass bylaws and policies that uphold the rights of Inuit, and promote the social and cultural well-being of Inuit. All actions by the Government of Nunavut strive to incorporate Inuit qaujimajatuqangit, foundational social values of the Inuit people.
The leadership of the Government of Nunavut are all Inuit. These leaders are elected by and accountable to constituents who are, by a very large majority, Inuit themselves. With these facts in mind, it can certainly be argued that the Government of Nunavut is considered an “Indigenous governing body.”
If this were the case, then the Child and Family Services Act may represent legislation passed by an Indigenous body, and according to clause 3 of the bill, the Child and Family Services Act would prevail over all conflicts or inconsistencies with the bill, essentially rendering the bill inapplicable in Nunavut.
I want to conclude by reiterating that all provincial and territorial governments, Indigenous organizations and the Government of Canada have the same goal: to reduce the number of Indigenous children and youth in care and to improve the outcomes of those who are in care.
But we have to do it right. We cannot create more problems by hastily drafting legislation with inadequate consultations. The Inuit of Nunavut, specifically the Inuit children and youth of Nunavut, deserve better.
[Editor’s Note: Ms. Sheutiapik spoke in her Indigenous language.]
I want to thank the Senate for allowing me to be here this morning and present to you. I look forward to questions.
The Acting Chair: Thank you, Ms. Sheutiapik. I’d like to open the floor for questions.
Senator McPhedran: Thank you for making the trip to be here. It’s wonderful to see you again.
In hearing from previous witnesses, we had the Grand Chief of the Assembly of Manitoba Chiefs. He indicated very serious concerns with the bill. It prompted a discussion, which is ongoing, and I want to raise a possibility with you. Both Senator McCallum and I have been working with the Assembly of Manitoba Chiefs and their child advocate to try and come up with some options that might be more effective for what Manitoba has already done.
One of the things we’re looking at is an opting-out clause from this legislation. The idea behind that is to allow provinces and territories that have already developed a way of serving their children and who feel that the way that this particular bill is set up is not going to allow them to continue along that good path. Instead there should be an opting-out provision.
I wonder if that has been under any consideration by your government?
Ms. Sheutiapik: I’ll be honest to say it’s not a consideration we’ve thought of. We just looked at the proposed legislation and how it conflicts with ours.
Since we became Nunavut, we have amended our Act eight times to better reflect our territory. We’re trying to find ways of voicing how — just placing Nunavut in the legislation doesn’t fix it. As an example, people in care who are aging out, according to the legislation, are 18; for us, it’s 26.
I think it’s very important also to provide an example. Unfortunately, here in Ontario not so long ago it was very public where we had a young adult in care and unfortunately murdered a librarian. Here is a real example of how we have a legislation where we have the ability to have in care transition for age 26. The individual is in Ontario so they conflicted. And we are trying to reach out.
These are real challenges. That’s why we’ve been very vocal about this legislation, where we felt we didn’t get the consultation to be able to voice how these conflict with our act.
Senator McPhedran: If I may, I have a supplementary.
We are in the capital city of Canada, the seat of the national government for Canada and, if not the highest, certainly one of the very highest populations of Inuit people outside of the territory is, in fact, in this city. There is, I think, an evident lack of adequate services to support many Inuit people living in Ottawa.
With your aging out of 26, are there any services that get transported from the territory, for example, to a concentrated population of Inuit youth that may be in Ottawa, in Montreal, other locations, or are the services limited to the geographical boundaries of the territory?
Ms. Sheutiapik: Friday and yesterday I was visiting our youth and adults in care in Ontario, in Ottawa. Those provisions are there. We try and work with the providers.
Unfortunately, as I said, far too often we have to send children out of care because we don’t have the facilities or the capacity to provide the support. We do our best to accommodate them here in Ottawa. It’s not just in Ontario; there are other provinces that have that service for us.
Senator McPhedran: Just to make sure I understand, the services you just described are services funded by the Government of Nunavut but provided to Inuit people living outside the territory?
Ms. Sheutiapik: Yes. From what I understand, the service provided at the provincial level may be at full capacity. We have to find contract work for that service.
Senator McPhedran: Thank you.
Senator Patterson: I’d like to thank the witness who has herself a great deal of experience in family law matters and issues relating to women and children.
Minister, thank you for explaining so clearly the unique situation of the Government of Nunavut resulting from article 4 of the Land Claims Agreement. Basically, we have an Inuit government with an Inuk minister, an Inuk premier having carefully carved out, in collaboration with the Inuit of Nunavut, as required by the Nunavut Land Claims Agreement, article 32, a Child and Family Services Act that is made in Nunavut for Nunavut, delivered by Inuit. Now we have a federal government that has, perhaps looking to provinces, created a bill that will allow for Indigenous organizations to take over child welfare functions from provincial governments who have not always been doing a good job.
That’s not the story in Nunavut. I’m not saying there aren’t problems, but in Nunavut, Inuit are taking on the difficult challenge of looking after their own children. I think they are doing as good a job as possible given the social problems in Nunavut, including a severe lack of housing, which the current federal government has done nothing about.
Chair, forgive me for a long preamble. I think it’s important that the unique situation of Nunavut be drawn to the attention of this committee.
The problem is that the bill doesn’t take that into account, particularly clause 4, minister. I understand, from meeting with you and your officials, there’s a concern that clause 4 of the act could create a conflict where a provincial act or regulation or a territorial act or regulation could indeed meet or exceed the minimum standards set out in the bill.
Do I understand that you would recommend an amendment to clause 4 to recognize that, in your case, the territorial government may have enacted a standard for child welfare that exceeds the minimum standards set out in the bill? Do I understand you would wish to have an amendment to clause 4 that would address that potential conflict and allow the Government of Nunavut’s legislation to stand as against the federal legislation?
Ms. Sheutiapik: That’s correct. I must say, with all our challenges in Nunavut, I just came from Saskatoon for our federal/territorial ministers meeting. It’s the first time as a minister of two years that I can say we are actually ahead of the federal government when it comes to our act for child and family services.
Senator Patterson: May I also ask you about the language of section 21(1) of the bill, which states that Indigenous laws have the force of law as the federal law. I understand that for your government this creates significant confusion because it is unclear whether the Government of Canada intends for Indigenous laws to have the power to overwrite Nunavut laws with this legislation. Do I understand that there is also a concern from your government and your Department of Justice that the intent of the language of Bill C-92 can be clarified to recognize the right of the Government of Nunavut to legislate on matters of this nature in Nunavut according to the Nunavut Act and the constitutionally protected Nunavut Land Claims Agreement? There is a confusion here that needs to be clarified. Is that correct?
Ms. Sheutiapik: That’s correct.
Senator Patterson: Finally, I want to thank you, madam minister, for clarifying that ITK — which is well known in Ottawa because it is very easy for federal ministers to walk across the street and consult with ITK. ITK is not a program service delivery body. It is an advocacy organization. It is not the designated body with which the federal government must consult when enacting laws respecting Nunavut. Article 32 says that has to be Nunavut Tunngavik, not ITK. Do I understand, minister, that your government wishes to clarify that consultations with ITK were not consultations with the Inuit of Nunavut as required under the Nunavut Land Claims Agreement?
Ms. Sheutiapik: That’s correct. English is my second language, but I have a pretty good understanding of what consultation is and coming from the territorial government we didn’t get that proper consultation as a service provider.
Senator Patterson: Thank you.
Senator Doyle: Thank you for being here. I wanted to follow up on my colleague’s question. Your Department of Justice has indicated there was not really a great deal of collaboration with your government on the drafting of the bill, that it had significant legal flaws that affected its applicability and enforceability. The Government of Canada presented an early draft of the bill to representatives of your government in just a two-day briefing. That was the very first time that you had seen anything about the bill. That was the end of January and the Government of Canada indicated at that time that the bill had to be passed before the next federal election. They had to work very quickly.
In your opinion, is that a proper way to present such an important bill? Would you like to have additional time to work on the bill and work with your people and the federal government on the bill so that you could be properly consulted? Would that be a fair question to you? Would it be a fair comment that you probably need a little bit more time on this bill to make it exactly what you want it to be?
Ms. Sheutiapik: For sure, because we feel we have not had input into this. It is critical because we have Inuit in care out of territory. We need to ensure that if we need to, like in the last incident example I gave, we don’t want our acts to conflict with the federal acts. We are here to make sure that people are safe. Unfortunately, the system failed in the example I gave because of the conflict between one jurisdiction over another. I would want more time to iron out how to best have this legislation.
Senator Doyle: The little bit of consultation that you had wasn’t adequate. Were any of these concerns adequately reflected in the final draft of the bill?
Ms. Sheutiapik: If I may say, I think they were more briefings than consultation, to be blunt.
Senator Doyle: Okay. Thank you.
Senator LaBoucane-Benson: Thank you, minister, for your presentation. I have to admit that I know a lot more about provincial children’s services and very little about the Nunavut Act. If my questions seem a bit ignorant, I apologize.
When I look at the bill, you referred many times to number four about minimum standards. I’m a little confused. Number five says:
Subject to section 4, nothing in this Act affects the Legislature for Nunavut’s legislative powers referred to in section 23 of the Nunavut Act.
I wonder if that does not then address the issues that you have, that the powers of Nunavut by the Nunavut Act are not affected by this act. I heard you say that this bill could very well be useless in Nunavut. I think that that is more the issue, that because of section 5 the power for your government to do what they need to do remains intact. Am I wrong in that assumption?
Ms. Sheutiapik: It’s also because we have Inuit in care in Ontario. You don’t have the kind of service agreements we have in Nunavut. That legislation doesn’t provide that.
Senator LaBoucane-Benson: Yes. I’m familiar inter-provincially how difficult it is to do children’s services. I’m from Alberta. I am very aware of how doing any work inter-provincially is a quagmire. I understand that.
Does section 5 not address your ability to do the work that you need to do in your own territory?
Ms. Sheutiapik: I will be meeting with our Department of Justice regularly for clause by clause. Unfortunately, I didn’t bring all of my documentation with all of our issues. We can certainly forward that to you.
Senator LaBoucane-Benson: And your presentation, are you going to be giving us a copy of that?
Ms. Sheutiapik: I believe I have provided a copy.
Senator McCallum: Thank you for your presentation. I wanted to go to the preamble.
In the bill it states:
. . . 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;
We have to remember that this isn’t an issue that started recently. That many governments have left this continuously unaddressed. Part of the problem that we are having is because we feel that we have limited opportunity to deal with this, depending on who is going to be the next government, because some governments have not supported or looked seriously at our issues.
When I look at overcoming that historical disadvantage, we are looking at the parenting and life skills that these children haven’t had. I’m comparing it to my experience in residential school, when you come out and you don’t know your community as you should because you have been forcefully removed from it.
This bill says this is what we want to do. It’s on preventive care, to shift the focus to prevention, when we haven’t even addressed our history of why we are where we are, and now we are going to shift into prevention?
When I was reading through the documents last night, there is only one mention of the Inuit, and it was with ITK, all the consultations they did. Now you are expected to deliver preventive care when a lot of it lies outside this bill. I’m talking about the social determinants of health, which you mentioned.
