Good morning, everybody. Welcome to our committee, the Standing Committee on Indigenous and Northern Affairs.
Today we are begining our review of Bill , an act respecting first nations, Inuit and Métis children, youth and families.
Before we start, I want to let the committee and our guests know that we unfortunately have had an administrative glitch and therefore don't have the name tags prepared and the documents in front of us as we normally do. The mail bag, however, is to arrive very shortly, and things will go back to normal. For now I'm going to ask every member to clearly state their name and position, because we don't have these in front of us. I'd ask members to jot theirs down, because we won't have name tags for a while.
This committee plays an important role in Parliament's goal of reconciliation and understanding the truth. We recognize the lands we hold the meeting on not just as a formality, but ask Canadians to reflect on whose land it was before settlers came. How does Canadian history work, and why are we in a position now in which settlement occurred in some areas 400 years ago and yet we still have many issues to address? It's an important process for all Canadians, especially here in Ottawa, for those watching.
We are on the unceded territory of the Algonquin people. We thank them for what they've done for all of us.
Let us move on to our presentation. We're honoured to have Minister , who will open our discussion. He'll present his remarks, and then we'll have an opportunity to delve into the bill by having a chance to ask him some questions.
Whenever you're ready, minister, perhaps you could introduce your team with you. We know who you are, but we'd like to know the others as well.
It's over to you.
Thank you, Madame Chair and colleagues, for the invitation to appear before the committee today to speak to these important and necessary changes to child and family services for first nations, Inuit and Métis people.
Allow me to start by acknowledging that we are gathered on the traditional and unceded territory of the Algonquin people.
Today my team and I are joined together and will be glad to answer questions shortly.
Protecting and promoting the well-being of indigenous children and families should be the foremost priority of the federal government and governments across Canada. However, that has not always been the case.
Every day in Canada, indigenous children are separated from their families, communities, languages and cultures. Too many indigenous children end up in care away from their communities. These already vulnerable children are forcibly taken from their homes without their parents' consent and all too often are deprived of their culture and identity, as well as the community supports that ensure their long-term well-being.
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 in a child and family services system that has been rightly called a humanitarian crisis. Something is seriously wrong when indigenous children represent only 7.7% of all children under age 15 and yet make up 52% of children in care in this country.
Paternalistic policies keep these children isolated from the people they love. Too many young lives have been severely damaged and, in some cases, tragically lost.
This is precisely why Bill takes an entirely different approach. We have before us a bill that represents a set of national priorities that the government and indigenous groups worked on together, principles that put the child first; that enshrine the importance of culture, community, family and the well-being of that child; and that uphold the dignity of the family and of the child in any dealings with the child and family services system.
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 a long time ago.
Bill will finally put into law what indigenous peoples across the country have been asking of governments for decades: that their inherent jurisdiction be recognized and affirmed.
Should Bill be adopted, indigenous communities could exercise partial or full jurisdiction over child and family services. Because a one-size-fits-all approach does not work, it would be up to indigenous peoples to tailor the system to match the needs of their communities, and we are committed to working with individual communities to make sure those services are tailored to meet their needs.
The bill flows from an intensive period of engagement with first nations, Inuit and Métis leaders, communities and individuals, as well as the provinces and territories.
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 sense of our efforts came from a statement by that our approach “should serve as a model for implementing the Truth and Reconciliation Call-to-Actions in a meaningful and direct way.”
That doesn't mean the conversation starts there or stops there. There are no closed doors to our indigenous partners or the provinces and the 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've achieved perfection with this legislation. I am the first to admit there is still room for improvement, and I welcome this committee's input.
Bill is built on what indigenous peoples and child development experts have told us is required to protect children—to get them off to a good start in life. Under this act, indigenous child and family services will put the child first, consistent with the United Nations Convention on the Rights of the Child, the Truth and Reconciliation Commission of Canada's calls to action and the United Nations Declaration on the Rights of Indigenous Peoples.
This legislation sets out principles to ensure indigenous children and their families will be treated with dignity, and that their rights will be preserved. For instance, children could not be taken into care based on socio-economic conditions alone, as is often the case now. Instead of responding solely to crises, Bill prioritizes prevention. lt promotes things like prenatal care and support for parents. Both front-line workers and academics have told us that preventative care is the best predictor of child success and positive development. If circumstances dictate that interventions are needed, an indigenous child would only be apprehended when it is in the child's best interests, and priority would be given to placement with the child's own family or community, and with or near the child's siblings.
