THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Thursday, May 2, 2019
The Standing Senate Committee on Aboriginal Peoples met this day at 1 p.m. to study the subject matter of Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families; and, in camera, for the consideration of a draft report.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good afternoon. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room, on television or listening via the web. I would like to acknowledge for the sake of reconciliation that we are meeting on the traditional, unceded territory of the Algonquin people. My name is Lillian Dyck from Saskatchewan. I have the honour and privilege of chairing this committee.
Today we are continuing our pre-study of Bill C-92, An Act respecting First Nations, Inuit and Métis Children, Youth and Families. Before we begin, I would like to invite my fellow senators to introduce themselves.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator Ngo: Thanh Hai Ngo, Ontario.
Senator Tannas: Scott Tannas, Alberta.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia.
Senator Francis: Brian Francis, Prince Edward Island.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Anderson: Dawn Anderson from Yellowknife, Northwest Territories.
Senator Christmas: Dan Christmas, Nova Scotia.
The Chair: Thank you, senators.
I would like to welcome to the committee the Honourable Seamus O’Regan, Minister of Indigenous Services. He is joined by officials from Indigenous Services Canada and the Department of Justice.
Minister O’Regan, thank you and your officials for taking the time to appear today. The floor is yours.
Hon. Seamus O’Regan, P.C., M.P., Minister of Indigenous Services: I want to start by acknowledging that we are meeting on the traditional, unceded territory of the Algonquin people.
I also want to acknowledge the two representatives of children and care behind me. I understand that I have quite an act to follow.
It is an honour to testify today before the committee as Minister of Indigenous Services and to answer your questions regarding Bill C-92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families. I would like to thank the committee for taking the time to do a preliminary study on this important bill, and your work will certainly bring about improvements. I would also like to thank Senator LaBoucane-Benson for agreeing to sponsor the bill.
Joining me today are Jean-François Tremblay, Deputy Minister, Indigenous Services Canada; Joanne Wilkinson, Assistant Deputy Minister, Child and Family Services Reform Branch, Indigenous Services Canada; Isa Gros-Louis, Director General, Child and Family Services Reform.
Let me begin by saying that protecting and promoting the well-being of Indigenous children and families should be the foremost priority of the federal and governments across Canada. However, that has not always been the case.
Members of this committee are aware of the pain and hurt that has been and continues to be inflicted on Indigenous children right across this country. The separation of Indigenous children from their families is not just something that just happened in the past. Indigenous families continue to be broken apart today. In fact, it is a worsening problem. More Indigenous children are in care now than at the height of the operation of residential schools.
In terms of hard numbers, more than 52 per cent of children in foster care in Canada are Indigenous yet they represent less than 8 per cent of the population. Studies show that the average Indigenous children in foster care may live with anywhere between three to 13 families before turning 19 years old.
This is unacceptable. I think we can all agree that the current system does not work for Indigenous children and families and that we cannot perpetuate the status quo.
As parliamentarians, we must act. Over 20 years ago the Royal Commission on Aboriginal peoples stated:
The healthy functioning of Aboriginal families has been disrupted largely by misguided government policies. Today’s governments have an obligation to make amends.
We must act immediately. With this proposed legislation we would have a path forward to implement lasting reform.
Under the current approach, we separate indigenous children from their families and communities because of poverty, intergenerational trauma and a child protection policy based on cultural discrimination. The bill seeks to reform this approach and promote change in order to create a system which relies on preventive measures rather than apprehension.
First and foremost, Bill C-92 sets out principles that would be applicable nationally to guide how services should be provided to Indigenous children and families.
Over the past year, we’ve heard from Indigenous people all over the countries about what should be in this bill and what principles should guide it.
The principles in this bill, best interests of the child, substantive equality and cultural continuity, are aligned with the United Nations Convention on the Rights of the Child, the Truth and Reconciliation Commission Calls to Action and the United Nations Declaration on the Rights of Indigenous Peoples.
The bill would then provide a clear affirmation of the inherent right of First Nations, Inuit and Metis to exercise their jurisdiction in relation to child and family services.
Indigenous families are currently bound by rules and systems that are often not reflective of their cultures and identities. Our vision is of a system where Indigenous peoples are in charge of their own child and family services, something we recognize should have been the case all along.
An important aspect of Bill C-92 is its flexibility. It would not be a one-size-fits-all approach. The bill is designed for Indigenous peoples to exercise partial or full jurisdiction over child and family services at their own pace. Depending on the path chosen, the exercise of their jurisdiction could result in their laws prevailing over federal laws and laws of provinces and territories, if that is the community’s choice.
Under Bill C-92, when an Indigenous group or community wishes to exercise their jurisdiction over child and family services and have their law prevail over federal, provincial and territorial laws, the Minister of Indigenous Services Canada and the government of each province or territory in which they are located will enter into three-way discussions around a coordination agreement.
If an agreement is reached within 12 months following that request, the laws of the Indigenous group or community would have force of law as federal law and prevail over federal, provincial and territorial child and family services laws.
If no agreement is reached within 12 months but reasonable efforts are made to do so, the Indigenous law will also have force of law as federal law. In practical terms, this means that should a government not act in good faith during the negotiation of a coordination agreement after 12 months of negotiations, Indigenous children and family services law would have precedence over provincial law.
I would hope that provinces would come to the table in good faith because this is about children and families.
To promote a smooth transition and implementation of Bill C-92, Canada will explore the creation of distinctions-based transition governance structures. The co-developed governance structures would identify tools and processes to increase the capacity of communities as they assume responsibility over child and family services.
During this phase, we would continue our work with First Nations, Inuit and Metis partners, as well as with the provinces and territories, to set out the details about how to support communities to exercise jurisdiction.
We cannot impose a solution. That would be contrary to what indigenous peoples want, contrary to the spirit of reconciliation and contrary also to the principles of collaboration upon which the bill is based.
This bill is a culmination of intensive engagement that included nearly 2,000 participants across 65 sessions, including elders, youth, women, grandmothers, aunties, those with lived experience, national, regional and community organizations representing First Nations, Inuit and Metis, treaty nations, self-governing First Nations, provinces and territories and other experts.
What we heard included values and cultural practices, lived experience and academic research, as well as recommendations of a reference group that was comprised of representatives from national Indigenous organizations.
First Nations, Inuit and Metis people have asked time and again for co-developed legislation, from resolutions passed by the Assembly of First Nations in May and December of 2018, to hearing that Inuit leadership wanted a distinctions-based approach, and that the Metis wanted jurisdiction over child and family services to be recognized through legislation.
Since the emergency meeting convened by my predecessor in January 2018, there have been extensive meetings and consultations across the country in an effort to get this right.
Even in the weeks preceding the introduction of this bill, we were incorporating the suggestions of Indigenous groups and provincial and territorial partners.
For me, the truest measure of our efforts came from a statement by one of your honourable colleagues, Senator Murray Sinclair, that our approach should serve as:
. . . a model for implementing the Truth and Reconciliation Commission’s calls to action in a meaningful and direct way.
That doesn’t mean we stop there. There are no closed doors to our Indigenous partners or to the provinces and territories. This bill and the children it aims to protect are only served if we collaborate and ensure their best interests.
Also, I am not suggesting that we have achieved perfection in this legislation. I am the first to admit that there is still room for improvement and I welcome this committee’s input.
We also know that funding needs to be part of the equation for this act to have maximum impact.
We cannot presume that the funding models that have supported the current and broken system will be what Indigenous groups want to use while exercising their jurisdiction. Those models and levels should be discussed and designed through the coordination agreement process. We pledge to work with partners to identify long-term needs and funding gaps.
If passed, Bill C-92 would help to ensure that both the guiding principles and the legislative framework would be in place, protecting the needs of Indigenous children and families for generations to come.
I am determined to continue the tremendous momentum that they created and to move this bill forward. This is the time to follow through on our promises to Indigenous children, families and communities.
Madam Chair, I will be pleased to take any questions that the committee members may have. Meegwetch. Thank you.
The Chair: Thank you, Minister O’Regan. The floor is open for questions.
Senator LaBoucane-Benson: Thank you very much, minister. I want to thank you for the meeting that we’ve had and, in particular, the work of your staff. The support my office has received is very much appreciated.
I also thank you for being open to our amendments. I’m sure you’re going to hear from my colleagues here that they have some strong ideas.
In our work, we have heard very polarized testimony. On one hand, we’ve heard a vice chief say is he ready to occupy the field. They are so ready and they cannot wait for this bill to be passed. They are going to give their letter of notice and they’re good to go.
On the other hand, we’ve heard testimony from Manitoba who has told us, very specifically, that if we pass this bill, we are chaining a ball and chain to them. They asked us to walk away from the bill.
Maybe this is a question for Ms. Gros-Louis. You’ve told me they can do their model in this. Can you explain in detail and walk us through how this bill would help Manitoba occupy the field?
Isa Gros-Louis, Director General, Child and Family Services Reform, Indigenous Services Canada: My pleasure.
The bill is a framework. The details are left for Indigenous communities to decide for themselves. There’s no one-size-fits-all model. That’s how we created this legislation. That’s why we’re seeing that what the Manitoba Chiefs have created could be integrated or aligned with this framework.
We have mentioned that there are certain standards that will have to be applied by all. It would be a matter of having discussions with the group in question and the province. As you know, the process is to request that a meeting take place and that they have conversations over a period of 12 months. Over that period they will be able to have conversations with the province and discuss how they would see the implementation of their legislation and make sure that their legislation aligns basically with the minimum standards that we have outlined in this legislation.
The rest of the legislation, as it concerns Indigenous groups, is very flexible. They can make amendments, including definitions and other clauses. They can determine what it would look like.
Mr. O’Regan: I spoke at the Assembly of Manitoba Chiefs last week. Yes, there is a concern. I commended them, first of all, on the legislation that they are invested in, which is their Bringing Our Children Home Act. I assured them that, to Isa’s point, there is flexibility within here to incorporate their legislation and, more to the point, be provided with federal protections within our legislative framework.
The principles that they have in the Bringing Our Children Home Act are completely aligned with what we’re aiming for. The chiefs were surrounding me at a table larger than this one, and there were many more of them. I said I didn’t think any one of us could argue with these three principles: that, first of all, the interests of the child come first and foremost; that we acknowledge the importance of substantive equality, which basically means the dignity of the child and the family when they appear before the system; and the importance of continuity of culture. Basically, the culture, tradition and language are essential to the well-being of the child.
Of course, that isn’t an issue I took great pains to make those assurances to them because they are fearful. They’ve invested so much time and effort in this and we don’t want it contradicting.
I’m happy to provide you with the technical brief of the legislation, which I offered and some have taken me up on, to give them those assurances that we are, indeed, not only supporting but protecting them.
Senator LaBoucane-Benson: Thank you.