It’s a big challenge for communities. I think it’s impossible, but we need to do something to move this ahead.
Where do you start? Where do you recommend that we look at certain parts of the bill and say this is workable if this part is addressed, and we can continue after that? Is that possible?
Ms. Sheutiapik: I think so. This whole process we are going through is for you to allow someone like me who has issues and challenges with this drafted bill, to hear from us. Hopefully through this process, you will learn what our recommendations are. If those changes are made, I think that is possible.
Senator McCallum: What would be the most critical part?
Ms. Sheutiapik: We have the clause by clause when we met with our Department of Justice. We will certainly provide you with that electronically.
Senator McCallum: Thank you.
The Acting Chair: Thank you, Madam Minister. In your remarks, you mentioned Cindy Blackstock’s concern about the narrow definition of “child and family services.” The definition includes prevention services, early intervention services and child protection services. You mentioned in your remarks that it doesn’t consider the population that ages out.
Could you elaborate on those remarks and how you would expand the definition of “child and family services” in the act?
Ms. Sheutiapik: I stated earlier that, unfortunately, we have far too many in care. Right now, going out of care is at age 18. We realize that. Some of the issues have been that when they go out of care, there is not enough support for them. That’s why our legislation is at 26, because we recognize that. We recognize they are aging out, but we want to support them so that they succeed. We have increased it to 26, recognizing it.
The Acting Chair: In your government, you have extended the services to age 26. Could you explain how that has impacted youth affected by child protection services? Could you describe how that has affected those youth in those categories?
Ms. Sheutiapik: I will give an example of one particular case that was briefed to me. A child, actually a youth at 20, was going out of care and refused any support to get housing assistance and income, but learned quickly that you can’t come out of care on your own without a job and accommodations. That individual came back. We signed an agreement, even though he had refused initially. Through our social worker, because we knew this might be a possibility, we signed an agreement with that individual.
The Acting Chair: Thank you. That concludes all of our questions. I would like to thank you, Minister Sheutiapik, for appearing today. Your comments have been taken to heart.
For our next panel, the Standing Senate Committee on Aboriginal Peoples is pleased to welcome from the Paqtnkek Mi’kmaw Nation, Chief Paul Prosper; from the Mi’kmaq Rights Initiative, Jennifer Cox, Barrister & Solicitor, and Project Lead for the Enhanced Child Family Initiative; and from the Mi’kmaw Family and Children Services of Nova Scotia, Paul Morris, Lead Counsel.
Thank you all for taking the time to appear before us today. We will begin with opening remarks by Chief Prosper, followed by Ms. Cox and Mr. Morris.
Paul Prosper, Chief, Paqtnkek Mi’kmaw Nation: Thank you.
[Editor’s Note: The witness spoke in his Indigenous language.]
Honourable committee members, it’s an honour to be here on the traditional territory of the Algonquin people. I am Chief of the Paqtnkek Mi’kmaw Nation. I am here on behalf of the Assembly of Nova Scotia Mi’kmaq Chiefs, which exists as an institution of governance for the Mi’kmaq of Nova Scotia. For the past four years, I have held the justice portfolio for the assembly and have become quite intimate with child welfare-related issues from a provincial perspective.
The Mi’kmaq occupy roughly five provinces within the Atlantic. We have our own creation story. We have legends that speak to a time when the ice started to walk on the land. We have a traditional government, Santé Mawi’omi, the Mi’kmaq Grand Council. We have rights, both Aboriginal and treaty. We have pre-Confederation treaties that have been recognized by the highest courts in this country.
Throughout our history, from scalping proclamations to pre- and post-Confederation legislation, including the Indian Act, we have endured, despite the failed good intentions of the federal government. We not only survive but thrive.
Before the arrival of Europeans, we existed as independent nations, governed by our own customs, values and traditions. The original instructions of Nisgam or Kisulkw, the Creator, provided a basis for us to live. We have an inherent right to self-government. This is independent of any legislative recognition. It’s embedded within the constitutional framework of this country through section 35.
With respect to our position on Bill C-92, we support the bill in terms of its recognition of the inherent rights that Aboriginal people have to children, family and communities. It’s unfortunate that this bill doesn’t have any substantive provisions related to funding.
We’d like to share a bit of our experience — all of us here — on what we have undertaken within Nova Scotia by way of background. In 2014, the Province of Nova Scotia sought to amend an act that was roughly 27 years old known as the Children and Family Services Act. As it existed within the Mi’kmaq nation as it relates to children, there was a fair bit of controversy related to children, and the care and protection of children, internally. But we decided to put our children in the middle and put our differences aside to work together to create a path forward. Our path and approach involved an interim measure involved realizing the positive amendments to the Children and Family Services Act but also a long-term approach involving Mi’kmaq laws over Mi’kmaq children. It was a collaborative approach. It still exists as a collaborative approach involving our partners, the Province of Nova Scotia and many justice stakeholders within Nova Scotia. This resulted in 25 amendments specific to the Mi’kmaq within Nova Scotia, an act, the Children and Family Services Act, which had no previous provisions dealing with Mi’kmaq people. These amendments were realized in 2017.
From that experience, we have come to seize the benefits of this change. We know that there is less foster care for our children who are in care under more customary care. We have family group counselling, known as Wikimanej Kikmanaq , which provides a preventive approach from apprehensions taking place by early intervention. It reflects the teachings of our elders, where we need to fix things before they break, as one had put it.
The benefits we have seized and gained within Nova Scotia, we don’t want this federal bill to interrupt that momentum that we have gained.
We are tired of watching our children and families and communities torn apart by a system that, frankly, just doesn’t work. In the early beginnings within Nova Scotia, I was often curious and would have discussions with then-Minister Bernard over my role as chief within my community and, more specifically, the role of community.
We realized there are basic building blocks that our children must have with respect to identity, culture, language, tradition, the spirit of the people and of a nation. This idea of connection and belonging, which is a basic cornerstone to a healthy community.
We realize that solutions to our problems involving child welfare must come from within, where there has to exist a certain environment in order for this change to take root. Provincial laws and policy often don’t reflect the realities within our communities. Self-government provides a mechanism and a way to offer traditional and practical measures to allow us to take care of our children and families.
We know this through certain experiences we have. For example, within Nova Scotia, if we’re thinking about elders in terms of gifts or money for their services, we have to seek provincial approval, which often causes red tape and time constraints.
Regarding customary care, there are prohibitive provisions that provide that if a person has a Criminal Code offence within the last five years — and this could be a minor offence — they are prevented from being considered for customary care services.
There is certainly a need for change.
I’d like to provide some comments on funding and transition. Our experience within Nova Scotia, through the amendments to the Children and Family Services Act, provides that legislation alone doesn’t allow for change to take place. It takes a coordinated approach. It takes education, capacity building, governance structures, infrastructure, stable funding and a comprehensive justice strategy.
As indigenous people and cultures, there is wisdom and a certain care and concern we possess, and, obviously, throughout time, a certain prophecy and foresight that we have as people and as nations.
Throughout history, our people have benefited from the original instructions provided from the Creator, Kisulkw, or Niskam. It’s through the course of history that these original teachings have been somewhat compromised.
These teachings reflect an idea where every human matters. That doesn’t depend on their role, their position or certain accreditations. It flows from birth. This, we believe, will provide a vision where we start to redefine what it means to be human throughout this process for the benefit of our communities and for generations to come. Wela’lin.
Jennifer Cox, Barrister & Solicitor, Project Lead- Enhanced Child Family Initiative, Mi’kmaq Rights Initiative: Good morning, senators. Thank you very much for inviting me here today. I am one of Nova Scotia’s Mi’kmaw lawyers with an extensive background in the area of child and family services. The perspective from which I speak to you today is as a lawyer with, as I calculated last night, almost 24 years practising law, and the last 10 years have been in the area of child and family services. I also have a lot of experience with the processes that the Chief had mentioned with respect to the legislative changes we went through in Nova Scotia. I was working for Nova Scotia Legal Aid at the time and we were working through those changes.
We submitted a brief but it wasn’t translated in time. Senators do not have a copy. We have specific suggestions with respect to Bill C-92. The technical pieces are in that brief. I don’t propose to read verbatim through those. I would like to go through some of the comments in the brief itself.
I think it’s important, first off, for everyone to understand that we and the chiefs take the position that we were not co-drafting Bill C-92. We had one engagement session that I’m aware of in Prince Edward Island, in October 2018. That was it. We did not have an opportunity to participate in the co-drafting of this bill and we take issue with that characterization.
I also think it’s important to point out, as the Chief indicated, that we’re supportive of Bill C-92 because it provides that rights recognition provision. We obviously have concerns about the fact that there’s no funding in it. Our written submissions to you make some suggestions to pull the language from the preamble into the body of both section 18 and section 20 of the bill itself.
As I think the Chief also indicated, it’s important for you to recognize that the positive changes we have seen in Nova Scotia are not just because of the legislation. Although there were changes to the legislation that reflect positively for our communities, it isn’t just the legislation that has made the change. It’s the group of individuals who are now working together. We all came together as a team. Mr. Morris, Chief Prosper and a number of other individuals, including Angelina Amaral, Heather McNeill, Philippa Pictou, a health director, all volunteered their time to come together to work on the legislative changes because we had a very short window. The government gave us less than three months to look at the bill that they were tabling and make some suggestions.
As we developed that team, we developed this infrastructure and governance model that was informal and off the corner of our desk. We worked through the legislative changes and then we continued to look for changes to policy, the development of Wikimanej Kikmanaq, the family group conferencing model that we are now using. Quite frankly, I think the province of Nova Scotia is now beginning to borrow the implementation of customary care arrangements. There have recently been some changes in the policy in the province of Nova Scotia so that those are now funded. We have many more customary care arrangements. I think, to some degree, the province of Nova Scotia is now embracing the suggestion that customary care is a good idea not only for our communities but for their communities as well.
I think it’s important for you to understand that although the legislation, the changes to the legislation and, definitely, the rights recognition provision in Bill C-92 are important for us as we move forward with the vision of the chiefs, we also have to take into consideration there are people and resources required to make sure that we can all take these tasks forward. We can’t do things with just a piece of legislation.
It’s very clear to us that the funding is the big piece that’s missing from Bill C-92. I’m mindful of the fact that the Senate has limits with respect to what it can prescribe in terms of the funding provisions. For the record, it’s important that be included.
The brief that we submitted is also done in order of priority. There are a number of suggested amendments. The first is funding. That is our number one priority for amendment.
Number two is enhancement of the jurisdiction clause. The jurisdiction clause in section 18 does not mention the United Nations Declaration on the Rights of Indigenous Peoples. We’re asking that be inserted.
It’s also important for you to understand that as we look at this bill, we haven’t completely picked it apart. We haven’t had the time. We realize that the bill may lose momentum if we get too caught up in too many amendments. We’ve been strategic in the way that we’ve approached the submissions both to you and to the House of Commons that we will be doing later today.