Under Bill , 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 lndigenous Services Canada and the government of each province and 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 the 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 law. 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. ln 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 child and family services law would have precedence over provincial law.
To promote a smooth transition and implementation of Bill , 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. 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, broken system will be what indigenous groups want while exercising their jurisdiction. Those models and levels should be discussed and designed through the Bill coordination agreement process.
We pledge to work with partners to identify long-term needs and funding gaps. We are committed to strengthening the bill as it makes its way through Parliament. lt is essential that we work collaboratively and effectively to get this done. The necessity for this legislation goes well beyond partisan considerations—something I think we all understand and agree on. What matters is that at long last we are taking substantive action to overhaul the system, moving away from paternalistic policy failures of the past.
Bill is a concrete demonstration of our collective determination to forge a renewed relationship between Canada and indigenous peoples, one built on respect and the recognition and affirmation of rights. This proposed legislation is designed for a better future for indigenous children, for their families, and for the communities the bill promises to support and protect.
Ultimately, that is a better future for all of us, and for that, I hope I can count on your support.
Thank you, Madam Chair.
We had some 65 different meetings and heard from some 2,000 people from right across the country about this, giving us an understanding of what exactly it will mean.
More often than not, it's met with disbelief. I spent quite a bit of time this week in Manitoba, Saskatchewan and British Columbia. Their attitude toward the proposed legislation, Bill , is mixed. It is fair to say—and I look at my colleague, Robert—that in Manitoba there seems to be a belief that we will not actually do this. Manitoba doesn't believe we will actually come forward with this legislation.
In British Columbia it's certainly been more forceful. It has helped us along. This is the legislation it has been waiting for. Many of the provinces have built up capacity on the ground where they were already looking at child and family services legislation within their communities, so they are anxious to have a national blanket that would protect them within federal law and that allow others to reach the same capacity as they have.
In other areas, where the provinces are more heavy-handed when it comes to youth and social services, such as Manitoba and Saskatchewan, there is greater trepidation about whether or not this is real and meaningful. We've spent most of our time assuring them that that is the case.
Manitoba, for instance, is introducing something called the bringing our children home act. We are encouraging legislation from the ground when it comes to child and family services. What we're pointing out to the provinces is that what we are proposing with Bill would work concurrently with what they want to develop on the ground. It is unique to their circumstances and fits nicely with what we want to do nationally.
Sometimes in dealing with a number of Cree women who are confronted with the idea of child and family services and taking them back to their communities, they have rightfully said, when they walked away, that they were walking away with more questions than they had had before. I saw that as a good sign. Those groups are about to develop their own child and family services based on the wants and needs and capabilities of their communities, and we are providing a shelter within the federal framework.
That is exciting, because it will be more effective. We have effectively doubled the amount of money for child and family services over the past two and a half years, somewhere up to $1.2 billion. It's a substantial amount of money, and it remains there. The difficulty is that 80% of the funding that we carry on through the provinces and through our agencies goes toward the “protective services”. That is an ironic term that basically refers to the security and everything that surrounds the abduction of a child. So 80% of the budget is about the abduction of the child and the associated costs, which are many.
There is a hope too that there will be more money freed up there, because the communities themselves.... We are hell-bent on making sure that we drastically reduce the number of children who are taken from their families and that, over time, we put an increased light on preventive care and prenatal care, so that we never again reach that position.
I'd like to share my time with Georgina. I'm just going to ask a question or two first.
I'm always happy to have a conversation about how indigenous children in this country matter. I think that's always important and something that this country has certainly not had enough conversations about—that, and the family core.
Minister, I'm a strong supporter of the Spirit Bear plan, and I'm sad and disappointed that this government is not endorsing and supporting it. It basically asks that Canada immediately comply with all of the rulings by the Canadian Human Rights Tribunal, which I believe has now come back seven times to ask the government to finally comply. This government, sadly, has not.
It also asks that the Parliamentary Budget Officer publicly cost out the shortfalls in all federally funded public services provided to first nations children, youth and families. In addition, it asks that the government consult with first nations to co-create a holistic Spirit Bear plan to end all of those inequalities—which this legislation simply does not do—and that we look at the core issue in this, which is systemic discrimination. If we talk about that in this place, we need to be mindful that our systems are built on a colonial system, the impacts of which are felt today.