Senator Tannas: I want to make sure I understand. I think they were clear that they have zero interest in negotiating with the province. This essentially just takes an agreement that they thought they had two years ago and it adds an extra year to it so you can fluff this up for everybody else and allow them to catch up.
At the end of the day, they will wind up in the same position they want to be in. They just have to wait yet one more year and pretend to negotiate with the province, if that’s what’s necessary, or have the province pretend to negotiate with them. Is that fair?
Mr. O’Regan: Let me give a high-level answer and then provide more detail. I would say that’s a very constructive year, because we have to work out funding arrangements. Obviously, we need to provide a national framework. You’re absolutely right. We don’t mean to hold anybody back.
I think there’s plenty of room for them to move forward over this course of time. We have to acknowledge that the provinces and the territories occupy this field and that they have resources. While we readily acknowledge, and the reason we’re here, is the system currently doesn’t work. They have resources in the field, and we have to bridge that over to make sure that, before Indigenous groups take this up, they have the capacity ready to take on a whole system. Each one of these communities, nations and bands are going to be taking on a child and family services system that they will hopefully develop.
For many of them, they will welcome, perhaps, the year at least to work this through. It’s also important to remember that we as a government have doubled the amount of money for child and family services to $1.2 billion per annum. Right now 80 per cent of that goes to the apprehension of children to what we call protective services.
Adjusting 80 per cent of your budget away from the security and the apparatus involved with taking children away from their families and moving it towards preventive and prenatal care does take time.
Senator Tannas: I don’t want to dominate this.
I heard you say that you would be working through funding agreements and so on with the Manitoba chiefs, concurrently. They don’t have to just sit in the penalty box for a year while this false deadline goes by. They could actually — and you will make sure that your department doesn’t say, “No, you’ve got to wait for a year until we start phase 2 of whatever discussions.” You would take that on and make that commitment on behalf of the Manitoba Chiefs?
Jean-François Tremblay, Deputy Minister, Indigenous Services Canada: We’ve been working and talking with the Assembly of Manitoba Chiefs and we will continue do to do that. They have been a source of inspiration for this legislation. That’s a bit paradoxical, because a lot of this legislation came from the administration in Manitoba because we heard from them what was going on.
They are concerned with the province. I don’t want to talk on their behalf. It’s also based on the fact that the system in Manitoba is devolved, but the system hasn’t changed. It’s still a provincial system. They would like to really change the system. They have their own frustration with the province.
We encourage jurisdictions to work together. But as we said — and that’s why you’ve got this here — we don’t put one jurisdiction that comes in good faith and presents something that makes sense. If they have something they want to present, we will be there.
The legislation offered to them that they didn’t have before, in addition to everything, is that we’re saying they have the jurisdiction. The federal government recognized it under 91(24), which wasn’t as recognized as it is now with this legislation.
Mr. O’Regan: Let me add quickly to that. I had a very positive experience at the federal-provincial-territorial meetings last week when the Saskatoon Tribal Council announced several agreements on child and family services with the Government of Saskatchewan. I commend that. That’s great when those agreements can be reached.
This is a timeline that offers that flexibility and the benefit of the doubt. Ultimately, at the end of 12 months, after negotiations with coordination and good faith, if an agreement is not reached, then the paramountcy belongs with the Indigenous legislation.
Senator Francis: Thank you for visiting, minister.
We’ve heard testimony from various witnesses regarding funding for after care, when a child ages out of the foster care system and needs help. This was brought up at yesterday’s meeting from two very eloquent young people, Cheyenne Andy from the Vancouver Aboriginal Child and Family Services Society and Ashley Bach from Youth in Care Canada. They are here today as well in the room.
I understand that Bill C-92 is focusing on those under the age of majority, but Indigenous youth need extra assistance when they age out and when they are thrust out into the world. It’s often after leaving care that young people face extra challenges like homelessness, suicide and so on.
Minister, has the government given consideration to providing funding for the organizations that focus specifically on those young adults who have aged out of foster care to better support their transition into adulthood?
Ms. Gros-Louis: This bill has a lot of details to be worked out by the Indigenous groups. The definition of the child and others in here have not been included so that we use the definition — the age range — used by specific provinces. Specific provinces have different ages.
We have left it out of this legislation so that Indigenous groups can decide for themselves what the age range will be for their purposes. If they decide that services should be provided to an individual until the age of 20, 21 or 23, it’s going to be their decision. They are going to decide an appropriate service for that age group.
One of the reasons it was not included in this legislation is to leave that decision to the Indigenous organizations and groups to decide for themselves how far they want to go in providing those services in terms of age range.
Senator Francis: Good to hear. Thank you.
Senator Coyle: Thank you for being with us, minister, and thank you for coming back, everyone else. Nice to see you.
Many of the key points have been already raised. I have two questions. One was also raised last night by our two witnesses who are sitting behind you.
The issue of urban Indigenous persons and the welfare of children in urban environments in Canada. We know that a very large percentage of Canada’s Indigenous population is in urban Canada. We also know it’s a very young population. I’m wondering how, who or which organization sees the actual implementation of this act in terms of the jurisdictional responsibility for Indigenous children and youth in urban environments?
Mr. O’Regan: My deputy minister seems very enthusiastic about answering this question. I’ve learned not to dampen his enthusiasm. Go ahead.
Mr. Tremblay: What are they going to think about me?
It’s a very crucial and important question. It’s important to say that this legislation was developed with First Nations, Inuit and Metis. It’s not an on- versus off-reserve legislation. It’s for First Nations, Inuit and Metis, wherever they live in this country. It is legislation that says that they have the jurisdiction. There’s nothing that stops them from exercising this jurisdiction across the country, because they are protected by a federal law.
De facto it means that the Inuit in Nunavut, for example, could end up saying that these are the rules for Inuit coming from Nunavut, even if they have issues in Ottawa. They would have to come to agreement to see how they can do that — all those details will have to be worked out. For First Nations, Inuit and Metis, it was very important to do that. It’s not just for apprehension; it’s also for retrieving those kids too after the foster system — if we want to retrieve those young adults and bring them back to the community or make sure they continue to have a link to the community.
It’s not the legislation that is only about the territory as the First Nation reserve or a community per se; it could be across the country. That is also important for historic treaties, for example, you’re from Treaty 6. That doesn’t limit it, for example.
It could be interprovincial. They can decide to apply some elements of the legislation that would be for all their kids, children and families, wherever they are in the country. They will have to come to an agreement. That’s why the process is so important — the one-year process — because it also forces the federal government to make public the legislation so people know that those rules and this jurisdiction has been exercised by one nation, and now they know what it is.
Senator Coyle: I have a followup. We know also that there may not be concentrations of people from this or that particular Indigenous group in a particular urban area. You may find quite a lot of people and some who may not have much relationship with a community of origin.
Is there flexibility in this for organizations in the urban area who may not be governing organizations but may be Indigenous organizations to partner on this?
Mr. Tremblay: There’s nothing that is stopping you from separating the jurisdiction from the delivery. Think that we have programs for immigrants that are delivered sometimes by YMCA. The minister and I visited an agency in Toronto — an organization that deals with different First Nations. It’s not necessarily just one, but they keep a link with the communities, as they told us. That’s not impossible.
Senator Coyle: My bigger question is about funding. Since you were here — the minister wasn’t here — and you said this is not legislation about that —
Mr. Tremblay: I will say the opposite.
Senator Coyle: He said a little more, because he heard what was coming. Every single witness we’ve had has said there’s no funding. “We need to see the commitment to funding somehow represented in this, because not only are we going to be asked to do more — and we want to do more,” the witnesses have said — “we need to develop our capacity to do more in some cases.” For some, it’s quite a bit more capacity. Then to deliver on these commitments, because people want to do it well.
They are naturally nervous to be asked to step up and step forward in very important ways. I think everyone is quite excited about the principles here, about the intent. There is a real concern that we are hearing over and over again about the funding. We want to know, is there some way of accommodating this in this legislation?
Mr. O’Regan: Yes, to answer it simply. I am open to it. I’ve heard the same concerns touring across the country and speaking with leadership. I got a particularly thorough going over by Cree women and elders outside of Winnipeg. This is a very real concern for them. So yes, simply put.
We enter into this with the best possible spirit. We have doubled the money for child and family services. We acknowledge that 80 per cent of funding goes to protective services. We feel strongly under this legislation and under the leadership of Indigenous communities that money will be redirected to make sure that children, parents and families are never put in that circumstance in the first place.
Senator Patterson: I have been named the critic of this bill. In principle, I agree with the intent of the bill.
We all know that there are serious problems with Indigenous child welfare in this country. I hope to participate constructively in our review of the bill.
There are a couple of issues I want to address specifically, first relating to Nunavut and second the Manitoba issue. Maybe I will start with the Manitoba issue because we just heard from the First Nations Family Advocate Office of Manitoba. It seems to me there’s a real problem with trust here. It’s not just trust in the province, with the greatest of respect, it’s also trust with the federal government. Maybe you know what I’m talking about, minister. Obviously you have been there and talked to the Grand Chief.
Here’s the problem as I understand it. There was an agreement, a MoU, signed in December 2017, which I’m sure you’re well aware of, by no less than two ministers, the Honourable Carolyn Bennett as Minister of Crown-Indigenous Relations and Minister Philpott, your predecessor. That started the Manitoba Chiefs on a path they felt was going to lead to their inherent jurisdiction being recognized. That’s recited in the first whereas of the bill.
In essence, the First Nations Family Advocate Office was saying that there are all these boxes to tick in Bill C-92. But we had embarked in good faith on a process that we thought was letting us develop the legislation reflecting our inherent rights.
They very clearly said to us, “Reject this bill. Carve out an exception for us.” They think it might have to be radically amended if they are to achieve their goals of developing their own inherently produced legislation which they said they were going to develop in five languages, by the way, very impressive. They thought this would take five years. They said the agreement anticipated full jurisdiction to Manitoba First Nations within five years.
I guess there is a provision. I have the MoU. We were given it last night. There was a provision where either party can give notice to terminate the MoU. I’m wondering if that is section 16 of the MoU, 30 days’ notice. And it says:
This MOU comes into force when signed. It will remain in effect until it is replaced by a subsequent agreement between the Parties. Either Party may terminate this MOU on 30 days’ written notice to the other Party.
That group is wedded to the MOU and say they worked on it in good faith over almost two years. It builds on the bringing our children home and the other earlier framework agreement.
Minister, I haven’t figured out how we get around this. I hear what you’re saying that they should be able to fit into this framework. But we have a problem here that the committee will want to address. Of course, it’s exacerbated because, as they described it, Manitoba is the ground zero in challenges in Indigenous child welfare. How do you see dealing with what we were told is a rejection of the bill by the First Nations Family Advocate Office who say they represent the chiefs? How do we get through this?
I thought when I was speaking last night that maybe we should be honouring the process that’s in place, which may hopefully get us to where we want to go with Bill C-92. What’s the fix for this?