The inclusion of Jordan’s Principle,clause 9(3)(e) of the bill, basically talks about Jordan’s Principle, but let’s mention it. Jordan’s Principle has been a huge relief to our communities and made a big difference in terms of the development of services, the ability to do preventive and placement options. It’s a big deal. It should be mentioned specifically not just referred to. It should be specifically mentioned.
In the best interests of the child section, clause 10(3), we make some suggestions to the first provision; we ask that there also be the inherent Indigenous legal and community standards observed as well as the list. We’re making some room for that to be included immediately so that courts and others can reflect upon the Indigenous legal and community standards. That’s where the frustration comes from when you practise in the area of child welfare. The communities and the leadership are not listened to in the system. It’s important that we look at that.
We also suggest that clause 9 be referred to in clause 10, so that the principles of cultural continuity and substantive equality be cross-referenced in clause 10, the best interest section, because that clause seems to be a fairly weighty consideration in the bill. If you don’t cross-reference those sections, I think the principles are not as weighty as the best interests.
With respect to clause 10(3)(g), the family violence provision, we ask that be removed completely. When you’re working in the area of child protection, family violence is usually considered a protection ground, a reason for removal. It’s not normally something you see in a best interest environment. As I’ve suggested in the brief, it seems like it’s out of place. I think it has the potential to confuse people and increase apprehensions because of that confusion.
We’ve suggested that the definition of “care provider” exclude foster parents whose sole connection to an Indigenous child is by way of a child protection placement. I think inadvertently that definition allows foster parents to have standing in a legal proceedings. That’s not necessarily going to be helpful to this bill.
We are looking for three-year review, not a five-year review. We would like to see some reference to courts in the application, clauses 8 through 17 for ongoing child protection matters, so that the courts that are normally hearing child protection matters can continue to apply Bill C-92. We’d also look for some provisions that would allow perhaps the Federal Court to get involved if there were issues with the mechanical parts — the coordination agreements or other pieces that were holding up the implementation of the bill.
In clause 12, we made make suggestions and bring forward some provisions, some documents from Nova Scotia. I think this is a good example. Attached to the brief you will find — once you see it — the notice that goes to our communities as well as the document that is used for the communities to respond to the notice. That’s a good example of co-drafting. We worked together with the province of Nova Scotia and the courts of Nova Scotia to develop those forms. I think those could be useful when you look at clause 12(2) because we do some identifying in those documents. I think it also speaks to the intention that’s probably behind clause 12.
Finally, we’re looking at some transition ideas such as the First Nations children’s commissioner and an independent child welfare agency. Some infrastructure needs to be in place at a national level to assist us with this reform. We can’t just change the legislation and expect that’s going to fix the issue.
Finally, I have noted in the brief we did a YouTube video of an elders conference in December 2018. I’ve given you the link. It explains a little bit about the initiative we’re working on, the hopes and dreams of our communities, and certainly the elders and their vision. I think it would be helpful for you to understand the work that we’re now doing in Nova Scotia just because I didn’t have the time to go through that. Those are my comments. Thank you.
The Acting Chair: Thank you, Ms. Cox. I want to confirm that we did receive your submission. It’s being translated. It will be shared with all the members of the committee as soon as possible.
I’ll now ask Mr. Paul Morris to make his comments.
Paul Morris, Lead Counsel, Mi’kmaw Family & Children Services of Nova Scotia: Thank you, senators.
I was asked to come along to talk about the history of Mi’kmaw Family in the province of Nova Scotia and some of the progress, both before the amended legislation as well as the changes that have happened certainly since I’ve been involved with the agency.
I have a quick blurb on who I am. I’ve done child protection litigation for the provincial Department of Community Services as well as Mi’kmaw Family since the late 1990s, and it became almost exclusively my practice over the last 15 years. Three years ago, I was hired to come and work in-house with Mi’kmaw Family full-time. We now have four lawyers doing all of the legal work in the province of Nova Scotia, working under Mi’kmaw Family as opposed to private counsel. Part of that is the overall strategy of the agency to bring as many of these things as possible under one roof.
The agency was created in the mid-1980s through a tripartite agreement between the federal government, the provincial government and the 13 chiefs. It is an agency that has a board made up of the 13 chiefs plus a representative from the Nova Scotia Native Women’s Association.
Although it’s a separate agency, it still operates under the Children and Family Services Act of Nova Scotia. It still is governed by the policies that are created by the Province of Nova Scotia as opposed to a separate set of policies. As such, although it is a separate agency that does all of the child protection work on the 13 First Nations geographically within Nova Scotia, it is not completely autonomous in terms of its approach to child protection.
I bring that up just to note that although it operates under the same policies and certainly as the lawyer who has acted for both the Department of Community Services as well as Mi’kmaw and Family and Children’s Services, it operates differently. That change in how they approach child protection certainly has become more marked over the last 10 years.
When I initially began working with some of the other lawyers that were working in this field and started working for Mi’kmaw Family, it was a smaller organization, workers had huge case loads compared to their provincial counterparts. I think that in itself led to an approach to child protection that perhaps wasn’t always focused on the least intrusive options that were necessary but more about getting the work done as quickly as possible to try and keep up.
As well, through that, I think a lot of the policies that were applied, were applied with less of a critical eye. When I started out, probably 75 to 80 per cent of my files involved kids in temporary care and custody. For the children, there would be protection concerns identified, the agency would come in, remove the children and try to address the situation before putting the children back.
This is before the amended legislation that the chief today has talked about in Nova Scotia, which came in March 1, 2017. Probably around 2010 or 2011, the agency was able, through a cooperative approach with some representatives from the province, to convince the federal government that we were underfunded. I believe eventually one of the individuals from Mi’kmaw Family is one of the witnesses in the Canadian Human Rights Tribunal to demonstrate the case that was brought forward. We were able to get more funding, hire more workers and at that point, it seemed that there was a better ability to begin to take a less intrusive approach to address matters.
The legislation and provincial policies didn’t change. As a worker in the field, I think there was a change in terms of the direction that was being provided. When you get in there, take the time to sit down with the family member. If the mom or dad is not able to look after the child, then take the time to have some discussions. Make some phone calls; find extended family.
Again, the policies that are in place often require that police record checks are completed, that there be no child protection history, that they can’t have a criminal record.
I think it’s in the last seven years, not just five years. When you’re doing those checks and you have an hour to two hours to do it, the minute something gets red flagged or comes up children are being taken into care, instead of having that situation where a worker is sitting and continuing to make calls, track down family.
Now it is very uncommon for there to be a taking into care versus a customary care or supervisory placement with some sort of an extended family or community member. I only state this because I think that’s part of the importance. The legislation is one piece, but how it’s interpreted and acted on in the field is probably more important than the legislation. As long as the legislation keeps things moving forward, I think it’s a positive thing to allow the initiative that’s going ahead in Nova Scotia for the potential for a Mi’kmaw act. We also have the benefit of already having an agency in place that is incorporating the policies.
I know through my employer, we worked together with the Assembly of Nova Scotia Chiefs to try to ensure that we’re meeting the right balance between keeping children safe, but while making sure that we do everything we can to keep them with family and community.
Through this process I tallied up my files last year — I think it was in May — and of the files that I had last year, 46 per cent were supervision orders; 29 per cent were customary care supervisory orders, which means the child has been removed from mom or dad but placed with some other family or community member; 12 per cent were temporary care and custody, where the child has been removed from the mom or dad but of those 12 per cent they were kinship placements. For one reason or another, most likely funding, financial issues, the family chose to go that route even though the child was still placed with an aunt, uncle or grandmother.
Thirteen per cent of the files were non-family/foster-type placements. It’s almost a complete reversal from 20 years ago when I started, where it would have been 75 to 80 per cent were temporary care and custody and 20 to 25 per cent were supervisory orders to almost a complete reversal. Eighty-seven per cent of the files that we had before the courts involved children still placed with family in some capacity, whether it be under supervision, customary or temporary care and custody.
It is important as well and to speak to the funding piece. I know I’m a few minutes over time, but the notice to band is something that was part of the amended legislation that came in, in March of 2017. There’s no associated funding or federal support. It’s provincial amendment. We have varied responses from each of the First Nations in terms of what that means. Some communities are sending someone to court as a representative of the band. Other communities are not. There’s no formal infrastructure funding, education, those sorts of those pieces. Again, the legislation is one piece, but then providing the funding so that the actual service can be provided for the community is also extremely important.
I’ll conclude my comments by mentioning the customary care placements. That was part of the legislative amendments that provides for customary care placements for Mi’kmaw children as an option. When it came in, there was no funding associated with it. Part of the goal, I know in seeking those amendments, was to ensure that there was another option that would allow at that time if a child was placed with extended family under a supervisory order there was no financial assistance provided by the agency. You would still be reliant on the band or other sources for assistance.
The hope was that there would be funding. It took about a year and a half, but it required the province to bring in place an alternative family care funding plan for nonparty supervisory orders where, when family gets a placement instead of foster family, there were funds provided with it. Once that was provided, then the feds will match it. We’re still in that situation where they’re looking — is the province doing it? If the province is doing it, the funds will flow. If the province isn’t doing it, it’s a much more difficult negotiation in terms of getting services in place.
We have things the province doesn’t have under prevention, those sorts of things, where we’ve been able to negotiate funding. Again, the legislative piece is one part of it, and then the actual policies and funding that flow out of that will be the bigger piece in terms of affecting real change.
Thank you. Those are my comments.
The Acting Chair: Thank you very much for all three of you. I would like to open the floor for questions.
Senator McPhedran: Thank you very much for coming to be with us in person. It’s very much appreciated.
I’m struck by the comment that you made, Ms. Cox, about the UN Declaration on the Rights of Indigenous Peoples and wanting to see it inserted into the body of the bill. Could I just ask what it is about the preamble that references the declaration that is not sufficient? Could you help us understand a bit more your reasoning for a specific insertion in the bill as distinct from the reference in the preamble to the application of the declaration?
Ms. Cox: Sure. With respect to clause 18 is where I would like to see the insertion. If we look at 18(1) right after the reference to the Constitution Act, 1982, we’re asking that: “And the United Nations Declaration on Indigenous Peoples” be included. From a legal point of view the United Nations Declaration on the Rights of Indigenous Peoples to us represents a stronger legal footing potentially than the Constitution Act.
It’s just a bolstering and a recognition of that. As you know, we’ve been seeking the recognition of the United Nations declaration for some time.
Senator McPhedran: A supplementary question to that. You’re familiar with Bill C-262 that was introduced by Romeo Saganash and is sponsored in the Senate by Senator Sinclair.
You may also be familiar with the unfortunate reality that partisan tactical delays have made it thus far impossible for us to do our job of fully considering Bill C-262.
Let me take an optimistic note on that and just pose a hypothetical. In the event that before Parliament adjourns for the election, that indeed Bill C-262 becomes law in Canada, would you see that bill as law in curing your concern? Or would you still want to see specific reference in 18?
Ms. Cox: I think, as a lawyer and as an individual who is working in the system, when you’re clear within the document that you’re working in, then it makes it clear what the rules are.