It also asks that government departments undergo a thorough and independent evaluation to identify any ongoing discriminatory ideologies, policies or practices and to address them. Finally, it asks that all public servants, including those at the senior level, receive mandatory training to identify and address these ideologies, policies and practices.
I guess my question is twofold. First, if indigenous children matter in this country, why is this government not supporting this plan? Second, why has the Canadian Human Rights Tribunal come back to this government seven times because of government's non-compliance with the agreement and the judgment made?
I don't want to presume what that system will look like. I don't want to make any patronizing assumptions of how this will go.
What we agreed upon were three fairly good principles, the first, of course, being for the child. The rights of the child are first and foremost.
Secondly—and this is a very important point—the traditions, the culture and the language of an indigenous child are essential to their health.
Thirdly, when dealing with the system, the child and the family caring for that child should be dealt with always with dignity.
For those of you who have had fairly good treatment when you've dealt with hospitals, those may seem fairly basic things. They are not to a lot of people who will be affected by this legislation.
Each one of them needs time to work through it. Those who determine that they're ready and would like to take this on now, that they've waited long enough....
Last week I had dinner with a group of Cree women and elders just outside of Winnipeg who did not want to involve the province whatsoever. They said, “Let's get it done now.” We had to convince them that some work needed to be done.
The bottom line is this: They have a year to enter into negotiations with the federal government and provincial government to help them build their own child and family services. A lot of that is based on making sure that a kid has access to all the right things, to the things that they know, their extended family, that in the eyes of the law they are legitimized, not that they need it, but that they're there and that they're empowered, and that communities get to develop their own way of dealing with situations, with dealing with children in care.
We don't only work with AFN, MNC and ITK. We have trilateral tables at the regional level. We have discussions with the first nations, Métis and Inuit across the country.
As I mentioned before, this legislation doesn't try to, and in answer to your question, I have to resist the temptation of deciding what prevention should be. It should come from the first nations, Inuit and Métis. What the legislation is doing is opening this door and creating this space where there would be a discussion about this.
At the moment, we pay actuals. We pay actuals for the first nation system. We don't necessarily give any levers to first nations, Inuit and Métis to decide what type of system they want. That's what we want to force now, to open that dialogue, but it will have to come from the first nations, Inuit and Métis. If it's only devolution of the system as it is, the risk is that we will reproduce what we reproduced before.
It's not the problem of the social workers. It's not their fault individually. It's the system that is based like that and they take into account the rules of the game, and the rules of the game push them to make decisions that are sometimes short term but over the long term have a significant impact on the kids and the families.
What is the magic solution on prevention? I really do believe that actually with all the innovative approach on prevention and the same thing on education, at the end of the day, outside of the principles that need to be there for everybody, it's going to come from the communities and the nations.
The Nelson House case is interesting because it's a different one, but there are cases I mentioned where the communities completely work with the agencies at exploring the best ways to address the needs of the kids and dealing with protection only in the last minute or as a last resort.
I don't know if you want to mention more.
Thank you very much, Madam Chair.
Good morning, committee members, representatives and guests.
I am National Chief Robert Bertrand of the Congress of Aboriginal Peoples. With me is Mr. Jim Devoe, the CEO of the congress. Before that, he was a worker in the child welfare system for, from what I'm told, about 15 years. That's why he's sitting beside me.
I am pleased to be with you today and wish to acknowledge that we are on the traditional unceded and unsurrendered territory of the Algonquin peoples and their descendants.
Thank you for the invitation to appear and present on Bill . At CAP, we have grave concerns in regard to this legislation as it fails to meet the specific needs of off-reserve and urban indigenous peoples and further marginalizes our constituency.
First of all, I would like to tell you a bit about the Congress of Aboriginal Peoples, or as we call it, CAP. We are a national indigenous representative organization. For over 48 years, CAP has been advocating for the rights and needs of the off-reserve status and non-status Indians and Métis peoples across Canada, and the Inuit of Southern Labrador.
Our vision is that all indigenous peoples in Canada should experience the highest quality of life through the rebuilding of nations. All indigenous citizens have the right to be treated with respect, dignity, integrity and equality. We must keep this vision paramount for our indigenous children and youth.