Mr. O’Regan: It’s partially political. When I say political, I mean the best sense of the word. In the few days I spent in Manitoba last week, there is a massive gap in trust. That is the political lay of the land.
Having said that, both at the Assembly of Manitoba Chiefs and with the Cree women I spoke with, every one of their concerns as they reiterated them have not only been acknowledged, but those obstacles have been removed with this legislation. You can repeat and repeat it. We’re all relatively political in this room, but sometimes no matter how many times you repeat, when you have a broken trust, it’s very difficult to re-establish that overnight.
I maintain a strong and confident position that legislation like the Bringing Our Children Home Act is something that not only works concurrently with this legislation, but we enable and protect it. That is a powerful tool we’re offering them. It does not obstruct them in any way. It enables them and protects them.
Once again, my deputy demonstrated some enthusiasm about wanting to also answer this.
Mr. Tremblay: Thank you for taking care of me. In theory, the legislation includes that if a First Nation, Inuit or Metis organization wants to go ahead with their own legislation, they can go ahead with their own legislation, but they will not be protected with the paramountcy we are proposing. For the paramountcy, we asked them for a year try to develop a coordination agreement. We don’t think it’s imposing too much. We’re clearly saying it has to be a reasonable effort, and there should be a reasonable effort on the other side to come to an agreement. If there is none, they can go ahead with their own legislation. That’s not necessarily bad.
The other element I would mention, at the moment, if we decided to use an approach that is nation by nation and law by law and recognizing them, that’s something we they can do under self-government, it’s not necessarily faster. It applies that we will have to sit down and agree about what are the ancestral rights, and to recognize those. Those discussions are not necessarily faster than one year for an agreement.
It was suggested that we could take this legislation and make it a federal legislation. That means we will have to do it one by one across the country. This legislation fast tracks everyone by giving one process for everyone who wants to opt in and use the jurisdiction and exercise it to use this process. We don’t have to do one by one. They can come, and after a year, the minister can publish the legislation that is developed by them.
It’s a way to boost the capacity of the First Nation, Inuit and Metis groups who wish to exercise their jurisdiction.
Mr. O’Regan: When I speak to the assembly of Metis chiefs, I said if I had the time and wherewithal to pass individual legislation for each organization or group, whether it be First Nations, Metis or Inuit, that wanted to have their own child and family services systems I would do so. Realistically we understand that’s not possible within our legislative timetable. It’s not even close.
This is our best effort to encapsulate all of it with two overriding principles. First that this recognizes and affirms an inherent right that exists. That is really important to remember. Second, just on a political level, I’m a big believer in the more local you can make solutions the more effective you can be in helping local problems. This empowers groups at the most local level to come up with the most creative and effective solutions.
Senator Patterson: Thank you for that.
Forgive me, but I want to focus on Nunavut. The Nunavut government, of course, is unique in the country. It represents 85 per cent Inuit, as you know, minister. There is a strong majority of Inuit in the legislature. There is an Inuk minister of child and family services, the premier is an Inuk. They have very carefully developed a made-in-Nunavut Child and Family Services Act. They may have done the kind of work that you want to see happen in the rest of the country, I would respectfully suggest.
How does what they have fit in with the Bill C-92? They’ve pointed out there are some tweaks that they think are needed, which I may recommend to the committee. One, there’s a provision in your bill that talks about the need to have legislation, a regime in a province or territory that is not less than the minimum standards you have set up.
One of the problems that was brought to my attention is that sometimes their standards are greater than what you have.
I was told, for example, that they take children in care up to the age of 26. This is what they’ve decided. I respect that. I’m sure you do as well. That’s where the standards are higher. We don’t want federal legislation to interfere with that. Maybe it doesn’t.
They had suggested that clause 4 might more explicitly state that nothing in the bill affects the application of a territorial act where the conflict or inconsistency is caused by a regulation that exceeds the minimum standards. I just want to flag to you as an issue of the GN.
They are also concerned — and I will not try to explain it here, even though I’ve had a bit of legal training, long ago — about clause 5 of your act, and section 23 of the Nunavut Act.
It’s about the fact that the Nunavut Act was connected with the Nunavut Land Claims Agreement. They want to make sure that the jurisdiction given to Nunavut, under the Nunavut Act, according to the land claim agreement, is not impacted by this legislation because it’s constitutionally protected. This is kind of a technical thing, but there is a proposed amendment that might clarify that.
I know there was an attempt to address this in Bill C-92 and that’s appreciated. The government of Nunavut is saying it isn’t quite right.
I mention this because the minister told the committee that they weren’t really well engaged with your government in developing this legislation. That they attended a two-day technical briefing in late January 2019, in Gatineau.
The minister described that as a briefing, not an engagement. She said that this was the first time they had seen the proposed draft. There was only a brief time to provide feedback and Government of Canada representatives were clear that the bill had to be passed before the election, leaving no additional time for consultation.
I think there is a few — and I will not mention them all, I have a briefing note that I will give you — there are a few issues relating to Nunavut.
Finally, could we understand how your Department of Indigenous Services Canada is reorganized, and maybe it is not reorganized, but how it is organized to support the significant work that will be involved in moving forward with Bill C-92?
Mr. O’Regan: Three questions that I discern from this consultation with the government of Nunavut, some technical questions regarding concerns they have and our department’s capacity. I will get Mr. Tremblay will speak to those.
Mr. Tremblay: On engagement, I had a federal-provincial-territorial call with Nunavut on the phone last Friday. It was not the first one. We had some calls last summer and also during the fall. We have been engaging with them on a regular basis.
When we draft legislation, we don’t send draft legislation to everyone every day. There is a moment in this case where we share draft legislation and allow them to see it before we tabled it, which is exceptional in the system. We have been engaging with ITK and other Inuit groups through our process. It has been there.
On the technical issues you raised, you’re right, we heard them. That’s why there is a provision in the legislation that was specifically a response to their concerns. To give an example, clause 2 mentioned that the section 35 rights are respected, which include treaty rights and Nunavut. If you look at clause 3, we talked about conflict with existing agreements which could extend to Nunavut. They wanted something more so we included the Nunavut Act itself. There is clause 5, that directly addresses Nunavut. It’s there.
Is there better wording? I would be happy to see it. In all discussions with Justice and everyone, it was seen as more than sufficient to respond to their demands.
On the minimum standards, they are called minimum standards. If you look at clause 4, it says there are minimum standards and for greater certainty. That is how we start the sentence, they are not there to replace existing standards that may be there and could be better. It is not that we want to lower the standard. It was a response to some provinces and territories who came to us when they saw a draft and said, “make sure that you don’t force us to lower our standards, because in some cases we may be better than you.” We have addressed those issues, we think.
Mr. O’Regan: We welcome exceeding standards.
Senator Patterson: I don’t want to belabour this, because I bugged you about it in Question Period the other day. ITK is convenient. It is across the street. It is easy to go to and we all respect Natan Obed, he is an articulate guy.
This was an issue with Bill C-45. The consulting required the solemn obligation of the Crown under the Nunavut agreement, the Nunavut Land Claims Agreement, article 32, is to consult with the rights holder in the jurisdiction, that aid ITK — and I know President Obed agrees with me on that.
That is Nunavut Tunngavik Inc. which the president of ITK formerly worked with their social development council, is required to be consulted on social and policy changes being made by Canada. I want to reiterate again that as convenient as it is, the Crown’s obligations under the Nunavut Agreement are to also engage with Nunavut Tunngavik. I know the president of NTI is on the ITK board. I think we’re finding the Government of Canada doesn’t always respect that understanding and that was a problem with Bill C-45. Thank you.
Senator LaBoucane-Benson: You brought up the minimum standards, I believe the minister of Nunavut was saying that the 26 years of age example was when they had children who were living in Ottawa. They wanted to take care of their children who were — there was one particular case, I think the young man was 24 years old. They wanted to do a cross-jurisdictional, an interprovincial agreement. That young man wound up committing suicide because he was not provided the services that they would have provided in Nunavut in his age group.
I’m still curious about these cross-provincial/territorial agreements. How would this piece of legislation allow Nunavut to exercise their jurisdiction in Ottawa to take care of their children? Is there anybody who can —
Mr. Tremblay: Under the Nunavut Agreement what they have at the moment is not something possible as far as I remember. With this legislation there is nothing that precludes the Inuit to have legislation and measures under their jurisdictions that applies to all Inuit members of their community or their agreements. By doing that, it would apply to people outside. They have to come to agreement to make sure it’s being done. It would come with some challenges in terms of how to implement this. It opens a door that doesn’t even exist at the moment.
Senator Doyle: Considering where the minister comes from, I think I’d like to focus a question on Newfoundland and Labrador. Since our committee started on Bill C-92, I read somewhere in the notes that the province of Newfoundland and Labrador has dealings with six local Indigenous groups, two on the island and four in Labrador.
Have you had any interaction with these groups? Are they generally positive about the bill, or does the bill present any problems that might be particular to the Labrador and Newfoundland Indigenous people generally?
Mr. O’Regan: I think as somebody who grew up in Labrador and having worked at the table with two of those groups, I’m particularly sensitive to their concerns. It would be fair to say that the Labrador Inuit are relatively enthusiastic about where we are going with this bill.
With the Innu, I think we will continue to work with them. There’s a hesitation that I have noted in the same way I noted in Manitoba. The Innu, particularly in Labrador, have had to deal with a steady stream of children who have gone into care. As you know, the province is dealing with that and investigating that further and are working with them on that. It’s in keeping with the legislation as intended, which is to offer them the flexibility to come up with particular solutions.
Senator Doyle: I was wondering if you have statistics on the prevalence of Indigenous children in care in our province? Is there a difference, say, on the Island of Newfoundland and Labrador itself?
Mr. O’Regan: I don’t have it here. We can get it for you, senator.
Senator Doyle: How it compares with the rest of Canada.
Mr. Tremblay: It’s difficult because they don’t necessarily use the same determinants for the statistics, for example. In some cases what they would call “protection” could be vast or large; in other cases, it would be more related to foster care. It’s hard because you have some provinces where it looks huge. When you look more into the details of the data it’s not that significant or not as significant as it would have appeared. We can look at it for Newfoundland and Labrador.
Mr. O’Regan: There’s no question, senator. You’re right to raise it. It’s a huge issue at home politically. I would like to know at a granular level where we are, but politically it’s a big and emotional issue.
Mr. Tremblay: There are too many, that’s for sure.
Mr. O’Regan: That’s for sure.
Senator Anderson: Akana. Quyanainni for the presentation. I am filling in for another senator, so this may have been asked before. Bill C-92 proposes a trilateral coordination agreement between the federal government, provinces and Indigenous groups in the development of this bill. If so, what feedback have you received from the provinces and territories? What will be done to ensure the success of these agreements and not leave them unresolved beyond the 12-month time frame that is proposed?