It doesn’t necessarily cure it. If Bill C-262 passed, that would make life a little bit easier for us. There’s no reason why it shouldn’t be referenced in Bill C-92 because we’re talking about inherent jurisdiction.
There’s no reason not to be clear when you’re drafting a document. It doesn’t help when you don’t include as much detail as possible.
Senator McPhedran: Thank you. That’s really helpful.
Senator LaBoucane-Benson: I just want to start by thanking Chief Prosper for your presentation and the reminder that the ability to raise our children is the cornerstone of our humanity. That was a very powerful statement.
You also referenced family group conferencing. In my past life, I was very involved in the training of FGC facilitators as a restorative practice. At my agency, we would have called it a [Indigenous language spoken], a Cree word, [Indigenous language spoken], family reconciliation process. Thank you for bringing that up.
Mr. Morris, I thank you for the practical information of the day-to-day of doing this work on the ground and how important it is. In Alberta we talk a lot about slowing down that apprehension process, not making quick decisions, thinking about it, talking about it and trying to place children in their own families. The statistics you cited are amazing: 87 per cent of children placed in their own families. I applaud that. That’s significant.
My question is for Ms. Cox. I think the amendments you proposed are measured and reasonable. I want you to talk a little more about standing. This was an issue that I saw in this document. Particularly in Alberta, non-Indigenous foster parents currently have no standing. The way this legislation is posed it would elevate non-Indigenous foster parents to have standing in the court process. Can you explain that a little further?
Ms. Cox: There is no doubt — and I think Mr. Morris and I could address this equally — that it is not clear that non-Indigenous foster parents couldn’t have standing. The way that the care provider is defined does not exclude that group of people. They could have standing within a proceeding. People need to understand the more time you need in court, because everybody’s voice has to be heard, the more delay that represents for the children in the placement. Although well-meaning, sometimes non-Indigenous foster parents can be, quite frankly, culturally inappropriate in some of the submissions they make and not trauma-informed. It can cause delays. In the province of Manitoba, because they have that ability to have legal standing in a proceeding, we can learn from that example that it’s not a good idea to do that.
Senator LaBoucane-Benson: One of the other things I have been thinking about in this bill is children who are currently in care and the need for a legal access order. If we really are talking about the importance of family connection, I wonder what you think about having something more formal around families being able to access a legal standing to say, “I want access to my children.” We have many in Alberta, for example, grandparents, who would have liked to take custody and were not allowed to take custody for reasons you have talked about. They have no way of accessing their grandchildren to spend time with them. I wonder about having something around legal access orders. What you would think about that?
Ms. Cox: There are a lot of technical pieces with that go with that. In the province of Nova Scotia, if Bill C-92 passed, we could make our own laws and address a lot of these things. Right now we are bound by the Nova Scotia legislation which prohibits contact post permanent care. If you are permanently in the care of the minister in the Province of Nova Scotia, the judges are not allowed to make any orders for access. The only way we can work with that is to work on cultural connection plans which permit going back and forth between the communities, or we will look at family placement. We will look at approaching the agency or the agency may approach the family member. Perhaps during the initial proceeding mom and dad did not identify a family member but we have now found a family member who is interested in a placement. We will look at terminating that order and placing them with the family member. Some of the tools we use to do that is the family group conferencing, or the Wikimanej Kinmanaq. We will use that as a tool to bring people together to make the plan, to talk about the legal processes and do all of these things. There are options, but they are not in the legislation. We have to work around the system. Unless Bill C-92 passes or our Indigenous laws are recognized by the province of Nova Scotia, we couldn’t do anything that would allow us to have a specific legal access order. We have to work around it.
Mr. Morris: The other piece, certainly in Nova Scotia, is if there is extended family that come to court, they are allowed to come into the court appearance and are not excluded from the process. In my experience in Nova Scotia, that’s certainly not an issue. The only time it really becomes an issue is if the agency is not supportive of that extended family placement. Then they would have to apply for standing to participate in the proceeding at that point. Not by legislation but as a practice, the judges are more than open to having extended family and, in some of my proceedings, members from the community who are invited by the parents.
Senator LaBoucane-Benson: Thank you.
The Acting Chair: I would like to take a moment to acknowledge the presence of teachers and students from Centre Wellington District High School in Fergus, Ontario, the hometown of our colleague Senator Rob Black. The students are learning about Indigenous peoples in Canada and as such, the focus of the trip is learning more about First Nations, Metis and Inuit in Canada along with learning about the Canadian parliamentary system. Welcome to the Senate Committee on Aboriginal Peoples.
Senator Coyle: Thank you for these really helpful presentations this morning. Chief Prosper, my neighbour, Ms. Cox and Mr. Morris. It was such a well-rounded presentation. I think for all of us it was very helpful. It was important to hear of the progress that has been made in Nova Scotia. Both in terms of the concrete impacts of the changes that have been made, as well as the processes that have been put in place that has helped you get to where we are now in Nova Scotia with the legislation, but also how child and family welfare is practised in a collaborative manner. I very much appreciate that. I wish we did have your written presentation in front of us Ms. Cox because I’m looking forward to looking at your fine details.
Chief Prosper, I believe I heard you say you are supportive of Bill C-92. We have heard that nobody here is going to pretend it was co-developed. We understand that, and that’s a flaw. We hope that what comes next will be co-developed. I think that is what we are hearing from you and that is something that we can make a recommendation about. We are hearing that legislation is one thing, but funding is really critical. Education, capacity building, governance, the various things that have to flow after this are very important.
One thing that you said, Chief Prosper, really struck me. You don’t want this bill to interrupt progress that has been made. I have two questions and the first question is about that. Let’s look at both sides of that coin. What is that concern? What is it potentially in this bill that you see that could interrupt the good progress that we are seeing in Nova Scotia? On the other side, how would you see this bill enabling, in a positive way, progress to continue in a way that perhaps wouldn’t be possible without this bill? I am curious about your perspective.
Mr. Prosper: Basically, when I mentioned this bill hopefully not hampering the progress we made within Nova Scotia, there has been quite a history with the province. I must admit that the Department of Community Services, from the ministerial level down, has been cooperative and seeking out a collaboration with the Mi’kmaq within Nova Scotia. It’s that attitude and spirit that has allowed this progress to be made. As it relates to the bill potentially hampering some of the progress as mentioned before, and I think Mr. Morris might be better suited to answer this, but for example, there might be certain problems with respect to notice. We have notice that each of the bands get through the amendments to the Children and Family Services Act. It’s one of the 25 amendments, but it’s not at all clear. I believe — and I look to Mr. Morris on this — that those notice provisions we have under the provincial act, I think this bill provides some uncertainly with respect to the application of that.
More generally, as it relates to, I believe, the enabling aspects of the bill, I think it’s welcome. I think this bill provides a necessary sort of contribution to the dialogue of the inherent right that the Mi’kmaq and Aboriginal people have over children, families and youth. This bill can certainly contribute towards that.
We are looking to have a coordinated approach. There are gains provincially that we have, which we are endeavouring to implement. It goes to the point of: Legislation is in everything. We need that capacity and support to implement those changes, especially at a community level. That bill would act in unison with our gains provincially.
Maybe I’ll look to Mr. Morris or Ms. Cox with respect to the notice provisions and the interplay of those.
Mr. Morris: One of the things when we were reading through Bill C-92 that I think Jennifer touched upon in her presentation is under clause 12. It appears to limit the amount of identifying information that can be provided when notifying the band of involvement.
One of the goals in getting that amendment in the Children and Family Services Act for Nova Scotia was to ensure that the band has an opportunity, especially in a situation where it’s a housing issue — a lack of housing, inappropriate housing or condition of housing — where the band has notification and can reach out to the parents to get in there and start helping to address that right away to reduce the amount of time.
It depends on what clause 12 means in terms of “personal information.” Depending upon how you read it, it almost sounds like you can’t even identify who it is. Maybe I’m misreading it, but that’s going to limit the amount of information that can be shared to ensure the band can step in and perhaps help with that.
Another one is — and it’s not a gain obtained through the amendments — but the mention of foster parents potentially meeting the definition of a care provider under the enabling legislation. The Nova Scotia act, as it’s now written, provides that foster parents are not parties. It specifically says “not a foster parent.” The reason is because they are there as temporary care providers until the family has addressed their issues and have the children return to the home. The last thing the process needs is another party involved arguing against children going home once those concerns have been addressed. Their rights were created as a result of the children being removed and placed with them through a business arrangement, not through family or community connection. It’s one thing if you are a foster parent and a kinship placement; that’s different. That is one of the concerns: It potentially opens that door up. Based upon what we have heard from other jurisdictions, sometimes foster parents become actively involved in these proceedings to try to argue children shouldn’t go home yet. Ultimately, the goal of the proceedings is to address the issues and transition the children home.
Senator Coyle: Thank you. I’ll be very brief on this one.
The other thing I heard you speak to, Chief Prosper — and anybody is welcome to speak to this — is around the progress that has been made with fixing things before they are broken, the early intervention aspect, et cetera. Do any of you see anything in this bill — we are not seeing funding yet associated with it — to do with openings for more support in that area so that you’re having an opportunity to help families and children, as you said? All of us want to redefine what it means to be human, as you said at the end of your presentation — that humanity is reinforced earlier. Do you see that as possible through this legislation? Does anything in this give you more scope for that?
Mr. Prosper: An elder by the name of Tom Christmas from Eskasoni provided a Mi’kmaq word for this traditional practice of fixing or mending things before they break. I haven’t forgotten that. As mentioned earlier by Ms. Cox, we had an elders gathering, which is available on YouTube, and the link is provided. Within those gatherings, you are privy to the knowledge with respect to how change can be made, how change exists and how it takes place within the community.
When I think of this bill and things like family group counselling, which is embedded certainly within provincial legislation, I think we are able to take that further and elevate it under this bill. I see this bill being a mechanism to institutionalize our practices, ways of bringing families together and mending things that are broken or ready to break. I see that as a benefit.
Ms. Cox: Bill C-92 gives us the space to develop our own laws and policies, which will then go to preventive techniques. One example is the customary care. We’ll always want customary care but won’t be able to dictate what the policies are with respect to who can be a customary care provider, the amount of funds families should be receiving and when that is to be offered. Right now, we must follow the provincial model.
Bill C-92, with that recognition of the inherent right, will give us that space to make those rules and develop those preventive tools. We know them; we just haven’t been able to do anything with them.
Senator Francis: Thank you for coming. This is a question directly to the panel. If the choice is this bill or no bill, understanding that such a bill may not come around again for some time, what would your advice be? The government has indicated that they are open to some amendments but time is also running out.
Mr. Prosper: Maybe I’ll begin with that. We realize that no bill is perfect. I believe I heard that on previous submissions that I tuned in for.
There are going to be growing pains. As I understand it, this is the first time federal legislation has been considered with respect to child welfare.
The suggestions we have made to the legislation are strategic. We recognize that, given an ultimatum of a bill or no bill, we are for this bill. With the caveats of funding, transition and the points we have made, because we believe it provides a foundation for us to build upon, certainly within the context of Nova Scotia. That’s what I would add.