Today, as mentioned on numerous occasions, over 70% of indigenous people in this country live off-reserve in urban, rural and remote areas. We know this is in large part due to the breakdown of indigenous families through residential schools, child welfare interventions, incarceration and other forms of institutionalization.
The impetus for this legislation came in part from first nations communities and the tireless advocacy of the First Nations Child and Family Caring Society of Canada. By expanding the purview of this legislation to include off-reserve first nations, Métis and Inuit, it seeks to address the needs of peoples who are constituents of the Congress of Aboriginal Peoples.
I would now like to outline CAP’s position on Bill .
Overall, we know the child welfare system in Canada is broken, and this legislation risks replicating some of these failures. We fear the child welfare system, in its current form, will be forced on indigenous communities and expect a different result. We need to rebuild the way in which we deliver child welfare programs and services prior to the downloading of responsibility. This transfer should not be the end of the state's responsibility to our children, families and communities.
We support our people’s ability to govern their own child welfare systems and want to ensure they are supported to address the challenges that come with this. This legislation should not be a way to transfer the burden of intergenerational colonialism back onto indigenous communities. Without proper funding and an awareness of the political, economic and social context, this legislation cannot permit full indigenous control.
Here are CAP’s specific concerns in regard to the proposed legislation:
Subclause 9(1) and clause 10 refer to the concept of the “best interests of the child”. This concept is deeply rooted in the colonial system and reflects a non-indigenous understanding of community, family and the place of an individual in society.
We see an inherent tension between the rights of the child as an individual as defined by the state and the collective rights of indigenous peoples. A child is part of an ancestral lineage, with complex relations, and is the future of the community. We believe that legislation should allow indigenous communities to determine the definition and limits of the best interests of the child.
Clarification is needed of the government's definition of an indigenous governing body. It is currently defined as a council, government or other entity that is authorized to act on behalf of an indigenous group, community or people who hold rights recognized and affirmed by section 35 of the Constitution Act of 1982. We request clarification as to whether urban indigenous organizations and service providers are considered governing bodies. Who invests these organizations with authority, and who will provide services for all indigenous people in urban settings?
Under clause 15, the legislation addresses socio-economic considerations. Children are at risk most often because of colonial policies, systemic discrimination, and intergenerational trauma. Every effort must be made by all levels of government to ensure that communities and families are supported in ensuring the well-being of children prior to such interventions as the apprehension of children.
This legislation should not force the consequences of colonialism upon indigenous child welfare providers. The government must be required to redress the root causes of the degradation of indigenous communities and child vulnerability before child welfare services are even considered. Legislation should require the government to provide diversionary services for communities and families.
Subclause 18(1) of the bill establishes the potential for indigenous governing bodies to have an opportunity to work with provinces to take over jurisdiction. It is not clear what the implications are for the non-status, off-reserve people and Métis with origins across Canada. For example, for a Métis child living in the Ottawa area, what are the implications if the child and their family are not registered members of the MNC and belong to an urban indigenous community? Will they be afforded adequate, appropriate and culturally responsive child and family services?
It is also unclear whether jurisdictional challenges will be created between provincial-territorial service providers and indigenous governing bodies for non-affiliated families, and how these will be addressed. Clear procedural requirements for the referral of off-reserve, non-status first nations, Métis and Inuit children and families to appropriate indigenous child welfare agencies should be outlined in this legislation.
Lastly, there are no clear obligations for dedicated funding to meet current gaps for off-reserve, non-status, and Métis populations in the bill. A number of funding concerns must be directly addressed with the legislation, such as commitments for indigenous organizations to develop child welfare legislation, expertise and resources; for kinship care arrangements, including comprehensive support beyond monthly allowances; for off-reserve resources for first nations, Métis and Inuit child and family service providers who are in the process of developing resources within their community; and for first nations, Métis and Inuit child and family service providers to provide continuous care and services to children and families who relocate and to maintain continuity of care through supported arrangements with other child and family service providers.
We cannot underestimate the degree to which the child welfare system has negatively impacted CAP's constituency.
In closing, I would like to inform you that CAP and our 10 affiliates were not included in the co-development process of this bill. CAP's exclusion from this process is a critical oversight, because the legislation appears to seek to address the needs of the people who are our constituents: off-reserve first nations, Métis and Inuit.
I am happy to answer any questions you have at this time.
Meegwetch. Thank you very much.