Mr. O’Regan: The legislation locks in that process. I think there has been varying levels of enthusiasm depending on the province and territory. This is legislation that recognizes and affirms an inherent right for those Indigenous groups to develop their own systems, that they already occupy the space. We are giving them the federal cover to make sure they can safely and effectively enable that right.
We have worked with provinces and territories from day one. Many of them recognize, as I said earlier, the most effective solution is the most local solution if you want to effectively deal with problems. We need provinces and territories onside. The way this legislation is concocted and our strong recommendation on this is that it has 12 months. If at the end of 12 months an agreement is not reached in good faith, then the Indigenous legislation is paramount.
Senator Anderson: As an Inuvialuit who worked as a social worker in her home community, a very small community, I was wondering if there was any recognition given to the type of work that the Indigenous social workers would be doing. My role as a social worker in my community was probably the most difficult job that I have ever had. You’re dealing with immediate family, extended family as well as having intimate knowledge of the community, families and the historical knowledge of the communities. You’re expected to fulfill legislation that you have to enforce.
Has any thought been given to the training and support of Indigenous individuals that commit to taking on the child and family services systems?
Mr. O’Regan: Indeed. I’m going to let Joanne speak to it maybe in a little more length.
Let me say when you acknowledge the $1.2 billion that we dedicated towards child and family services, 80 per cent of that goes to protective services. We can start readjusting that funding so we are not apprehending children but now putting it towards preventative care. This is going to enable many people who are in positions such as yourself to start earlier to make sure that in lockstep with the community and with the support of the community they can start that preventive care at a much earlier stage.
Joanne Wilkinson, Assistant Deputy Minister, Child and Family Services Reform Branch, Indigenous Services Canada: It is incredibly hard work and kudos to you for having a brought that to the table. We heard from Indigenous social workers across the country about the difficulties, particularly on the protection and apprehension side. I think what we heard most from communities was that they really wanted to focus on prevention. The prevention first and kind of have that take root and then maybe look at the protection side of it.
It gets back to nations deciding for themselves what they want the system to look like so that Indigenous social workers can be implementing that work for the community, as opposed to implementing legislation that they had no hand in developing.
Senator Patterson, just to assure you because I’m not sure that we got it on the record, we engaged with the land claim organizations. We can provide lists of that, if you like.
Senator Patterson: Okay.
The Chair: We are at the end of our time. Minister Regan, are you able to stay for two more questions?
Mr. O’Regan: I am not, Madam Chair, unfortunately because of Question Period.
The Chair: Okay. Thank you. I thought I better check to make sure.
Thank you very much for your presentations today and answering the questions from the senators.
The committee is pleased to welcome, from the Canadian Bar Association, David Taylor, Executive Member, Aboriginal Law Section; and Gaylene Schellenberg, Lawyer, Advocacy; and from Inuit Tapiriit Kanatami, President Natan Obed and Jenny Tierney, Manager, Health & Social Development.
We will begin opening remarks.
Gaylene Schellenberg, Lawyer, Advocacy, Canadian Bar Association: Thank you for the invitation to present the Canadian Bar Association’s views on Bill C-92.
The CBA is a national association of over 36,000 lawyers, law students, notaries and academics. An important aspect of our mandate is seeking improvements in the law and in the administration of justice. It is that aspect of our mandate that brings us to you today.
Three CBA groups collaborated to produce our written submission on Bill C-92: the Aboriginal Law Section, the Child and Youth Law Section and the Family Law Section.
With me is Mr. David Taylor, an executive member of the Aboriginal Law Section, which consists of specialists in Indigenous law from across the country. David practises here in Ottawa. He will present the substance of our brief and respond to your questions. Thank you.
David Taylor, Executive Member, Aboriginal Law Section, Canadian Bar Association: Good afternoon and thank you, Madam Chair and honourable senators. It is a pleasure to speak to this committee today on the traditional and unceded territory of the Algonquin people. I am pleased to contribute to the Standing Senate Committee on Aboriginal Peoples’ pre-study of Bill C-92.
Before I begin, I should note that in addition to my activities as a CBA volunteer and as a member of the Aboriginal Law Section, in my day job I am counsel for the First Nations Child and Family Caring Society and its complaint under the Canadian Human Rights Act. While that experience has certainly given shape to my views on Bill C-92, I’d like to make it clear that I’m speaking today only in my CBA capacity.
The CBA submission, as Ms. Schellenberg mentioned, is the product of collaboration between many CBA members from the CBA sections and the CBA’s own internal approval processes.
As the Supreme Court of Canada observed in the 2014 Reference re Senate Reform, the Senate has served as a forum for ethnic, gender, religious, linguistic and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process. The individuals most affected by Bill C-92 lie at the intersection of two such underrepresented groups: Indigenous peoples and children. Children are among the most vulnerable individuals in any society, and adults in positions of influence have particular obligations to ensure that their best interests are taken into account.
The CBA sections made eight recommendations in their submission. Some of these deal with specific amendments to Bill C-92. However, in my opening remarks, I will focus on the broader principles underlying these recommendations, in keeping with the committee’s focus on the subject matter of the bill during pre-study.
The CBA sections’ principal concerns boil down to the risk that the regime Bill C-92 would enact will be, at best, little more than another hollow promise made to Indigenous children and, at worst, an instrument for further perpetuating harm to another generation of Indigenous children.
The Indian residential school settlement, the Truth and Reconciliation Commission’s report and Calls to Action, the decision of courts in Ontario in Brown v. Canada regarding the Sixties Scoop, the Sixties Scoop settlement and the Canadian Human Rights Tribunal’s landmark January 2016 decision regarding present-day discrimination within the federal government’s child welfare programs for children living on reserve, as well as the tribunal’s many non-compliance orders, confirm that, for generations and generations, Indigenous children have faced some of the worst forms of discrimination and negligent treatment from the federal government, with devastating consequences for themselves, their families, communities and descendants.
Instruments like Bill C-92 should aim to break that cycle.
However, our key concern is that the possibility of a lack of funding will preclude Indigenous communities from doing so.
While Bill C-92 uses powerful tools of federalism to ensure that Indigenous communities may enact their own laws to address their communities’ needs, the fact that funds will be contingent on a tripartite agreement made after the fact involving the Indigenous governing body, the federal government and the provincial or territorial government, risks leading to situations in which laws may come into force without sufficient funding to implement them.
The lesson from the Canadian Human Rights Tribunal’s many decisions regarding First Nations child and family services on reserve is that funding is crucial. The tribunal found that the federal government’s funding structure created perverse incentives that led directly to children being taken into care. Specifically, the system funded maintenance expenses, i.e., those for putting children in care at their actual cost, while failing to fund or only minimally funding prevention services. As a result, parents were often put in the position of surrendering their children to the state’s care so that much needed services could be provided for in a foster home instead of the family home.
We don’t know how the lack of funding that is possible under Bill C-92’s current structure might operate on the ground given the many dozens of coordination agreements that could be established. However, one thing is sure: If funding is not taken seriously and if the individual needs and circumstances of each community are not taken into account, as ordered by the human rights tribunal, discrimination is likely to continue.
In response to the Auditor General’s 2011 report regarding the federal government’s on-reserve childhood child and family services program, Michael Wernick, who was then Deputy Minister of Aboriginal Affairs and Northern Development Canada, made the following comments to the House of Commons Standing Committee on Public Accounts:
. . . One of the really important parts of the Auditor General’s report is that it shows there are four winning conditions or missing conditions. The combination of those is what’s likely to result in enduring change. You could pick any one of them, such as legislation without funding, or funding without legislation, and so on. They would have some results, but they would probably be temporary, in our view. If you want enduring structural change, it’s the combination of these tools.
Bill C-92 as drafted goes some way to addressing the conditions needed for structural change. As Mr. Wernick urged in his testimony in 2011, it should go further.
In addition to providing a framework for the operation of Indigenous laws, Bill C-92 also sets a series of minimum standards for all child protection authorities dealing with Indigenous children. This is important, as various child protection statutes provide a patchwork of unequal protections for Indigenous children and families. To be clear, the CBA sections do not read these standards as a race to the bottom. They set a floor and not a ceiling. Given the operation of the doctrine of the paramountcy and the purpose of Bill C-92, provincial, territorial or Indigenous laws that exceed Bill C-92 standards will remain operable as there will be no conflict with Bill C-92.
Bill C-92’s goals are laudable, consistent with the TRC’s calls to action, the constitutional rights of Indigenous peoples in Canada and international law. However, as drafted, Bill C-92 makes no guarantee, enforceable or otherwise, about funding for Indigenous-led child welfare systems. As such, the bill could risk doing more harm than good.
Those are our submissions. Thank you. It is my hope I can provide some assistance today in your deliberations.
The Chair: Thank you very much. President Obed.
Natan Obed, President, Inuit Tapiriit Kanatami: Nakurmiik, Madam Chair. It’s good to be back with you here in committee on another very important issue related to children and our care for children in our society.
Inuit Tapiriit Kanatami is the national representative organization for the 65,000 Inuit in Canada, the majority of whom live in Inuit Nunangat, our homeland encompassing 51 communities and nearly one third of Canada’s land mass and 50 per cent of its coastline. ITK is governed by the elected leaders of the Inuvialuit Regional Corporation, Nunavut Tunngavik, Makivik Corporation and Nunatsiavut government.
These four Inuit representative organizations and governments are Inuit rights holders under section 35 of the Constitution, having negotiated comprehensive Inuit Crown land claims agreements between 1975 and 2005.
It is therefore an appropriate and positive development that the Crown engaged Inuit rights holders in the development of Bill C-92. ITK helped facilitate regional engagement with the Government of Canada throughout this process through our national governance structure.
It’s one that I know has been in conversation with this committee this week. It’s a really fascinating example of what happens when Indigenous peoples’ rights and public governments try to figure out how to work together. I think we are still in the very early stages of understanding how to respect one another throughout that whole process.
Too many Inuit children and youth have been and continue to be placed in care due to issues of neglect, which can largely be attributed to a lack of attention to addressing social and economic inequities among Inuit, including in the areas of food security, housing, mental wellness, availability of health services, safety and security, income distribution, education, livelihoods, culture, language and quality of early childhood development.
Due to the limited number of foster homes, professional services and residential care facilities throughout Inuit Nunangat, children are often sent outside of their communities and/or regions to be placed in care. As a consequence, far too many of our children are unable to participate in our culture and society and as members of our communities.
When the legislation was announced in November 2018, the Minister of Indigenous Services stated that the legislation would do two things based on what the federal government heard during their consultations.
First, it would provide a set of principles that were based on both the United Nations Declaration on the Rights of Indigenous Peoples and the United Nations Convention on the Rights of the Child.
The minister clearly stated that:
. . . decisions about the future of children and the well-being of children should be based on the best interests of those children, should be based on the rights of those children and their families. . . . That children should not be apprehended from their family on the basis of economic poverty, or on the basis of health issues that are untreated.