Ms. Cox: The question you pose is mostly appropriate for leadership as opposed to folks like me, who are technical. The message we have received is that it’s really important that we have the rights recognition that Bill C-92 provides. We are quite happy with that. We certainly would love to have some funding, too.
Senator McCallum: Thank you for your presentations. I wanted to commend you on all the hard work you have done. Also, your province seems to be so much further ahead than other provinces. I think it’s mainly due to the provincial government working beside you. I’m from Manitoba. The provincial government doesn’t work with the Assembly of Manitoba Chiefs. They are having a very difficult time trying to work through this bill.
Indigenous people have had to be inventive and work around legislation to move ahead. You have certainly done that.
I wanted to look at your progress, how you have your stats and how they have changed now that you have a new dynamic in place and you are progressing. How many children did you have in care previously and compared to today? Is there a decrease?
Mr. Morris: There is definitely a decrease. I wouldn’t have the numbers because when I’m referring back to 20 years ago, I was one of the associates working at my firm. I was working with a lawyer who was responsible for child protection. I wasn’t analyzing it from that perspective. That’s more anecdotal; I know from being involved that the majority of the files I went to court on back then involved temporary care and custody. I don’t have the exact date, but I know it’s in those 10 years, around 2010. I’m assuming it’s around the same time the funding changed to ensure they had the proper work force to provide the work is when I saw the change in terms of, again as the lawyer, the instructions I was getting from the agency when we were going to court. They were more family centred, less intrusive.
I remember that because I kept asking questions. As a lawyer, I’m trying to follow the rules and the directions I have been given. I’m asking why we aren’t doing it the way we always have done it. I started getting the explanations back. That’s where the change was. When I have talked to people about this — I have presented at various places and been out to Manitoba as well — that is part of what I talk about. What seems like slow change and too slow change for so many people, when I started to look at those numbers and some of the changes in the feel of how the agency was approaching those things, it’s a significant change that I didn’t see happening day to day. When you look at where we were 15 years ago and where we are now, it’s a huge change.
I think it changes worker by worker, supervisor by supervisor in terms of how they think and, as a lawyer on the file, how I critically think and ask questions of those workers as they are coming through. It’s not the lawyer’s responsibility to do social work. As anyone who has encountered a lawyer knows, we like to ask questions.
Ms. Cox: We can have pesky lawyers on either side.
Mr. Morris: That is the irony of this. Ms. Cox used to be on the opposite side of many of my files and was one of the people who started to push the agency about 10 years ago. It was one of those things where if lawyers are asking questions, the judges are asking questions, as the lawyer for the agency, I want to have answers. I do not want to appear before a judge saying, “I don’t know why we are doing what we are doing. It is what we have always done.” I want to explain why it’s something focused on what the family and the kids need, how it keeps them safe and it is in their best interest.
You can’t keep children 100 per cent safe from everything all the time. Many social workers struggle with knowing what the right amount of risk is to leave kids in situations. That’s the million dollar question. I have gotten off track. I don’t have stats.
Senator McCallum: It leads to my second question. By the way, I disagree; I think lawyers should be social workers. We would be in a much better place. Thank you for that change. I had to go through the same when I came out of dental school and how westernized my thinking was. It took me 10 to 15 years to decolonize, to go back to my traditional spiritual way of communicating with patients.
With this change and when we look at preventive care, especially when some of the determinants involve the social determinants of health, which include housing, food and security, parenting and prenatal care, those fall outside this bill. Also, so much depends on healing of community members to be able to take back their children. How did you do this in the middle of everything?
Mr. Prosper: Maybe I’ll offer some related comments. I think the committee is getting a certain sense to how we have approached things with government and the relationship that exists, but also internally. We have two lawyers that are typically on the opposite side of an issue. When you extend that to community players, you have the agency, you have Mi’kmaq women’s association and you have health directors. You have some very strong players here that have very strong views about what is in the best interests of children, current practices and things like that.
Some of our discussions were quite active and strong. As I mentioned before, we were able to put our children in the middle, in the centre. There was that recognition that yes, we are here in representative capacities for different entities and things of that nature, but there are certain things we can leave to the side for the benefit of our children. It was that sort of recognition that seemed to permeate throughout this whole process, which allowed this to take place.
With respect to healing, I have often thought of healing. We had a circle involving domestic violence in our community. One of the things that I realized, one of the things that was shared is that when healing happens, it almost has a ripple effect amongst families, communities and eventually throughout the nation. In various aspects of this initiative, one can sort of experience that, see that taking place. I offer that, probably not in full answer to your question.
Mr. Morris: If I can add on, and back to the changes that happened, it requires actions outside of the child protection sphere. One of the reasons we started to get pushed a little more was the health centres in the communities started to get funding to provide more services. As they grew, in terms of the service delivery they had, the agency had to change from its approach, which was to go see a counsellor in at this town over here to, “Okay, you can go to see a counsellor at the health centre in the community.” Not only did the service become more accessible, but perhaps it became less uncomfortable for parents so they were more willing to access those services.
It took growing pains for workers to get used to the fact that we are not going to use the people we usually use. We are going to start working with new people. The growing pains were there to the point now where it’s just an automatic; if the family wants to see someone at the health centre, it’s a yes as opposed to a discussion whereas when it first started, it was the discussion. Without that service being there, we couldn’t be more culturally appropriate in the provision of those services. We wouldn’t have those options that were available.
I think it is important that other fields come forward and push on their end to have that growth so that you have the ability, the infrastructure there in the background to provide that service internally.
Senator McCallum: Thank you.
The Acting Chair: Our time is expiring, but I can’t resist the opportunity to ask Chief Prosper a question. In your remarks, you mentioned that one of the reasons you supported Bill C-92 was because it supports the inherent rights of Indigenous peoples.
I think you were referring to clause 8(a). Just for your reference, I’ll read it. It says:
The purpose of this Act is to
(a) affirm the rights and jurisdiction of Indigenous peoples in relation to child and family services . . .
Chief Prosper, what seems to be missing in that clause is the word “inherent.” The words “inherent rights” do appear in the preamble, but in this particular section it doesn’t appear. Would you support the insertion of the word “inherent” in that clause so that it would read like this?
. . . affirm the inherent rights and jurisdiction of Indigenous peoples . . .
I’m hoping for your comment.
Mr. Prosper: I would agree with that inclusion of affirming the inherent rights of Indigenous peoples and Aboriginal peoples within that particular section. I think it breathes more life into the nature of the right, even though the nature of that right is not dependent upon legislative recognition.
I think it would be a positive change in that regard.
The Acting Chair: Thank you, Chief Paul.
We’re at the end of our time. Thank you very much for appearing. I have to agree with Senator McCallum that your witness testimony today was most compelling.
We’re now set up for the next panel. I’d like to welcome you back to the meeting of the Standing Senate Committee on Aboriginal Peoples as we continue our work on the pre-study of Bill C-92. The committee is pleased to welcome, from the First Nations of Quebec and Labrador Health and Social Services Commission, Richard Gray, Manager of Social Services. Richard is a fellow Mi’kmaw from Listuguj.
From Tungasuvvingat Inuit, Jason LeBlanc, Executive Director; and from the Métis Child and Family Services Authority, Billie Schibler, Chief Executive Officer.
Thank you all for taking the time to appear before us this morning.
Richard Gray, Manager, Social Services, First Nations of Quebec and Labrador Health and Social Services Commission: Thank you for the invitation, senators. First and foremost, I want to acknowledge our Anishnabe brothers and sisters in their traditional territory.
Second, regrets on behalf of regional Chief Picard. He couldn’t make it here today and sends many blessings.
[Editor’s note: Mr. Gray spoke in his Indigenous language.]
All of my relations, senators.
My name is Richard Gray, Manager, Social Services, First Nations of Quebec and Labrador Health and Social Services Commission.
In my previous life, I have been a director of social services for my community of Listuguj where I was practising protection services for many years as the director. I also had the privilege and opportunity to negotiate a delegation agreement with the Quebec government at that time through the child and family services Directive 20-1 policy.
I’m also currently a member of the legislation working group that oversaw working with the ISC on this legislation piece, and the alternative national advisory committee member for the AFN and looking at the implementation of the CHRT decision with all the parties.
This brief presents the joint point of view of the Assembly of First Nations Quebec-Labrador, our organization, the First Nations of Quebec and Labrador Health and Social Services Commission.
These two organizations have been working together for a long time to ensure that children and family services in Quebec are delivered in a way that respects the rights and culture of children and that they ultimately come under the authority of First Nations. The brief concisely introduces our organizations and it outlines the institutional and legislative context in which First Nations children and family services operate in Quebec. I’m going to give you a bit of a Quebec context.
It also suggests some legislative improvements which are the result many initiatives conducted by the First Nations with the Quebec government. The additional gains that could be made if Bill C-92 were passed are also addressed.
First, a bit of a description of our organization. The AFNQL was created in 1985. It facilitates periodic meetings between the Chiefs of 43 communities. Their mission and objective is to affirm and respect the rights of First Nations, recognition of First Nations governments and increase financial autonomy of First Nations governments. First Nations of Quebec and Labrador Health and Social Services Commission is a non-profit organization and we’re responsible for supporting the efforts of First Nations communities in Quebec to plan and deliver culturally appropriate, preventive health and social services programs, amongst other things.
Our mission is to support First Nations in Quebec in achieving their goals in terms of health, wellness, culture and self-determination.
The context in terms of child and family services in Quebec. In Quebec we have 15 child and family services agencies that are providing protection services to 19 First Nations communities through what we call provincial delegation agreements. They have funding agreements with ISC. We also have three Quebec institutions, formally called youth centres and now called Integrated Health and Social Services Centres, that offer protection services and serve eight communities. In total, 27 First Nations communities also provide prevention services to their population through funding agreements reached with ISC. In 2009 and 2010 we were one of the regions chosen to implement prevention services, I believe after Alberta, Saskatchewan and Nova Scotia. All First Nations communities in Quebec have prevention services.
Most of the communities being served by the provincial institutions which I mentioned earlier are in negotiations to take over delivery of these youth protection services from Quebec. In Quebec, with the exception of the communities covered by an agreement — when I say an agreement, I mean the James Bay and Northern Quebec Agreement, the modern day treaty committees, the Cree, Inuit and Naskapi. With the exception of those communities, annual spending on child and family services is in the range of $100 million to $104 million, half of which is spent on placements within the Quebec region.
The forced implementation of provincial child protection services under colonial policies only exacerbated the socioeconomic problems and perpetuated the loss of identity in our region. Several studies have emphasized the over-representation of Aboriginal children at all stages of the youth protection intervention process. The most recent work on this matter indicates that this over-representation begins at the child assessment stage where the rate per 1,000 children is 4.4 times higher for First Nations children than the rate of non-Aboriginal children.
This disparity increases with each stage of the process, be it at the placement stage, where the rate is 7.9 times higher for First Nations than non-First Nations, or the recurrent stage. Recurrence is where a file is officially closed and then reopened. That rate is 9.4 times higher for First Nations than non-First Nations. As you can see, there are significant disparities between First Nations and non-First Nations when you’re looking at the application of the Youth Protection Act.