Thank you, committee members. I as well offer my recognition of the unceded territories of the Algonquin peoples.
I'd also like to begin by recognizing Jordan River Anderson, who will be honoured on what we call Bear Witness Day on May 10. I hope that all parliamentarians will join us in honouring that very special boy who left a legacy that is now beginning to be experienced by many children across Canada.
I am not a rights holder and therefore will not be offering one way or the other to support or not support this bill, but I am a social worker. I'm a licensed social worker and I've been doing social work for over 30 years. I've worked at the child and family caring society, which is a national first nations organization that seeks to provide the best expert advice and, in the case of the Canadian Human Rights Tribunal, the resources necessary for first nations to be able to care for their children in the ways they choose.
I want to begin by focusing on two elements. One is the funding element that's not in this bill. I want to argue that it is a false dichotomy to split jurisdiction and funding, and that it is a huge mistake to split them. I'm not going to ask parliamentarians to put a number in this bill, but I am going to encourage you to enshrine in the bill the funding principles that have been found by the Canadian Human Rights Tribunal as a requirement for funding.
The second thing I want to talk about is practice. I want to encourage members to relook at some of the issues on practice, including the word “apprehension”. It really is a dated word. It is not in the B.C. legislation. It's not in the Ontario legislation. It's not in the Nova Scotia legislation. It's certainly not used by those of us who have been practising in this field for many years.
Before I get into that, I'm going to address a couple of the points from the federal government. The was asked about the Spirit Bear plan that would address all inequalities in all public services for first nations children, youth and families, and he noted that he does not listen to associations or does not consult with associations. While I respect that position, I just want to correct for the record that all the chiefs at the Assembly of First Nations adopted the Spirit Bear plan in December 2017. The resolution number is 92. This is something that is supported by the rights holders as an important effort to be able to equalize the ability of families to access services.
I also want to talk briefly about post-majority care. Post-majority care is not an elective activity. It is a statutory requirement of child welfare systems, and I would say that it's a moral responsibility too. Children who have grown up in child welfare care need that bridging into young adulthood, with supports for post-secondary education, training and mental health services. I have been blessed and honoured to work with first nations for about 25 years directly, and I've never heard a first nation say that post-majority services should not happen. I heard the minister and the officials talk about the engagement they've had, so I'm surprised that there's still some question of whether post-majority services should be included. I support the youth in care network in saying that they should be included.
I want to move on to my main presentation now.
In paragraph 212 of the landmark Canadian Human Rights Tribunal decision that found Canada to be funding child welfare inequitably and Canada's failure to implement Jordan's principle to be discriminatory, they referenced a statement made by then deputy minister Michael Wernick, who at the time was the deputy minister for INAC, in 2012. He was speaking to an Auditor General's report that found the inequality in first nations child welfare. He said something that I think is directly relevant to the funding question. I'm just going to read that short paragraph. He said that “One of the really important parts of the Auditor General's report is that it shows there are four missing conditions.” In a previous paragraph, he listed those: “legislative base, service levels, outcomes the government's trying to achieve” and “the funding mechanism”. To continue with the quote:
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, in our view, be temporary. If you want enduring, structural changes, it's the combination of these tools.
With all due respect, if Parliament wants better results, it has to provide better tools.
Michael Wernick himself, who was Clerk of the Privy Council for this government until recently, was tying together the issue of funding and legislation. One is the authority to act on your own self-governing interests for your children. The other enables that interest to be real for children.
I feel that Bill , unamended, as it's presented, places first nations in a Faustian bargain, where either we take a flawed bill without funding and maybe the hope of funding, or risk the window of opportunity closing and perhaps being nailed shut. The inherent rights of first nations and the safety and well-being of first nations children, youth and their families ought never to be placed in this position. Proper observance of UNDRIP and the Charter of Rights and Freedoms requires more of the federal government. I think we can all agree that what we want to achieve here is the best for first nations, Métis and Inuit children, and that mediocre is one of the vestiges of colonialism.
I'm not going to spend much on jurisdiction because I know you're going to be calling the Yellowhead Institute, and they've done a good analysis, with five leading law professors on that. I would simply say that the caring society adopts those positions. We are of course in support of first nations jurisdiction in child welfare, but we do have some concerns about the wording of the bill in that regard.