Second, the minister stated that the:
. . . legislation should affirm the right to self-determination on child and family services. Rights that are laid down in international law, in our Constitution and in treaties. And this affirmation of self-determination opens a space for First Nations, Inuit and Métis to exercise the jurisdiction that they rightfully have.
In July 2018, ITK created a working group to provide input, review documentation and provide recommendations to the ITK board of directors related to the proposed federal legislation. The working group included representation from Nunavut Tunngavik Incorporated, the Inuvialuit Regional Corporation, the Nunatsiavut government, the Nunavik Regional Board of Health and Social Services on behalf of Makivik Corporation, Pauktuutit Inuit Women of Canada and the Inuit Circumpolar Council of Canada.
ITK worked with the Government of Canada as well as the Assembly of First Nations and Métis Nation to co-develop options for federal legislation to address the protection of Inuit children. Through engagement sessions, one of which was organized by Pauktuutit Inuit Women of Canada and included approximately 30 participants representing Inuit organizations, government and front-line service providers from across Inuit Nunangat, and also researchers and the input of ITK’s working group, ITK developed and submitted to Indigenous Services Canada a series of priorities for child protection. They included doing whatever is possible to keep children with their immediate or extended families, which requires enhancing the support provided by departments and agencies; ensuring that all care provided to Inuit children and families is culturally appropriate; ensuring that Inuit children and youth living outside of Inuit Nunangat are identified as Inuit and provided with culturally appropriate care; and ensuring that Inuit children and youth sent outside of Inuit Nunangat for specialized care remain in contact with their culture and home community.
Inuit also called for the legislation to respect four principles: One, an outcome focused approach; two, a distinctions-based approach; three, an evidence-based approach; and four, Inuit self-determination.
While much of what Inuit proposed was incorporated into Bill C-92, ITK is requesting an amendment to section 28 of the bill which speaks to information agreements.
We know that Indigenous children aged zero to 14 make up 7.7 per cent of all children in Canada, yet represent 52 per cent of children in foster care in private homes.
However, with the limited data available in public reports, it is not possible for ITK and, in most cases, the Inuit land claim organizations, to readily determine how many Inuit children have active statuses with child welfare services both within and outside of Inuit Nunangat, nor are they able to determine the type, duration and location of the services their beneficiaries are receiving.
Therefore, ITK requests that clause 28(a) be amended to ensure that data gathered on Indigenous children in care are disaggregated to clarify whether they are First Nations, Inuit or Metis, and in the case of Inuit, that their affiliated land claim organization be identified. This would enable service providers to connect with and serve notice to the Inuit land claim organizations so that Inuit children and youth can continue to receive the benefits they are entitled to under their respective land claim agreements.
At a high level, there is consensus across Inuit Nunangat about how child welfare services would ideally be delivered within Inuit communities. Each region also has significant provisions in legislation, policies and program plans for holistic prevention work that is grounded in Inuit culture and practices, keeping children within their families and communities as much as possible, and increasing support for Inuit and community-led delivery of services. However, none of the regions has been able to make a significant shift towards this vision on a system-wide scale. Bill C-92 can help us do so.
To achieve such a shift, greatly increased and sustained investment in the child welfare system across Inuit Nunangat is needed. Such investment is needed for staff capacity and other resources to better implement services required by legislation, for research and implementation of new prevention-oriented services for families, for facilitated design and funding of more community-level initiatives to support healthy families and systems change initiatives towards more Inuit self-determination in all aspects of child welfare.
The Chair: Thank you very much. The floor is now open to questions.
Senator LaBoucane-Benson: My first question is to President Obed. One of the concerns that we heard other people speak about is children in urban settings. We know that there’s a large population of Inuit children in Ottawa, for example.
Do you see Bill C-92 assisting in the provision of culturally based services for Inuit families and children in Ottawa and for ensuring cultural continuity for Inuit children in Ottawa?
Mr. Obed: Provisions are universal in their application, and therefore would require jurisdictions and all those responsible to make the necessary arrangements to uphold the provisions within the legislation.
We see this as a positive development, considering the patchwork of legislation that governs child welfare. It does not always incorporate Inuit-specific or Indigenous-specific provisions in legislation or in the regulations that implement those legislations.
We have had one-off conversations with jurisdictions in which Inuit live, such as Ontario, and have tried to be helpful and facilitate the best possible interventions or alternate scenarios for care or identification of Inuit in those particular areas. With this federal legislation, we would hope that it would pave the way for more structure in the way that all Inuit could access and goes beyond the patchwork, as I said, of PT jurisdictions.
Senator LaBoucane-Benson: I do have one more question.
I was looking at the CBA submission, specifically around amending the definition of care provider to exclude foster parents. This has come up a couple of times. It was flagged when I read the legislation. I know that in the definitions it specifically talks about care providers as members of family, of community. However, a non-Indigenous foster parent whose only connection to the child is through foster care might also get lumped into this.
Can you speak to that a little bit? Would you amend the definition or would you amend the statement about the care providers getting standing? How would you fix that?
Mr. Taylor: It could be done in either way. It would have to be done in a way that looked at the particular rights that care providers are given under the bill and looking at which are appropriate to all care providers, regardless of the source of their connection to the child. For instance, I believe in the clauses that discussed this, the standing and proceedings automatically was the thing that triggered the greatest alarm bells that you can have a child taken into care. There are tight timelines under provincial legislation that can lead to a child ending up with a foster parent quite quickly. If the only connection is the court order, that’s not the kind of connection that’s spoken to in the definition.
Senator LaBoucane-Benson: Maybe strengthening the definitions to exclude non-Indigenous foster parents whose only connection is through that order, because it is a problem. In Alberta, for example, they don’t have standing currently. When this bill comes through, potentially those foster parents might have standing now. I think in jurisdictions like Manitoba, we’ve seen that’s not a great idea. It causes more delays and consternation.
Mr. Taylor: From the view of the practitioners in those areas. I myself don’t practice in child protection or family law, but the view from the practitioners in that area was yes, that could be problematic.
Senator LaBoucane-Benson: The definition. Thank you.
The Chair: Any other questions?
I see no other questions from senators. Unfortunately, the critic had to attend to other business. He’s unable to ask you any questions at the moment.
With that, I’d like to thank you, on behalf of the members of the committee, for appearing. In particular, thank you for providing documentation of the specific amendments both from CBA and from ITK. We have them in writing, which is most useful. Thank you very much.
In our next panel on Bill C-92, the committee is now pleased to welcome Pamela D. Palmater, Associate Professor and Chair in Indigenous Governance, Ryerson University; Hadley Friedland, Assistant Professor, Faculty of Law, University of Alberta; and Naiomi W. Metallic, Professor and Chancellor’s Chair in Aboriginal Law and Policy, Dalhousie University.
We will begin with opening remarks from Professor Palmater, to be followed by Professors Friedland and Metallic.
Pamela D. Palmater, Associate Professor and Chair in Indigenous Governance, Ryerson University, as an individual: [Editor’s Note: Ms. Palmater spoke in her Indigenous language.]
I’m from the sovereign Mi’kmaq Nation on unceded Mi’kmaq territory. It is a privilege to be here on unceded Algonquin territory today.
By way of background, I have been a practising lawyer for 20 years, 10 of which spent at Justice Canada. I’ve completed all of their training in the legislative process, legislative drafting and statutory interpretation. My doctorate focused specifically on legislation impacting Indigenous peoples. That’s my core area of expertise today.
I’m here to speak against Bill C-92 as it is currently drafted. It needs substantive and substantial amendments if it is going to be considered a bill worthy of First Nations.
My primary concerns are that the bill does not do anything that the AFN, the Assembly of First Nations, or Indian Affairs — however it styles itself today — promised it would do. It promised that it would address the humanitarian crisis. There is nothing in this bill that will do that.
My first concern is that it is pan-Aboriginal legislation that specifically discriminates against First Nations, because it does not focus on First Nation-specific rights, unique histories, socioeconomic conditions or their specific interests. First Nations should not be limited by the very different legal, political and social status of other groups. For example, the Metis, as a collective, do not suffer the same degree or severity of socioeconomic conditions as First Nations and Inuit. We all know that in the law, when you make all groups formally equal, you deny substantive equality to the most oppressed groups. While this is not a race to the bottom, we’re talking about very significant differences in the rights and needs of these groups.
That’s why Canadian courts have specifically rejected formal equality as between groups and focuses now on substantive equality. That is not in this bill. First Nations will be discriminated against in this legislation and denied their basic rights to substantive equality.
My second concern is that there is no independent recognition or status for First Nation laws. They are considered to be, if accepted, a federal law, not unlike a bylaw under the Indian Act. For anyone who has ever worked for First Nations, it is almost impossible to get the RCMP or even a court to uphold a bylaw, despite the fact it is a so-called federal law.
The other thing is that First Nations laws, if recognized, would be conditional or subjected to the Charter, the Canadian Human Rights Act, section 35 of the Constitution Act, all the very limited interpretations from those court cases, the division of powers between federal and provincial governments, coordination agreements and all the interpretations of those coordination agreements by courts or the failure to abide by those coordination agreements by provinces — pre-existing definitions of “best interests of the child” — court-defined and open to interpretation. Any level of discretion or interpretation by others is where racism and abuse is allowed to enter, and that is the problem with the current system. Clauses 10 to 15 of the bill are themselves limits on First Nations powers. You have no less than seven fundamental and substantive conditions on First Nations powers that makes you wonder where the power is, and there isn’t any power.
The paramountcy of laws between federal, provincial and First Nations are very unclear in this bill. To ask First Nations to rely on the non-derogation clauses in the Charter or the Canadian Human Rights Act is exceptionally risky, because they are determined by the courts themselves, and they are basically untested. It’s uncharted territory; we don’t know where they would land.
We have big concerns around the notwithstanding clause and taking exception to any rights that First Nations might have.
My third concern is that it forces First Nations to negotiate coordination agreements with federal and provincial governments when provinces are the problem. This is the problem — the provinces literally having anything to do with our kids are why they go murdered or missing, why they end up in jail, why they’re trafficked, why they’re abused in their homes and why we have this crisis. You can tell by the resistance of the provinces to this bill that they have made public statements about that they are not willing to let go of either the power or the funding associated with our kids. They have built up an industry around our kids. I don’t see them letting that go anytime soon. They have not acknowledged their part of the process.
My fourth concern is that there is no statutory guarantee of funding. Recognizing a call for funding by First Nations is not a statutory guarantee of funding. It only references that call. There are no guidelines for funding — that it must be based on population, inflation, actual costs, actual needs or the rights of First Nations. There’s no mandatory provision around Jordan’s Principle. There are no guidelines around what constitutes prevention funding. There is no commitment to address the underlying root causes of the apprehensions to begin with, which might not be seen as child and family services — things like housing, food, water, clothing and access to mental health services, which are all the fundamental root causes.