Neglect or the risk of neglect are the leading causes for children coming into the care of the youth protection system.
I’d like to get into the specific actions to promote the recognition of First Nations jurisdiction in child and family services.
For more than 30 years the specific realities of First Nations have often been pointed out through various consultations with Quebec. In 1992, we worked with Quebec on a famous report called the Jasmin report which looked at the application of the Quebec Youth Protection Act after 12 years of coming into force, roughly in 1980.
It reminded everybody at that time that the heart of the system is the family system. It’s the first cell that surrounds and protects the child. The cell is attached to the extended family, the community and Nation, and relies heavily on culture.
At that time, we were telling the provincial authorities, “Look, our families are the solution to our problems.” The families and the communities are the heart of who we are. We subsequently participated in another report that we produced ourselves with the federal and provincial governments in 1998 called Telling it like it is. At that time we recommended that the provincial and federal governments recognize the jurisdiction and competency of the councils to manage and control their own services and develop their own systems for assistance and protection of children and youth.
These services are at the heart of the areas of competency and autonomous Aboriginal governments. As you can see, we’ve been talking about having First Nations taking on jurisdiction in child and family services for many decades.
The AFNQL views Bill C-92, which recognizes jurisdiction in relation to child and family services including legislative authority, as an important advancement for First Nations.
Regarding the next section in terms of the Quebec youth protection context and relations with First Nations, you can see that Quebec has basically been using their model, the Quebec youth protection model as the one size that fits all. They’ve never really taken much time and energy to look at advancing the inherent rights of First Nations to self-governance and self-determination. It’s always been that you have to use the Quebec model when you’re looking at delegation services.
Recently, Quebec has — I applaud them, they have come forward with some good and important amendments to their laws to try to improve the application of the Youth Protection Act amongst First Nations and Inuit. None of these changes go as far as what is being proposed by Bill C-92. Which is very positive.
Among the recent changes, one of the amendments to the most recent Quebec Youth Protection Act was Bill n°99 that looked at the importance of culture and the preservation of ancestral customs and traditions, as well as the desire of First Nations organizations providing child and family services to participate in all stages of the delivery of child and family services.
Certain provisions of these laws are the results of collaborations between the nations in terms of working groups where we work very closely with the provincial government.
There was another important amendment that recognized the effects of customary adoption. I emphasize effects of customary adoption. We weren’t asking for Quebec to recognize customary adoption. As far as we’re concerned it’s an inherent right. We’re not asking them to recognize that, but we were asking them to recognize the effects. If there’s a customary adoption that happens, what are the necessary changes within the Quebec law that would have to be made or changed to accommodate that customary adoption.
The AFNQL views Bill C-92 and the principles of the best interests of the child, culture continuity and placement of Aboriginal children as complementary to the work already started with Quebec. As I mentioned earlier, we’ve worked extensively with Quebec in terms of pushing and promoting them to make some fundamental changes that were needed in terms of improving the Quebec Youth Protection Act vis-à-vis Bill n°99.
It should be duly noted that, in general, the First Nations communities in Quebec are already focusing on prevention services in a priority fashion over the involvement of protection services. Bill C-92 will help ensure that this aspect is considered during the transition period.
The AFNQL views Bill C-92 as an opportunity to address provincial border issues. As you know, First Nations are not the ones who created these provincial borders. A lot of our brother and sister communities are on the other side of provincial borders. If you look at an issue of customary adoption between nations, or inter-nation, provincial borders and conflicting jurisdictions could cause a lot of heartache and frustration for everybody involved. We see Bill C-92 as an important element that could address that fundamental problem. The AFNQL intends to organize meetings with its First Nations chiefs and regional organizations to develop transition plans to address these issues once Bill C-92 receives Royal Assent.
The AFNQL will continue to work with the provincial and federal governments to promote reaching coordination agreements under Bill C-92, particularly in terms of planning and transitioning. The First Nations of Quebec have implemented a health and social services governance process, as well. This process is supported by a tripartite committee whose mandate includes following up on priority issues such as Bill C-92 so that jurisdictional issues are analyzed, the necessary changes made in a timely manner and to ensure that, ultimately, the reality of First Nations in Quebec are taken into consideration.
In terms of improvements to the bill, a funding principle must be added to the text of the agreement. I think you’ve heard from many others that there has to be some inclusion of a funding principle rather than having this mentioned in the preamble.
Another thing is substantive equity and Jordan’s Principle. If we look at the Youth Protection Act in the Quebec context, it offers no equivalent to Jordan’s Principle. This is an area of which Bill C-92 could force a province to change its practices. The director of youth protection would be subject to the requirements of clause 9(3)(e) within Bill C-92 or as part of its work with children and youth in Aboriginal communities.
Regarding a First Nations, Inuit and Metis commissioner of children and youth, accordingly, we feel it is important to provide in Bill C-92 for the creation of an independent national authority whose role includes supporting the implementation of the legislation. The authority could take the form of a First Nations, Inuit and Metis commissioner of children and youth, whose role would include following the evolution of the implementation of the legislation in the provinces and reporting annually to Parliament.
The United Nations Declaration on the Rights of Indigenous Peoples is another area where we’d like to see some potential improvement to the bill. In order to give full effect of the UN declaration, Bill C-92 should refer directly in the body of the bill and not just in the preamble. That’s another area.
In terms of concluding, the Assembly of First Nations of Quebec and Labrador and the First Nations of Quebec and Labrador Health and Social Services welcome Bill C-92 and recognize that it is an important milestone in the relationship between Canada and First Nations.
Thank you very much. That concludes my presentation. You have the brief before you in French and English. Electronically, it’s been shared.
The Acting Chair: Thank you, Mr. Gray. Mr. LeBlanc, please go ahead.
Jason LeBlanc, Executive Director, Tungasuvvingat Inuit:
[Editor’s Note: The witness spoke his Indigenous language.]
I’m originally from Labrador Nunatsiavut. “Tungasuvvingat Inuit” is “a place of welcome for Inuit” in its literal translation in Inuktitut.
I first want to acknowledge the unceded First Nation of the Algonquin territory and thank them for their hospitality. I also sincerely thank the Senate for your interest in hearing our unique perspectives that I can share with you today. It’s an honour and a privilege to carry the voice of Inuit away from home in this circumstance.
For TI, Tungasuvvingat Inuit, a quick overview is warranted. I also want to preface my comments by apologizing. The package and documents are submitted to you but, unfortunately, were not available for you to have to read along. You will have them for your review beyond this session.
Tungasuvvingat Inuit is an Inuit-led community-based organization that delivers supports and services throughout an individual’s life. Our work is led by Inuit Qaujimajatuqangit values and principles, and is focused on creating Inuit self-determination and resilience.
We are a provincial organization with direct services in Ottawa and Toronto, but to the point of this federal legislation, we’ve been supporting a network of Inuit trying to make positive change in their respective communities across this country in the many gateway cities to our traditional homelands: Yellowknife, Edmonton, Winnipeg, Toronto, Montreal, Halifax and St. John’s.
It is that scope of experience and voice that we want to share today, as we have a role in supporting this message. Two of the reports you have — 2005, a report, One Voice, where we gathered Inuit from all of those cities, as well as federal government employees and our national political organizations, Inuit Tapiriit Kantami and Pauktuutit Women’s Association, to create a snapshot of the state of affairs for Inuit away from home.
That was followed up by another report you’ll have: National Urban Inuit Community Dialogue: Supporting Urban Champions in 2016. That was supported by the Urban Aboriginal Strategy funding we secured to help address and articulate why Inuit are not thriving, succeeding and achieving the same access to supports and services in cities as were some of our First Nations and Metis fellow Indigenous people.
Those reports frame the historic and current gaps, and the needs of Inuit residing away from traditional communities — gaps and needs we feel will be exacerbated under this proposed legislation.
I also included a recent Nunatsiavut news article in your kit. It’s a bit of a retrospective of 20 years of the territory and creation of Nunavut. In there are quite a few reference points to population migration patterns, the needs of supporting Inuit away from the territory and those who go back, and the role that Tungasuvvingat Inuit is recognized as having played over the course of those 20 years, although we’ve been around for over 30 as an organization.
To understand the impacts of child welfare systems on Inuit, we must first understand the history of Inuit and the Canadian government. Prior to contact and, as we know, interference by the Canadian government, Inuit were independent, self-sufficient and thriving amidst the harshest environments of this world. We had systems and natural laws in place that governed all manner of behaviour, living harmoniously to ensure survival. Harmony is a true core tenet of Inuit values. Those interact in an Inuit qaujimajatuqangit togetherness way.
Inuit elders in Nunavut have identified a framework for IQ, Inuit qaujimajatuqangit, which Inuit have always known to be true. It is grounded in four big laws or maligait. All cultural beliefs and values are associated with the implementation of this maligait, ultimately contributing to living a good life or being inumarik, a good Inuk, which is described as the purpose of being.
In the materials — again, apologies that you don’t have them in front of you — we present what is now documented as a historical chart of the loss of self-control, self-determination and authority in as recent as the last 100 years. Then the upward trend starting in the 1960s with the formation of some of the Inuit structures like the Inuit Tapirisat of Canada, which was ITK when it was formed, and taking back of some form of how we are leading our own way.
I reference that because it is unique for Inuit as opposed to some of our First Nations and Metis populations, which have had a longer period of time to rebound from the equally horrific impacts of colonialization and Canada’s policies. In the sense of time and frame, as to where we are as a community to address and participate in this proposed legislation, it’s very relevant.
Despite the fact we have gradually climbed back and created some governments — in my case, the last modern-day treaty settled in Nunatsiavut is a self-government — we still have a gap and a significant barrier for Inuit outside of Inuit Nunangat being our homelands. This jurisdiction of child welfare will be particularly highlighted in that area.
Those four modern-day treaties have resulted in organizations that comprise Inuit Tapiriit Kantami, ITK. They are the point of federal government engagement in this distinction-based world and in this new lens that the federal government chose to take of dealing with all three nations independently and distinctly.
I believe there has been an oversimplification in taking that approach to meet the needs of all Inuit.
I also want to take about a fifth region, which might draw the ire of some people. I think the point of these Senate committees is to talk about what we know to be true ourselves, even if it is not historic knowledge. Current day, there is an unofficial fifth region for Inuit: non-Nunangat Inuit region. There are Inuit who no longer live in their homelands, not by choice, often. Some choose to leave. Unfortunately, many Inuit never choose to leave and most would want to go back, but that’s not available to them.
In the 2016 census, when we look at those who self-identify with Inuit ancestry, as many as 40 per cent of Inuit now reside away from Inuit Nunangat. There are a growing number of Inuit who are not connected to one of those four land claim regions. In addition to having those population patterns, we now we have a barrier in connecting to one of the four registries which are the only ways to bestow Inuit identity upon Inuit who may have been raised in systems of care or sent away from traditional lands not by their choice.