I'm going to move now to funding. As drafted, the bill simply recognizes a call for funding. That's it. It then says in the collaboration section that first nations should sit down with the federal government and the provinces to negotiate a funding agreement within one year. If that agreement is unable to be reached, the first nations law becomes law. The problem is that you will not be able to enact that law without money.
Along with the Assembly of First Nations, I have spent the last 12 years litigating against Canada in trying to get equitable funding for child welfare. We were at the Canadian Human Rights Tribunal last week. We're going to be at the Canadian Human Rights Tribunal next week. What we're trying to do is get equitable funding for child welfare. We now have the strength of seven—perhaps even eight—legal orders against the Canadian government to try to get equitable funding for first nations child welfare.
There's little track record there to say that we can hope these negotiations will be speedy and will result in the same kinds of equitable gains that the tribunal has set out. What we would like to see is that Canada put in the binding sections of the act, not just the preamble, the key principles that the Canadian Human Rights Tribunal has set out as funding requirements.
The first one is substantive equality. The tribunal has made clear that it's not enough, Canada, to fund first nations children on a dollar-to-dollar basis with non-indigenous children, because the hardships of the long-standing inequalities in child welfare funding have created a higher need, along with the multi-generational harms of first nations kids. You need to provide those kids with more money to get the same opportunity.
The second one is the needs of the children and families themselves in different communities. You know well, as you come from different constituencies, that different first nations children in different communities will have unique needs. It should be based on that, on the best interests of the child, not from a colonial point of view, but in adopting the general comment by the United Nations Committee on the Rights of the Child for the rights of indigenous children. That provides a good framework for interpreting best interests through an indigenous lens, taking full account of the child's cultural and linguistic needs and taking full account of the unique context of the community. Those are basic principles that should be enshrined in Bill .
I'd also ask members to seriously consider integrating something along with the Spirit Bear plan. Absent the Spirit Bear plan, I think it's going to moot some of the most significant sections of this legislation. Here's why.
This bill includes a section on socio-economic circumstances. It says that you cannot remove any child because of poverty, but the problem is that you can't remove a child for poverty today in Canada. It's in none of the child welfare legislation. Poverty isn't a reason for child removal; it is an undercurrent for child removal. In the United States, in 21 U.S. states and the District of Columbia, they do recognize the role of poverty in child welfare. They have statutory language that addresses it, but they go further. It's not enough to say that poverty is an undercurrent in child welfare. They impose positive obligations on the state to remediate that poverty.
If you implement Bill but continue to allow the first nations housing crisis to languish and continue to allow underfunding of early childhood programs and of addictions programs, some first nations will be able to make some progress but not the type of progress that is really necessary to be able to enhance and make sure that children are thriving in their environments.
The other section that is important is the prenatal section. I know that was of interest to member McLeod specifically. We absolutely support the importance of prenatal care, but we need to make sure that is universally available to all family members. That's one of the critical pieces.
One of the things we hear about a lot is the commitment to reconciliation. I don't question that. I think that many good people across all political parties and across all walks of life are committed to reconciliation.
But, as you say, the whole construct of discrimination, this bifurcation of Canadian society into the savage and the civilized, which underpins colonialism, is in the DNA of the Canadian government and of the provincial and territorial governments.
When we see the Department of Indian Affairs and its descendants—now Indigenous Services Canada and Crown-Indigenous Relations Canada—continuing to litigate against children at the Canadian Human Rights Tribunal, despite making commitments to implement their calls to action, we have to ask ourselves how we can ventilate these departments in ways that will make that structural racism apparent and in ways that will deal with it. I'm not criticizing individual employees. What I am saying is that it's in the system.
Part of the Spirit Bear plan is to have an independent evaluation of the department done, a 360 evaluation. It's never been done in the history of the country despite its role in residential schools, the sixties scoop and child welfare today. Get that done and then work with departmental officials and with other indigenous peoples and recalibrate the philosophy and the ways of working within the department and more broadly within the Canadian government, and hopefully in provincial and territorial governments too, so that we can recalibrate that relationship.
Unless you have someone coming in from the outside looking at the department.... The department has already proven it cannot reform itself even if it wants to.
Honourable committee members, good afternoon. Kwe natuptut. We're honoured to be here on the traditional lands of the Algonquin people.