My fifth concern is that the minister retains all the powers under the act, including the regulations. Simply having to consult with First Nations is how we’re in this really problematic relationship to begin with. Consultation alone is not working. You need an actual recognition of First Nations’ power to make their own decisions.
Questions around best “interests of the child” — who makes that determination? Coordination agreements — whether they are negotiated enough. Who makes that decision? Whether there is a conflict with treaties — who makes those determinations? Global pan-Indigenous consultations skew any input the minister might get on things like regulations to issues that are completely irrelevant to the First Nations. What is good for the Metis is not good for First Nations, and vice versa. We shouldn’t be speaking about what should happen with the Metis.
By empowering the minister with new powers — and we don’t even know which minister; it could be the Minister of Fisheries and Oceans for all we know — skews everything such that you are disempowering First Nations. Whatever power you give to a minister, you necessarily take away from a First Nation.
There is no specific provision against the forced or coerced sterilization of Indigenous women and girls used in the context of child and family services, which we all know is a problem. This bill doesn’t have a gender-based lens. It doesn’t put women’s voices first; it doesn’t put their experiences first. Because it’s the mothers, primarily, who are losing their children to child apprehension or being forced to have sterilization.
There are lots of other issues: The wording is confusing, vague and unclear. There is no directive to have maximum contact and take active efforts where they would be accountable back to First Nations. There are issues around privacy that would detract from current legislation that exists in other provinces and hamper First Nations’ abilities to advocate for their First Nations. There’s nothing about jurisdiction for off reserve First Nations people and how that would be resolved.
My suggested amendments are that this be specific First Nations legislation — only when there is free, prior and informed consent with a detailed opt-out clause that has funded optional alternatives. If a First Nation is already engaged in managing their own child and family services, that should be a funded alternative to being forced into this legislation. There should be targeted and committed funding specifically for First Nations, where “the minister will provide necessary needs- and population-based funding” — the kind of wording you can’t get around; something you can take to the bank or court. Something judiciable. There is nothing judiciable in here.
The First Nation inherent right to be self-determining over CFS must be recognized in their own right. In order to do that, you need a consequential amendment to the Indian Act which specifically repeals section 88 so that provincial laws cannot apply on reserve. UNDRIP and the rights of the child should be referenced. There should be a comprehensive review of this legislation to make significant amendments if there is any hope of saving it. Thank you.
The Chair: Thank you very much.
Naiomi W. Metallic, Professor and Chancellor’s Chair in Aboriginal Law and Policy, Dalhousie University, as an individual: Professor Friedland and I are two of five authors who worked on the Yellowhead report card, which I believe you would have received copies of. We have divided our time in that way. I will speak to some things I wrote about and Ms. Friedland will do the same.
As you know, in the Yellowhead report we found significant problems in five areas. We identified, five major problems. There are certainly others, but those were the five we focused on.
We believe the legislation is made in good faith, or with good spirit and intent behind it but we think there are some major improvements that have to be made in order for it to be effective. What I will focus on is why I believe it is so important that this bill must address funding and accountability. You’ll see that our comments are intertwined with jurisdiction. These are all intertwined.
Our position, and we say it clearly in our report, is that without real funding and accountability this bill will merely provide Indigenous peoples with jurisdiction to legislate over their own poverty. We’ve seen a black line version of what Cindy Blackstock circulated with certain proposed amendments. I believe you have or will be receiving copies. I think what is proposed in terms of amendments for funding and accountability are workable solutions. That would be my recommendation is to proceed with those.
This bill is such an important opportunity to make a difference in a really crucial area. It has been said by many, including the TRC commission and the Canadian Human Rights Tribunal that child welfare is the modern equivalent of the residential school system. As lawmakers you have the opportunity to do something that perhaps previous parliaments couldn’t or didn’t do something about. I urge you to do this right and not just to rush something through. Do something that is really meaningful and will not end up being simply a hollow gesture.
My background on this is that I have done quite a bit of work and recently written a paper about the history of First Nations child welfare, particularly focusing on the caring society case. I learned throughout my time studying this that child welfare is, like other issue areas of essential services in First Nations communities, a long-neglected area that has major systemic and structural problems. I can’t get into the whole history. I teach classes on this. My point is there is a long history. Almost 70 years. It started post-World War II. That informs why it is so important that funding specifically has to be referenced in this bill, and accountability, the federal government’s accountability has to be specifically referenced in this legislation.
I will talk about the problems, but one of the key features of what is so problematic about how child welfare has been structured for the past 70 years is jurisdictional neglect. It has always been an issue between the federal and provincial government as to who has responsibility with both pointing to the other always on this issue. Parliament has done things — it passed section 88 as an attempt, post-1951, to get the provincial government to exercise jurisdiction. The provincial governments didn’t want to and refused and said: “You can’t force us by passing this unilateral provision. If you want us to offer these services, you will have to reimburse us.” That’s what ended up happening.
In the 1960s, the federal government negotiated several agreements with several provinces, but we saw this patchwork approach develop where some provinces exercised jurisdiction and some they didn’t, or in a miniscule way and only in the most dire circumstances. We saw the Sixties Scoop in some places. A real patchwork. That patchwork has changed but still continues to be a real patchwork. What we’ve seen is this issue of jurisdictional hot potato between now and then that continues. It leaves our Indigenous children in a legal vacuum and creates risks and uncertainty.
It has also allowed underfunding to continue for over a decade. It was felt in the communities, but went largely unnoticed outside the department of Indigenous affairs and within the communities. Parliament was not aware and there was very little oversight. A few times, the Auditor General of Canada commented in the 1990s and in the 2000s about how, because of the way the system is structured, there is no legislation. In fact, it led to a situation where there was very little oversight and accountability and the Auditor General called on Parliament to do more.
The last thing I will say is that the system exists in such a power imbalance. First Nations have little ability to make meaningful change or bring challenges to the court. There were attempts in the 1990s. The most successful we saw is Cindy Blackstock and the Assembly of First Nations going forward with the Caring Society decision. That was a hard-won case nine years in the making.
The decision is a watershed. It’s important to remember that is what brings us here. This legislation is not happening for any other reason but for that court case. That shouldn’t be forgotten. It is important that the decision should be referenced in the legislation.
Two important things came out of that decision. One, it confirmed that First Nations were knowingly underfunded and entitled not just to funding equal to the provinces or that mirrors the provinces, but in fact entitled to services that meet their needs and circumstances, including their cultural, historical and geographical needs. They’re entitled to services like other Canadians, but recognizing they have their own special needs.
The second important thing is because of that jurisdictional hot potato thing is that decision confirms — and Canada did not appeal — that Canada is exercising jurisdiction when it funds First Nations under section 91(24) of the Constitution Act and it bears primary responsibility for this area. Canada has long argued that it does not and tried to say it’s the provinces. It was confirmed clearly in this decision that this is Canada’s jurisdiction.
Those are the two key points coming out of the Caring Society case.
I am a proponent for federal legislation. I think it’s important. I believe that Canada has the jurisdiction to legislate in this area. We were at the INAN committee meetings today. We had a discussion about that. I don’t think that it is at all controversial. Canada has jurisdiction to act in this area.
I think that with respect to legislation, although recognizing Indigenous jurisdiction is a necessary part of the legislation, it is not sufficient on its own. What needs to be part of this is that the law needs to make a commitment to funding as part of recognizing Canada’s accountability.
The way that the law is currently structured seems to suggest that funding will be hashed out in coordination agreements between the federal and provincial governments. When I look back at the long track record of resistance of the provinces to do something in this area, I think it is absolutely naive to think that the Indigenous people will be able to reach agreements with the provincial and federal government on funding.
I think it’s going to exacerbate that hot potato issue that we have seen.
I think, based on the Caring Society case, the position is clear that the buck stops with the federal government. If the federal government feels that the provincial government should be chipping in, that’s fine. Let them negotiate that separately instead of making Indigenous people carry that on their back.
That’s consistent with Jordan’s Principle. You have a debate over funding, the province and the federal government go figure it out. But don’t prevent services from being delivered to Indigenous children and families who need it. That is my position.
In our report for the Yellowhead Institute, we set out four areas in which funding should be provided. Professor Palmater touched on that. I will move on to my two last points.
When I say funding needs to go along with accountability, what I mean is for so long, Indigenous communities did not have a means to have it clearly set out in law the obligations of the federal government. That needs to be set out. There also needs to be a means so that if there are disputes, and inevitably there may be disputes, there needs to be a clear dispute resolution mechanism available. Currently, the legislation suggests there might be a dispute resolution mechanism available through the regulations.
Given the track record in the past, where sometimes the federal government says they are going to legislate something on Indigenous issues and don’t — and we touched on a couple of examples in the Yellowhead report — although I would like to see what gets developed, I support what was suggested in the draft that Cindy Blackstock has put forward, that the Canadian Human Rights Commission should be identified as the last resort mode of dispute resolution. There could potentially be, prior to that, within agreements or through the regulations, some other forms of dispute resolution, but if that doesn’t work, allow the parties to go back to the Canadian Human Rights Tribunal as a potential means.
I really think it is key that there needs to be an independent decision-making body, and not just allowing it to be mediated. There needs to be somebody who is unconnected and at arm’s length from the federal government making these decisions. They need the ability to make binding decisions. This, again, goes back to that really deep power imbalance between Indigenous communities, the federal government and provincial governments.
My last point is not dealt with in the Blackstock black-line proposal. I think it is important. Currently, the legislation talks about the minister having the discretion to collect and potentially publish data.
There was a recommendation as part of the Truth and Reconciliation Commission’s Call to Action No. 2, which calls on the government to publish annual reports on the number of children in care, on total spending, on preventive care and services and the effectiveness of various interventions.
I see that as really important to accountability. If we’re not keeping track, how do we know? That’s how underfunding happened for a decade or more. If nobody is keeping track of what is happening, it’s really hard to hold government accountable.
I think that was the spirit of the TRC Call to Action. Those are three really important things that need to be touched on, from my point of view.
Hadley Friedland, Assistant Professor, Faculty of Law, University of Alberta, as an individual: You have our report. I wanted to focus on two key areas and get into a little detail about parts of this bill that we believe need amendment to ensure that the status quo can’t just continue even with this passing.
The first point is talking about the national standard section and the concept of best interests of the child. The second point is talking about jurisdiction and the need for clarity and certainty in those provisions.
Nobody disputes that the spirit of the best interests of the child and a child’s needs should be at the centre and that all the adults involved should be looking for the best possible solution in a child’s circumstances. That is positive and important. The issue with that is the way it’s been interpreted and applied by courts. Inevitably, this legislation is going to be interpreted and applied by Canadian courts. Without something like strong mandatory language in this bill, courts are going to continue to interpret this as they always have. That is going to lead to the same results.