This fifth region is not recognized by Inuit leadership and land claim organizations. However, these Inuit fully consider themselves as Inuk, with all the cultural traditions and rights inherent to that identification. The current federal government approach of a distinction-based relationship with Inuit is built upon the false belief of Inuit singularity. There is a broad diversity across our four traditional regions and also across our southern Canadian cities.
To this end, we have submitted a document outlining the varying benefits afforded to Inuit dependent on which of the land claims they are recognized by. Of course, for the many Inuit not connected to one of their four birthright organizations, there are additional barriers to receiving support. As that other document you have in your package outlines, as we look across Inuit Nunangat, we have shareholders in theInuvialuit Regional Corporation. Its definition of its beneficiaries are literal shareholders, all the way across to the east. We have self-government that actually has represented entities, Canadian constituency officers that sit in our legislative meetings, representing the needs of Inuit away from home. This is a more progressive approach to dealing with that.
We have great variance. The singularity of Inuit away from home is a great myth. I also had a couple of charts, which will be harder for you to see, but you will see when you get the chance. It really speaks to for importance of looking at self-identity. Identity politics in 2019 is convoluted for anyone, regardless of Indigenous heritage. In our case, it’s fraught with a lot of concerns.
When you look at singular identity, almost everybody in Nunavut, for instance, claims singular identity. This is not very helpful as a visual so I will do my best to explain it. The proportion of Inuit who identify as being of ancestry increases dramatically when you leave our home communities. If you are Inuk by genetic, blood quantum — although that doesn’t get measured in our population — it’s irrelevant. What is your comfort to claim that you are Inuk if you never lived in the North, if you don’t speak Inuktitut, if you don’t know your culture, yet you still absolutely are Inuk. We see a higher rate of that away from home.
In fact, in Ontario, we have in the census numbers — which we know are fraught with some frailties and do not capture all of our people, that’s for sure — more Inuit living in Ontario than my home region of Nunatsiavut and the Inuvialuit Regional Corporation claim together, near 7,000 out of 70,000 in all of Canada. We know there are significant populations in all those gateway cities that I referenced.
I also have a chart here that shows the trend from 2002 up to 2016. It has escalated and continues to escalate. There is, unfortunately, no near and present sign of that slowing down. Doing our work in Ontario, largely, but supporting work around the country, we have observed the realities of our community members. We believe ancestry and/or dual identities is a more realistic approximation of population numbers due to the pressures of identity politics.
For the past several generations, many Inuit have been sent away from homelands not by choice but due to service gaps in our home communities. This bill proposes there will be an identifying with community process. This is inherently challenging for a population with varying levels of connectivity and recognition from their governing bodies, let alone the added layer of identifying with a service provider like Tungasuvvingat Inuit. This is not a representative body in a governance matter. We provide services. I am here in an advocacy role. We do not represent, as our four birthright organizations or ITK would, Inuit. Over the last 20 years, this population has continued to escalate, as I mentioned. The 2016 census indicates not only an increase in where Inuit are, but you can see the rate of population growth dramatically — three times the amount of population growth rate for Inuit away from home communities as opposed to Inuit Nunangat communities.
This federal legislation, which has been largely brokered in a dialogue with an Inuit Nunangat lens with Inuit Tapiriit Kanatami, has a frailty for a large proportion of our population who are going to intersect with this population away from home.
There are significant jurisdictional challenges, the high proportion of transient population for services. However, a report that is also your kit, which we worked on with the St. Michael’s Hospital, Our Health Counts Urban Indigenous Health Database Project. We surveyed over 500 Inuit in Ottawa. In that notion, we had 56 per cent, a majority of Inuit who claimed Ottawa has primary residence, as home. This misnomer that there are a lot of Inuit here but they are constantly going back and forth and getting services and going home again is not true. A lot of people do go back. Most everybody wants to go back. A lot of people wind up staying. That puts service pressures on organizations like ours and the many other Inuit organizations trying to good work in the South.
Also in that report, you will see some statistics around the holistic social determinants of health aspects, which I’ve heard you talk about and I am glad to hear you are seeing the connectivity to this act. One of the aspects around well-being, including intersections of child welfare services, found that a majority, 56 per cent of Inuit, referred to Ottawa as their home, and 38 per cent having involvement with child protection services. Thirty-eight per cent of our population living here in Ottawa. Astronomical, unacceptable levels. Shockingly high.
Through this dialogue with our children’s aid society, we know this continues to be a highly disproportional number of Inuit children and families interacting with the social service societies compared to other Ontarians. I have a couple of statistics which were shared with us by our partners at the children’s aid society. These numbers are also going to be shocking. Only 30 per cent of agencies are in the system in Ontario that collects this data. We have 130 Inuit children involved in the CAS currently. That is missing; only the remainders are unknown; 10 of the 12 Indigenous agencies, we don’t know how many Inuit children are intersecting. For 11 of the 37 mainstream child aid societies, we do not have that dataset. With only 30 per cent of the agencies not in the system, we already have confirmed 130 Inuit.
That also doesn’t address the barrier.
The Acting Chair: I have to cut you off at this point to give enough time for questions. Any wrap up comments?
Mr. LeBlanc: Yes. I would quickly loop back to the comment at the end about recommendations from that report, which I think speak to how this can be better. In this report, we talk about providing adequate resources for the expansion of Inuit-specific programs to address the harmful impacts of residential schools, forced relocation and disproportionate family disruption by child protection agencies on Inuit in Ottawa and throughout Ontario. Lastly, recommendation 14, local child protection agencies work with relevant Inuit community services to develop Inuit-specific and Inuit community-led child protection services and protocols, which link to the legislation. My apologies for running long, senator.
The Acting Chair: Thank you. I will now turn the floor over to Billie Schibler, Chief Executive Officer of the Metis Child and Family Services Authority.
Billie Schibler, Chief Executive Officer, Metis Child and Family Services Authority: Good morning.
[Editor’s Note: Ms. Schibler spoke in her Indigenous language.]
I would like to acknowledge the traditional territory and land of the ancestors on which we are gathering. I am a Metis woman from Manitoba. I also follow my traditional ways of my Ojibwa and Lakota people. I want to begin by telling you a little about myself because I think it adds context to my presentation. I think you all received a copy.
I suppose in many ways, I was blessed to have been able to live with my mother.
My mother was 13 when she had me and it was at a time when there was very little support for young single mothers. I have been able to look at life and my career through the context and the eyes of what it would have been like had I not had that opportunity. I’m very welcoming of changes in legislation at the federal level.
My background is as a social worker. I have been a foster parent for over 30 years. More than 48 children have been through my home. I’m currently caring for one of my grandchildren, who is now ten years old. I have had him since he was eight. I lost one of my brothers through the onset of the Sixties Scoop. We didn’t reconnect until we were in our 30s. We have learned a great deal from each other’s experiences, what we understand about the child welfare system and what it has meant in the history of our families and our people.
I’m one of the founding members of Gaa Na Da Maa Waad Abinoojiiak Council, which is the Grandmothers Protecting our Children Council in Manitoba. I was also the first female Indigenous legislative-appointed children’s advocate in Canada.
In Ontario, I also led a child welfare system agency up in James Bay. I know what it’s like to work off and on reserve. I know the barriers that we face in the work that we do.
In Manitoba, for those of you who do not know, our history is very deep and entrenched in a lot of pain. We are Treaty 1 through 5 in that province. We have also had a long history of unclaimed struggles as Metis people. We now have a strong Metis leader who has brought that to the fore in a lot of negotiations on a federal level. We are very pleased about that.
We have the largest number of children in care in Manitoba per capita than any other province. Our Metis child welfare system is part of a devolved system that happened back in 2004. Please, if you know all of this, let me know so I don’t waste my seven minutes. It was a devolved system back in 2004 that came as a result of the Aboriginal Justice Inquiry and recommendations to look at a completely different type of mandated service that recognized three Indigenous authorities and the general mainstream authority.
What ended up occurring in that, as I note in my presentation, was the Inuit population in Manitoba was small and it did not receive its own distinct authority. It was attached to the Metis. We welcomed that as it was very beautiful, but we are not experts in that culture so it did not make sense. In some ways, I see it as a disservice to the distinct culture.
Currently, I’m the CEO to one of the four authorities, the Metis. We have two agencies that cover the entire jurisdiction of Manitoba. We don’t just provide services to Metis children and families and Inuit; we provide services to anyone who chooses us. The only time that people move back to their culturally appropriate authority is if their children are being made permanent wards. While I note that, it’s important to know that we have currently 1,275 children in care under our Metis system. Not all of those were made permanent wards under our system. They came to us at a time that they were being made permanent wards through the courts. We accepted responsibility as the culturally appropriate authority for them.
It’s very to undo a history of child welfare services that were not culturally appropriate to begin with. When we receive them, that severing in that family has already occurred and is being sanctioned through the courts on a permanent order.
That brings me to my presentation. I’ll try to make it as brief as possible. It is not an academic presentation. It is one where I felt that I wanted to acknowledge, first, the hard work that the federal government and our Indigenous leaders have done in bringing this together, because this is history. This is amazing. We have waited a long time. We want to ensure that when this is accepted that it’s done well and done right. I think one of the main things I also want to acknowledge is that we, as Indigenous peoples, have long awaited this.
I don’t have to go through some of the lurid details of the history of our people in child welfare. You are seeing the numbers. You see it across the country.
I also want to commend the preamble that exists in Bill C-92. It clearly identifies and recognizes the history and true issues that exist for our peoples. Most importantly, it acknowledges the significance of working together to accept and address the Truth and Reconciliation Commission’s Calls to Action.
I’m bringing forward several questions that I’m hoping the Senate committee will consider as you review the need for this bill. We know the history of our Indigenous peoples. We know what that looks like with residential and days schools, the Sixties Scoop, Missing and Murdered Indigenous Women and Girls, and the increasing number of Indigenous children in care across the country. We know the effects of these tragedies have existed for decades and centuries.
How do we undo these effects and how long will that take, considering the trauma and impact from racism, addictions, mental health, a high number of suicides, homelessness, non-sustainable reserves and traditional lands, family and community violence, gang affiliation and over-representation in the criminal justice system, fragmented family units and a disconnection from land, culture and identity that continues to be inflicted upon our people?
The current mental health of Indigenous peoples and the escalating addictions crisis which we are seeing everywhere are further symptoms of generational pain and the blood memory from trauma. We are still living out these effects. How does the child welfare system move from a protection mindset and practice? If we recognize the truth is the entry place of reconciliation, what brings us to reconciliation beyond that first step of telling our truth? If we say no more Band-Aids, reveal to heal — that it must be recognized the reveal is the truth of generational accounts of government policies and historic wrongdoings. How do we move to reconciliation without a focus on healing and what does healing look like?
From our own individual value base, it may look very different. Is it an apology? Is it a residential school payout? It is changes in legislation? Can we agree that healing is the process to become healthy? It isn’t a one-size-fits-all, as we have heard today from others. The definition of good health is the state of being free from illness and injury, which is trauma. Healing is the purging of the emotional pain of that trauma — generations of trauma. Healing and the anticipated transformation needs to be recognized as a journey. Individuals need to feel safe in order to reveal their truth and release it. This does not happen overnight.