My name is Paul Prosper. I am chief of Paqtnkek Mi'kmaw Nation. I am here on behalf of the Assembly of Nova Scotia Mi'kmaq Chiefs, which exists as an institution of governance for all 13 Mi'kmaw bands in Nova Scotia. On behalf of the assembly, I have also held the justice portfolio, during which time I have worked on a number of child welfare-related issues.
The Mi'kmaw traditional territory is called Mi'kma'ki, which encapsulates roughly five of the Atlantic provinces. We have a long, rich history. We have a creation story and numerous legends. Our traditional governance structure is the Sante’ Mawio’mi, the Mi’kmaq Grand Council. As Mi'kmaq, we have outstanding and existing aboriginal and treaty rights. They have been recognized by the highest courts in this country. Throughout our long, rich history, which stems from the treaty periods to scalping proclamations to pre- and post-Confederation legislation, including the Indian Act, through to residential schools and to subsequent policies of the federal government through such things as centralization, we are still here. We still thrive within Mi'kma'ki, at times despite the failed good intentions of the federal government.
Before the arrival of Europeans, we existed as independent nations governed by our own customs, values and traditions. We operated through kisult or Niskam, our Creator, who provided us with how to live through original instructions as human beings. We have an inherent right to self-government. This is independent of any legislative enactment. This is also embedded within the constitutional framework of this country through section 35.
With respect to Bill , the assembly supports the provisions within this bill that recognize the inherent right to self-government. However, we'd like to underscore some fundamental changes that are needed. These are most predominantly funding and transition-related issues, which my counterparts will get into further.
I'll share a bit about our experience within Nova Scotia. Back in 2014, the Province of Nova Scotia reviewed their Children and Family Services Act. There was a major overhaul of that act. We played an important role within that process with the provincial government. This led to roughly 25 amendments to the Children and Family Services Act that dealt with Mi'kmaw people in Nova Scotia. The act previously had no mention of Mi'kmaw people. We developed an interim approach and a long-term approach. The interim approach was to gain some recognition through the provincial act. The long-term approach was for a Mi'kmaw law over Mi'kmaw children, certainly consistent with this bill.
Through those amendments that we achieved in 2017, we have had positive outcomes. For example, there are fewer foster care placements and more within the area of customary care. We have recognized family group conferencing, which exists as a preventative measure through Mi'kmaw traditions, allowing us to take into account an existing situation before it gets to the point of no return. Saying this, however, we are cognizant of the fact that we certainly don't want this federal bill to interfere with the substantive gains we have made provincially.
With respect to my experience, I would just make a note about connection and the role of community. As leaders and chiefs, we often get tired of watching children, families and communities get torn apart by a system that doesn't work.
Certainly in my role, we recognize the need to have basic building blocks, including identity, culture, language and traditions, related to the spirit and well-being of our peoples and of nations. There's a need for connecting and belonging, which is a basic right for community members to live in health and in safe environments. We recognize that the solutions to the problems we have with child welfare must come from within. To resolve these issues they must come from our respective communities.
A certain environment has to exist, because we all know too well that at times provincial laws and policies don't reflect the realities within our communities. We recognize that self-government can provide a mechanism that offers traditional and practical ways to care for children and families, and certainly there are a number of examples in that regard.
As a quick note on funding and transition, we recognize that legislation in and of itself does not really create the change that is needed. There have to be additional approaches involving education, capacity building, governance, infrastructure, stable funding and building relationships within an overall strategic justice initiative.
With that, I'd like to conclude and offer comments from my colleagues here.
My name is Jennifer Cox. I am a Mi'kmaw lawyer. I've been working in the province of Nova Scotia, although I worked for a number of years in the province of Saskatchewan as well. It will be 24 years this June that I first started practising law.
I've done a lot of work in the area of child welfare. In fact, Mr. Morris and I would be on the opposite side of the child welfare file. Part of what we want to share with you today is not only our comments on Bill but also our experiences in that relationship building. You wouldn't normally see lawyers who are on the opposite side of a case working together, but we have formed those relationships and have been able to make some of the changes we now see in Nova Scotia based on those relationships.
My submissions to the committee are with respect to the substantive provisions of Bill . We did prepare a brief and submit it. Unfortunately, it hasn't been translated, so you don't have it before you.