There are two legal issues. As Ardith Walkem says, best interests of the child, as it’s been applied by the courts, tends to lead to the results for Indigenous children where short-term stability comes at the cost of long-term danger, damage and disconnection, with devastating results.
There are two legal issues that, if not addressed, we believe are going to continue to this result.
All provincial statutes have mandatory timelines when children are brought into care. These range from six months to two years. At that point, there is often no discretion and the child’s legal relationships with their family of origin are permanently severed. Many statutes have removed all judicial discretion and many judges speak about how they often feel and know this is not in the best interests of the child even from their perspective, but are left with no choice. This bill does nothing to address that. That will continue.
The second legal issue is the 1983 Supreme Court case of Racine v. Woods. It’s good law, it’s binding precedent and continues to be applied by courts across Canada. Racine v. Woods stands for the best interests of the child being a primary consideration, and that’s positive. It links a concept of best interests of the child to a troublesome belief that the importance of cultural background inherited for an Indigenous child, as opposed to bonding with a foster or adoptive parent, fades in time. If this is not overtaken by clear language in this legislation, it must continue to be applied by courts.
First of all, this is 36 years old. In the expert evidence that talked about attachment, there’s been 36 years of research and attachment theory itself has evolved well past where we were in 1983.
Second, we have Brown v. Canada where there was incontrovertible expert evidence across Canada saying that removing Indigenous children from cultural connections, relationships and territory caused great harm.
We have that. We also have a body of family law that has evolved significantly in the past 36 years. We have multiple parents and living arrangements, children living in joint custody situations with up to four parents in different ways, creative and effective tools and children who have done well. We see adults growing up in different living arrangements. These family tools are long overdue to be applied in family law situations. We’re not an either/or.
Suggestions for amending or addressing this issue in this legislation include, first of all, overtaking Racine v. Woods and end the provincial statutes. Have an impermissible reasoning clause. Something where it’s worded that when determining the best interests of an Indigenous child, the length of time out of parental care, or the length of time in the care of a non-Indigenous caregiver, cannot in itself lead to the permanent severing of that child’s legal relationships and does not in itself equal stability and security.
Second is focusing on prevention and avoiding going into care in the first place.
Add an active efforts principle like in the Indian Child Welfare Act in the U.S., where reasonable and active efforts must be taken for services and proven on evidence prior to an apprehension being granted.
Adding something like a maximum contact principle from the Divorce Act to encouraging maximum contact between Indigenous children and parents, extended family, community and territory.
Remove best interests of the child where it’s not necessary or not clear. Clause 23 says Indigenous laws won’t be applied if they’re not in the best interests of the child. It’s unnecessary. Courts will retain their parens patriae jurisdiction. Courts can say provinces and federal law doesn’t apply if it’s not in the best interests of the child. You could be more specific if there are specific concerns. If it’s about immediate health and safety, that can be worded rather than the broad issue.
Turning to the jurisdiction issues. Professor Palmater has outlined some as has Professor Metallic.
We believe recognizing and respecting Indigenous people’s inherent jurisdiction in this area is a positive step forward. There are certainly limits.
We believe this clause could be strengthened with clarification and certainty. There needs to be clarity in federal and provincial jurisdiction to address that jurisdictional hot potato and neglect. Where this bill is contemplating concurrent jurisdiction or cooperative jurisdiction, it needs to be clear how that’s going to work.
We need more clarity in conflicts and paramountcy. This bill or this law needs to be clear enough that a front-line social worker in the middle of a crisis situation knows who, what and when to act — who is responsible and where they turn for services for a child.
There needs to be a certainty of children and families access to Indigenous laws. It’s not clear in the current draft whether jurisdiction is confined to geographical areas, territorial jurisdiction or if it follows Indigenous citizens’ personal jurisdiction. That needs to be clarified. Failing to clarify that is going to put many Indigenous children out of reach of this act, including First Nations children off reserve, non-status children, Metis and Inuit children, children and family within urban settings.
Finally, back to the issue of funding. This jurisdiction is going to be hollow without adequate funding commitments to develop and deliver Indigenous laws and create substantive equality between those laws and provincial and federal laws.
The Chair: Thank you very much.
Senator LaBoucane-Benson: I have a question for each of you. I will start with Professor Metallic.
Every single witness who has come before us has talked about the lack of funding in the body of the bill. Having it in the preamble isn’t strong enough. We’re already working on that.
One of the witnesses who came was Kevin Page. He was recommending we include funding in the principal statements. One of ideas that we had was to embed it in the substantive equality principle. Add that as maybe an “E.” It gives the flexibility of all the coordinating arrangements and the way that people are going to imagine their own models and funding attached to it but really speak to the substantive equality and funding. What do you think about that?
Ms. Metallic: Using the language that comes from the First Nations Child and Family Caring Society of Canada and framing it as a principle. More than anything, it needs to be in there. You need to have a standard in law. The problem with the previous system is there is no standard set out in law. Therefore, it’s just open to all kinds of debate.
I like what I’ve seen in the Blackstock suggested amendments. A principle might possibly work. The key is, I would say, using almost verbatim the language that comes from the Caring Society decision. The Caring Society decision talks about substantive equality, meaning First Nations children and families, and you could expand it to Indigenous children, are entitled to services that meet their needs and circumstances, including cultural, historical and geographical needs.
There are different ways you could do it. The most important thing is you get that in there as a principle and as a commitment. Inevitably there will be disputes, but it is in there and that is the standard to which the federal government has to be held. To me, that’s the most important.
Senator LaBoucane-Benson: I agree. Thank you.
My second question is for Hadley. We’ve been talking about the best interests of the child. The primacy of attachment theory in family court is awful. It has negated cultural continuity, cultural relationships and the primacy of relationships with family.
One of the ideas I have been thinking about is in the best interests of the child, in the primary consideration to have a balance between not only the psychological, emotional well-being of the child but beyond that would be family relationship, cultural continuity so that both have equal weight in the primary consideration, which is very different than any provincial understanding of best interests of the child and would then elevate the cultural and family relationship and probably bring to bear Jeannine Carriere’s work from the University of Victoria on cultural continuity. That those, perhaps, are cultural attachments. Perhaps we could redefine that best interests of the child. What do you think about that idea?
Ms. Friedland: That could help. I think that would immediately create a focus. You’re still going to be left with decision makers seeing as if they are balancing those two things. Because the weight of case law is so great on that viewing attachment — again, it’s almost a 30-year-old view of attachments when women stayed home. They’re picturing a non-Indigenous, largely white middle-class home where the mom is at home with the children and the dad is at work. We know that doesn’t even exist anymore. Broadening those relationships and talking about that importance.
I think that’s important, but I think you need an explicit override to Racine v. Woods because it’s binding law at this point.
Senator LaBoucane-Benson: Do you have an example of the impermissible clause you were talking about? I didn’t see that in the Yellowhead Report. Do you have an example of what that might look like?
Ms. Friedland: It’s not in the report. Do you want me to read out my example?
Senator LaBoucane-Benson: The transcript will work, if you’ve read it out already, or if you want to email us something more substantive. It is not my place to give you work.
Ms. Friedland: I’ll email you an example.
Senator LaBoucane-Benson: Thank you.
My last question is for Professor Palmater. One of the things that we’re really challenged with is the TRC calls to action says that they wanted Aboriginal child welfare law and they wanted minimum standards included in that. Those are the calls to action. I think that’s what the federal government was responding to. I hear what you’re saying — how do we reconcile Indigenous jurisdiction, ability to create their own laws but then harken back to the minimum standards that the government is putting forward? Yet the TRC called for that.
Could you talk a bit about how we reconcile that call to action that they are clearly responding to with the issues that you’ve brought up?
Ms. Palmater: Thank you for the question. I think it’s an important one because we have to remember there are lots of public inquiries, commissions, reports, updates and analyses all the time.
Indigenous peoples have been studied to death. Just because it appears as a call to action or recommendation doesn’t mean that is the solution. Maybe 90 per cent of the Calls to Action are what First Nations want, but it might not be. Similarly with RCAP. RCAP had lots of great recommendations and some very problematic ones that we wouldn’t want to follow.
The federal government has never held itself bound by any Royal Commission or inquiry report ever before. I would find it hard to believe that they feel bound by the TRC. That’s with due respect, because the TRC is a very good and substantive report. You can still keep up with it in principle so long as there is — if desired by First Nations, Metis and Inuit — a legislative path forward that still fulfills the spirit of having legislation. It’s just that there’s a different reality. There’s no such thing as an Aboriginal group or an Aboriginal person. We’re completely different.
To respond to your other question, I think it’s important on funding that it not just be in the preamble and a principle; it has to be a substantive right that you can take to the bank. It should appear in all three places: preamble; principle; and a separate, stand-alone, judiciable right.
Senator Patterson: I found these presentations compelling and persuasive. They reminded me at times of our discussions about Bill S-3 and human rights.
Here is the situation. I’m speaking as a member of the Senate: There’s an election in the fall. There is a very tight timetable for dealing with dozens of bills that are piling up in the Senate, including this one, and this is very important. Parliament is due to recess June 21, unless that changes. The Senate may not sit much longer than that.
What I’m asking you is this: You and Cindy Blackstock and the Manitoba Chiefs spokespersons yesterday have all talked about the need to respect the inherent jurisdiction. You’ve all talked about this being a federal act that thereby erodes that jurisdiction. In fact, in Manitoba there was even an MOU, signed a couple of years ago, that they started working on, which was moving towards reflecting the inherent jurisdiction. They have participated in good faith and made good process.
The minister’s folks said that if they want to go that route, they can do it, self-government, but that could be a long process.
Ms. Blackstock, Professor Palmater and yourselves have all suggested a really different approach to the bill. At the same time, I think everyone agrees that this situation is in need of attention. As I understand it, and as you described in the history, Professor Metallic, provinces have now taken on the jurisdiction and there’s money involved. I’ve heard some people say actually profit, that at least they recover their costs and maybe then some.
I’d like to understand if we recommend a radically different approach that will show more respect for the inherent rights, it’s not going to go over very well. The minister just told us today that if an Indigenous group can’t work something out with the province, then after a year they can go ahead under the federal framework; so don’t worry so much about that, they were saying.
If we risk losing this bill by significantly amending it, as you and Dr. Blackstock has recommended — who, of course, is very well respected in this field — we risk losing the whole thing, I think.
Is this a time when the Aboriginal Peoples Committee has to say: Do it right or don’t do it? Do you understand my dilemma?
Right after this session with you, we’re supposed to put together a report for the Senate. I started out thinking some tweaks could be found. You’ve suggested quite significant changes, all of you, and I think you’re on the same ground.
What’s your advice? Do we risk starting a longer, more difficult process by taking the route that you recommend and having a confrontation with Parliament? Maybe I’m asking you for political advice, but I want to confess my reaction to what you had to say. Is there some value in taking this small step forward with some tweaks, or do we need to say, “No, it’s got to be fundamentally better to respect the inherent rights”?