It needs to be offered through positive-solution planned options that support healing. In fitting with Jordan’s Principle, there needs to be jurisdictional accessibility to these services and accountability and support from each level of government for the funding and provision of these services.
There needs to be a clear distinction and agreed interpretation as to what is understood as the best interest of a child.
Who determines this? It’s mentioned inside the bill. How much weight is given to identity, culture and belonging when determining best interest? In Manitoba, it’s written in our legislation but how it’s interpreted is very different. We have courts and judges who look at these matters in a very different way than our Indigenous services.
We have to live with those results. But that is not going to change history.
How will this new legislation affect the intake services that exist in each province and that are shared with non-Indigenous services? How will our families be screened for services? How will Indigenous Child and Family Services be notified of our families that are entering into the system? There is now no notification. In Manitoba, it’s based on whatever authority a family chooses to be serviced by. Sometimes that is the one that is closest to them, geographically. Sometimes it’s one that they have for generations been a part of, so they know it. Better the devil you know.
Under our Métis Child and Family Services in Manitoba, we have begun this healing journey with many of the families we serve. We have the unique option of services that are designed to preserve families, help them to safely purge and heal their pains from trauma, and help them remain together as a family unit as they go through their healing, with strong supports. We currently offer our live-in family enhancement, our life program with the philosophies and practices where we foster the entire family. The children are not separated. I can’t begin to describe what it looks like when you see the trauma of separated children and their parents. It’s trauma that will take decades to undo. Sometimes it never happens, and it goes into another generation.
We have our Metis Life Long Connections Program that brings the children in our care back through reunification and preservation. We search high and low, and go into other provinces and territories, looking for healthy family members who can be connected to these children so that they know their identity. They not be able to care for them. At least they make a commitment. We do ceremonies to do that so these children know they belong somewhere, inherently.
We are working on an addiction wraparound service that prevents the separation of families as they heal together. The majority of the intakes occurring in Manitoba right now are happening around addictions, family violence and mental health issues that are all related to addictions. The remedy for that, as it’s been practised over the decades, has been to separate the children, keep them someplace safe and send the parents off for treatment. You can’t make a family healthy and heal when you tear them apart. We need to try to find safe solutions to keep families together and help them through that journey.
We know that raising children in the child-welfare system is not the answer. We know the outcomes. They are not successful, and they aren’t happy endings. Child welfare is only one service. It needs to be the connection and support through seeing similar legislation in changes related to health, justice, education and mental health. These related services cannot continue to address the same issues in the same increasing numbers, with little evidence of success. None of these services can work effectively in the silos as standalone services.
Most important, none of these other services can be effective with our families without their acknowledgment of our history, the truth, trauma and healing journey toward reconciliation. We all need to change together, collectively, if we want to see a different future for the coming generations. We need to ask ourselves if what we are doing is good for the children. Meegwetch for your time.
The Acting Chair: Thank you, Ms. Shibler. We only have five minutes left in our session. I will take the prerogative of asking the critic and sponsor of the bill to ask questions first.
Senator LaBoucane-Benson: I have questions for every single person. I’m so grateful for your presentations today. I’m going to ask one question, because I understand we are running out of time.
Ms. Schibler, 10 years ago, I did a PhD on historic trauma, healing and building resilience. A lot of what you are talking about speaks to my experience. We just finished a video on what Indigenous children in care need to heal. I’m happy to hear about the current historic trauma-healing programs you have in place. Do you anticipate Bill C-92 will enhance your capacity to provide historic trauma-healing for families — it’s not just about children, but entire families — or do you see it detracting? Where do you see this bill coming in on that kind of work. It’s not just about protection; this is really about healing.
Ms. Schibler: I agree this is not rocket science, and this is not new; this knowledge has been around for a long time. What I’m hoping will happen with this bill is that there will be some legislative changes that say all of the services being provided to our families and children have to work in unity and that we can’t just rely on the child welfare services to make families healthier and better. The children can’t be serviced without their parents; the parents likewise.
The reason I presented this way and asked these questions is because, again, it’s not just about a piece of legislation. It won’t answer what we know exists. We need to really look at this strategically and say, “What will this legislation do? What does it provide? What it will offer to be able to do things in a very different way?” That’s the intent.
Senator LaBoucane-Benson: Are you saying that maybe the coordinating agreements referred to could not just be between child services and First Nations that want to occupy the field, but that they might also include justice and education — coordinating agreements that really breathe life into this prevention and intervention from the perspective of healing?
Ms. Schibler: It has to be. We know correction facilities currently hold a lot of our sons and fathers. It’s the same with mental health and addition services. Unless they work in coordination through similar legislation, we’re not going to get there. We can’t just heal a portion. It has to be a holistic approach.
Senator LaBoucane-Benson: I’m picking up what you are laying down. Thank you.
Senator Patterson: I thank all the presenters. You have obviously all had great experience and commitment to what you are doing.
I want to direct my question to Mr. LeBlanc. It’s related to Inuit in the South. Can I just clarify what I believe I understand; namely, that ITK has asked Tungasuvvingat Inuit to take responsibility for dealing with Inuit children outside Inuit Nunangat in the South — in Ontario and elsewhere. Is that correct?
Mr. LeBlanc: It’s under the CYFSA, the new act. As one of those jurisdictional matters, there has to be a representative entity listed. As we are a service organization, ITK that is listed in the act as the community. They have designated Tungasuvvingat Inuit upon their behalf to act under the Ontario legislation.
Senator Patterson: Okay.
The federal legislation we are here to study today talks about a role for an “Indigenous governing body,” and the bill defines it as:
. . . a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982.
You have stated clearly that you are an advocacy organization, not a rights-holder. You have criticized the bill for giving a one-size definition of Inuit identity; you called it a singular definition. Do I understand, then, that Bill C-92 doesn’t really recognize a role that you have been asked to take on in Ontario under provincial legislation, and therefore the definition is unduly limited in Bill C-92?
Mr. LeBlanc: I appreciate your point of consternation on the language use here. I think there is a gap. I think part of the gap is that, for example, we spent five years co-developing the CYFSA, other Inuit organizations and First Nations and Metis.
That led to a place where we engaged ITK with us on those dialogues with ministry officials and the minister of the day herself.
Over the course of those years we built a place where we could broker that relationship to say we can play this role for you.
In fairness, there’s a lot more behind that acknowledgment that we are still trying to unpack. In fact, our role in the CYFSA is kind of a canary in a coal mine for Bill C-92 in terms of what those square peg, round hole situations which we’re running into right now are. How do we effectively act on behalf of ITK when it is required to reflect four unique voices from four unique land claims, self-governments? The environment in which we work in Ontario, we are not a First Nation. We are not a Metis self-government. We are not eligible for band service funding where others come under the human rights tribunal awards. We are constantly trying to navigate what this means. We are breaking trail. This is every day, breaking trail trying to make things work.
We’ve done it over the course of many years in a collaborative environment. I feel part of the gap in Bill C-92 are those consultations, primarily through an Inuit to Crown partnership lens not being as rich as they could have been with the added voices of Inuit away from home who work in those jurisdictions and who can convey the reality of Inuit who are away from home and their disconnect from their own organizations.
A quick instance, if an Inuk has to identify with the community, are they going to want to identify with ITK or even TI? Or will they want to identify with one of their four birthright organizations? But there is no connectivity to those agencies in Ontario for them on a daily basis. It’s much worse across the other jurisdictions.
Ontario is leading. The Ontario government has done a good job of collaborating with us. There’s much less capacity and trail broken in other jurisdictions that this legislation will overreach.
Senator Patterson: It strikes me as quite amazing that you have uncovered the high percentage of takeup by Inuit living outside Inuit regions, at least in this province, in accessing child protection services. Their numbers are growing. The demands on child protection services are also very high. You don’t even have the numbers, as you said, but what numbers you have shows a shocking proportion of the population.
In criticizing the bill, which I guess is my job, I echo what Ms. Schibler and Mr. Gray said, that this is, in principle, the right way to go and a light needs to be shone on these issues. It seems to me that changes are needed to accommodate the Inuit in the South.
Mr. LeBlanc, what have you recommended we do to improve the situation and fill some of these gaps? You talked about a protocol with child protection agencies. That doesn’t need to be done through the act, I guess. That could be, perhaps, an observation. You also talked about funding. Could you clarify that as well, the funding recommendation, and if there are any other fixes to the bill that you’d recommend? I know you’re not coming here as a legislative drafts person. It seems to me there’s a hole in the definition here, or there’s a narrowness to the definition that wouldn’t accommodate the work you’ve been undertaking for five years.
How can we respond to your concerns in our report or perhaps in amendment to the bill?
Mr. LeBlanc: Inuit are marginalized within the most marginalized Indigenous population in Canada. We are vulnerable at a whole other level. My critiques are specific to Inuit, but I think they can be amplified for First Nations and Metis. I reiterate the concern around primary action of defining best interest of Indigenous children. That has to be grounded in connectivity to culture and family. It cannot be secondary, be a nicety, be seen as what is important for them but not for the law. That has to be a primary driving force of identifying wellness in our children.
The notion of funding addresses the fact that we are expecting systems to change. Unfortunately, systems tend to change when money moves. I think if we want this legislation to last beyond a government’s agenda, whether it’s the same government or a different one, is irrelevant. We need to start changing how the money flows to the community, to places where they will make that identification process through the lens of Inuit, First Nations or Metis people. The other issue which was raised by Dr. Blackstock around the jurisdictional quagmire is very much apparent in our work with the territory and with the fact that southern jurisdictions are often seen as a service provider to our territories and northern provinces where there’s a deficiency in services.
There was a question I heard earlier, if the choice is this act or no act, my reflection was that we all know a renovation is more expensive than a rebuild or a new build. I also question the idea that if this government is doing things differently and wants to be different, why are we sitting here saying it’s better than nothing? I think the purpose of this is our children and families deserve the best opportunity to succeed and repeal back those very many historic and current day disenfranchisements and negative aspects of colonialization that we’re trying to overcome.
This legislation has to have teeth. I have heard it called a framework legislation and about change, but that assumes the will to make change. In every jurisdiction, we are seeing very different levels of will to make that change happen.
I think if you align some funding in the sense of making it definitive, systems will adapt and change. If it’s left to someone’s opinion or will to listen to the spirit of the law instead of the letter, we will be sitting here looking at negative outcomes for all children in Canada, not just Indigenous children. The other question is, why is this not for every population that goes through child welfare services? The statistics bear it out. These systems are not effective for all youth and families.
There should be some way of unifying. I like the idea of a jurisdictional unification of minimum standards. We need to look at ways of not thwarting the progress made in some jurisdictions, while at the same time creating space for others to come along. If you change the funding allocations and assign money to this, it may do this.
The Acting Chair: Colleagues we are out of time. Thank you very much to our three panellists. You’ve added three distinct, unique perspectives to our meeting.
Thank you to our colleagues.
(The committee adjourned.)