Ms. Palmater: This is very much like Bill S-3. In fact — and I don’t know if this is political advice — we wouldn’t have the bill as it is had the Senate not taken a strong stand and said that in this country gender equality is the law and you have to do better. We are still left with provisions that are not enforced. Kids and families are still going without, and they’re not even covered by Jordan’s Principle because they are non-status in Canada. It’s still fighting Cindy Blackstock in court not to pay those non-status kids.
That’s just one of the ramifications of not just going all the way to the end to say, “No, we stood strong. We’re going to send it back.” I think on this bill, here is the danger. This is it: If you accept this bill and all of the deficiencies and how it won’t do any of the things we wanted and there’s no promise of funding, we’re not going to get another bill. Because Prime Minister Justin Trudeau came in on a platform of “Not only am I going to respect your rights, but I am going to repeal all of the legislation that Harper imposed on you, without consultation, that violated your rights.”
Not a single one of those pieces of legislation was ever repealed, and never will be. Amendments were supposed to be made to Bill C-51, the anti-terrorism legislation — never was and never will be. If we don’t get it right now, this humanitarian crisis is not only going to continue, it’s going to be mired in these potentially 634 coordination agreements and jurisdictional disputes and vague paramountcy and lawsuits. And who suffers from that?
I don’t think we have the right to say on behalf of First Nations kids, “You know what? Let’s just take anything.” We should be giving them the maximum.
Because the government has given them the minimum, this is why we’re in this crisis. I really feel like this Senate is a different Senate. It fought for us on Bill S-3 and I think it can fight for the must vulnerable people in this country and demand more. You have the power to effect that change. They may not like it and they may grumble about it; but because of you standing up and saying no, that will force amendments. I think that’s what you should be doing.
Ms. Friedland: I will take a slightly different position which is there are amendments and the ones we suggested are not that huge. They’re fairly simple to draft. It is really about clarity, certainty and making sure this bill is going to achieve what it has set out to achieve. I think that is doable in a short timeline.
Ms. Metallic: We crafted our submissions that way. I agree with my colleague Professor Friedland that recognizing there are some really important key ones that will not result in a massive overhaul, but some key important things that this doesn’t work without, like a recognition of the funding and the best interests of the child and I also think some dispute resolution mechanism. That’s not a redrafting. I think those are, to use your language, some tweaks.
I read Bill C-91 after we wrote the Yellowhead report, but the language bill has a principle about funding in the preamble. I was a bit boggled that one has one and the other doesn’t.
The Chair: Do you think that language would be suitable for Bill C-92, the language on funding?
Ms. Metallic: I think it talks about sustainable and adequate. There has to be a recognition of substantive equality. That language as we were talking about with Senator LaBoucane-Benson around the language from the Caring Society.
Senator McPhedran: My apologies for not being able to be in two places at once, since we’re sitting and I also didn’t know we had started earlier. I’m sorry to have missed your presentations.
This is not my question, but to the discussion of Bill C-92 wording and Bill C-91 being transported, I think it’s also important and we certainly take a note of it here that the statement of principle is good in Bill C-92, but it’s still optional. The language is still “may.” In looking at this, I think we’ll keep that in mind.
My question without having had the benefit of your presentations, I wanted to ask whether you saw space within your positions for opting out. Looking at this hypothetically, it does become a bill. You addressed that in detail, the opting out? Okay, good. Then I can go on to my next question.
Ms. Metallic: No, we were nodding that we want to —
Senator McPhedran: Please, any thoughts or points you would like to make about that and changes potentially that we could be considering.
Ms. Friedland: I think the Blackstock black line version adds a clause talking about opting out and an orderly way of doing that in a way that maintains consistent service to Indigenous children and families through that process. We were supportive. We thought that addressed that issue adequately.
Ms. Palmater: I had said that there should be an opt out because not all First Nations are in federal legislation. They already have their own laws, for example, or their own jurisdiction or processes in place. The opt-out clause has to be a realistic opt-out clause. Some of the opt-out clauses that the former Conservative government was suggesting was just opt out, your choice is this or the status quo. What I’m saying is it has to be an opt out with funded alternatives so that you are not prejudiced by opting out because you have your own system, but it’s also equally funded on the same kinds of core principles. So that First Nations can really be self-determining, not because the federal government recognizes it but because they are already in that process.
Senator McPhedran: If you didn’t address this, please tell me if you did. I would like to get your feedback on the wording further down in the bill, where it relates to regulations, both in clause 32 and 34, where each of those clauses begins with the language:
If affected Indigenous governing bodies were afforded a meaningful opportunity to collaborate in the policy development leading to the making of regulations . . . .
Had you addressed that already? I wanted to get your sense, its usefulness, any precedents that you would see being able to build upon?
Ms. Palmater: The bulk of the powers still rest with the minister. The minister makes decisions and decides if this coordination agreement worked or not, if there is a conflict, the extent of the conflict and also regulations. The only obligation here is consultations, which doesn’t keep up with Supreme Court of Canada language around consultation, accommodation and potentially consent in certain circumstances, nor does it match free, prior and informed consent of UNDRIP, which Canada supposedly is in support of. This is the heart of the problem.
I think recognition of First Nations jurisdiction to enact their own laws is just that, and not only will we enact the law, but we also get to enact the regulations once we decide if there has been a meaningful opportunity whether or not you have been funded to have an opportunity. And also that it’s pan-Aboriginal. The fact that Metis should have no say over what happens to First Nation kids and First Nations should have no say over what happens to Inuit kids because it’s all different rights, histories, contexts and needs, because First Nations are far more acute than Metis, for example, or Inuit are far more acute than Metis.
It’s an undefined minister as well. It could be the Minister of Fisheries and Oceans or the Department of National Defence. That in itself is an insult that that’s not even noted in here. It just goes to show how still very paternalistic it is that they decide. We have a lot of problems with this regulation clause. We don’t know what would be in those regulations, if they ever do do regulations.
Senator McPhedran: Would you share a concern that the way in which they are constructed is to make a highly litigious environment inevitable?
Ms. Palmater: We are here with this problem and all the crisis we have, not just in child welfare, but in housing, water, pipelines and land claims because of the problem with lack of consultation. They get to interpret and courts get to interpret it. If we want to enforce this, what if they didn’t consult, what are our options? We have to rely on the wealthiest band to be able to take that case to court and maybe all the way to the Supreme Court of Canada in what, five years, ten years, 25 years? How does that help kids? Kids are losing entire lifetimes through all of this discretion, all of the defects in this bill. Like we said, I don’t know if you were here about this discussion around the coordination agreements, you could potentially have 634 coordination agreements in all different provinces and territories with all of this bad wording and it’s just a massive amount of litigation. And what about social workers trying to make decisions about these kids? What do they do about it? Again, it’s the kids.
If we don’t have clarity and directive mandatory language on everything we want, we’re opening it up for litigation. It will be the courts that make decisions for us, again instead of recognizing First Nations’ self-determining rights to make these decisions for themselves.
Ms. Metallic: The problem with 32 is how broadly and discretionarily worded it is. There are some things in the legislation. I will go back to one of the things I think is important, which is dispute resolution mechanisms. It’s left to 32. There is a vague reference in the jurisdiction clauses, but for me that’s one of the most important because there will and may be disputes. There more likely will than may, and there needs to be clear mechanisms. I talked this my submissions about the historic power imbalance that continues between Indigenous communities and the federal and provincial governments.
It’s important for what the regulation power is, to have the perfect act, to have not such a huge discretionary language around regulation powers. I agree with my colleague about the language around meaningful opportunities to collaborate not necessarily being consistent with the duty to consult or if you want to hold yourself to the standard of UNDRIP, it’s not consistent with that.
Senator Christmas: I have to extend the same apologies as Senator McPhedran; I couldn’t be in two places at the same time. I trust my colleagues heard your message quite clearly. The questions and answers were quite good.
Professor Metallic, when Cindy Blackstock was here, she pointed out in her testimony the need to keep statistics on the number of children in care. I understand you mentioned the same thing in your presentation. The question we asked Cindy was did she think there was a need to have a First Nations statistician, under this act, with the mandate to track those kinds of statistics. Do you support that recommendation and if you do, could you elaborate on what the outcome of that kind of position should be?
Ms. Metallic: I do support something like that and even in some of the other versions of the legislation. I believe in professor Grammond’s paper, people had talked broader than just a statistician but an agency or some sort of incarnation of the caring society becoming like a national institute that would provide guidance and support. I think that would be the Cadillac — that might be overstating it. But it would be important to have something like that.
I was thinking about the matrimonial property on reserve, they have the centre for excellence that does support and capacity building. To be quite honest, you’re going to need that if you’re wanting to support Indigenous communities to develop their own laws. They will need that capacity building and support.
But that’s getting a bit beyond your question. To the specifics of somebody keeping track of numbers and statistics, I think that’s so key. I think it’s consistent with the TRC call to action No. 2 that talks about the need to measure. Because of the history and the track record of the neglect and underfunding that went unnoticed for 10 or 15 years, if no one is keeping track or monitoring, we can repeat history again. That’s why monitoring and keeping track is so important for accountability. You keep track and that holds people’s feet to the fire.
Senator Christmas: I think my assumption, after I heard Cindy speak about this, was that the position or responsibility would be within the federal government, under Statistics Canada or something like that. But you’re suggesting that kind of role should be in the mandate of an Indigenous body or organization that would be dedicated to keep those stats?
Ms. Metallic: It could well be. We were having this conversation last night over supper and talking about how in Quebec their human rights legislation has an aspect of it just for youth, the Commission des droits de la personne et des droits de la jeunesse. Is there a role for something like that, independent from government? Even if it does not have binding decision-making powers, but at least powers to observe and oversee. I might ask my colleague if she wants to weigh in.
Ms. Friedland: Because of the timeline, we were discussing what is doable, not necessarily what we think would be ideal but what will be better. The idea of possibly going with an existing body, even the Human Rights Commission, and building on a specialized area that addresses Indigenous children and families, may be a better solution that gets at some of that.
Senator Christmas: Great. Thank you very much.
Ms. Palmater: I think statistics are important for another reason. Once this crisis of First Nation kids in foster care became really popular in the media, provinces like Manitoba started manipulating their statistics, so changing how they count when a child is considered to be in care. It is the same number of kids, but we’re not going to include the ones that are in care with Grandma or the ones here and there.
We also need to have specific language to make sure there can be no manipulation of the statistics, that all the kids in care are noted as the kids in care so they do not minimize the crisis at hand and not be accountable for those numbers.
Senator Christmas: It should be that we count everyone?
The Chair: We’re out of time, I’m sorry. Also, there’s a vote at 3:56 on Bill C-58, in a few minutes.
On behalf of the committee, I would like to thank our witnesses this afternoon. Thank you for your wisdom and your insights.
(The committee continued in camera.)