As the chief indicated, the instructions I have are that we are supportive of Bill , but there are some suggestions for change. Based on our experience in Nova Scotia with the legislative changes there, we're not unaware of the fact that these things happen very quickly, with very little opportunity to participate in the process. To some degree, I think, the committee needs to take that into consideration when you're looking at the motivations behind the government bringing this forward in such a short window. It's definitely difficult for us to participate with not a lot of time, but at the same time, it is not atypical of government to bring it forward and try to push it through.
In Nova Scotia, when we dealt with the changes in the legislation, it was very quick. We had a couple of months. We did the best we could. We came forward with some suggestions. Some of those suggestions led to some really positive changes, which my friend Mr. Morris will talk about in terms of the level of kids in care, with things going down and much more positive outcomes for families.
It's because of the relationships. Because we have one agency in the province, we have a good relationship with the Province of Nova Scotia. We have the Assembly of Nova Scotia Mi'kmaq Chiefs and obviously a good champion with Chief Prosper. There are a lot of pieces to the success story we have in Nova Scotia. It isn't just based on legislation.
I'll get into the substantive provisions of the legislation that we see needing to be looked at. Too, I think it's important for the committee to note that we don't see this as co-drafted. Bill was not something on which we had anything other than one opportunity. There was an engagement session in October of 2018, but we don't see this as co-drafting. As I already indicated, I also do not see legislation as being the only agent of change. There will have to be the relationships, the funding, the infrastructure, the transition and all of these other things.
We're asking that funding provisions be added to the preamble. I think the word “need” needs to be substituted for “call”. Again, all of these substantive provisions will be provided to you so that you can look at the written text. We're asking that the provisions from the preamble be brought into clause 18 as well. Those are the jurisdiction provisions. We're not asking for changes in wording, other than inserting the word “need”; we're using the preamble language that the Government of Canada has already put forward.
We're asking that paragraph 20(2)(c) also include provisions with respect to funding principles—not formulas, just principles. If those funding principles are not included in the legislation, it makes it very difficult for us to negotiate those coordination agreements.
We're asking that in subclause 18(1), the United Nations declaration on indigenous peoples also be included as a recognition tool. So this subclause would mention not only section 35 of the Constitution Act but also the United Nations Declaration on the Rights of Indigenous Peoples.
We're asking that Jordan’s principle be specifically mentioned in paragraph 9(3)(e).
We have some suggestions on the best interests of the child in subclause 10(3) that will allow some space for the inherent indigenous legal and community standards. That's a fairly important piece of the bill. I think it's really important to give indigenous communities some space to allow for their own community standards and traditions to be interpreted while their own legislation is being drafted.
A lot of these provisions won't be applied if they have their own legislation, but in the meantime, there's going to be a transition period and there should be some opportunity to allow for those inherent legal and community standards to come into play.
Paragraph 10(3)(g) we have concerns about. I think, quite frankly, it's in the wrong place. Normally in provincial legislation you see family violence as a reason to remove children, not in a “best interests” section. We are recommending that it be deleted because it may very well confuse people.
The definition of “care provider” unfortunately appears to include allowing foster parents to have standing in a legal proceeding. That's not normally what we see. In fact, provinces and territories in Canada, except Manitoba, do not permit foster parents to have standing in a legal proceeding. There are lots of problems and delays caused by that. Those are our concerns with the definition, and we have provided you with specific wording to amend that.
A voice: Which section is that?
Ms. Jennifer Cox: It's the definition of “care provider”, so it's in the definition section. We've proposed specific suggestions to change that.
On subclause 31(1), the five-year review provision, we're asking that you consider making that three years instead because there are a number of different things that have to be looked at here.
We've given you some suggestions with respect to the notice provisions, clause 12. We have a band notice in our form that has been co-developed by the Province of Nova Scotia. We've provided you copies of both the notice and the response that the bands can complete. We think those might be helpful in terms of clause 12 and what we can do when we're given an opportunity to participate. The Province of Nova Scotia and the family courts in Nova Scotia did give us an opportunity to participate in that type of process, and that's the work we are able to do when we work together.
Those are my comments.
Thank you, Chair, and thank you to the committee for inviting me at the last minute and allowing me to join the panel.
I have practised in the area of child protection for 20 years. I've been in-house legal counsel with Mi'kmaw Family for the last three and a half years. It was my primary client prior to going in-house.
I guess one of the reasons why the chief asked me to come along today and join the panel is to talk a bit about some of the changes that have been made, because in Nova Scotia there are the amendments to the legislation that have happened, which are significant and important, but they just happened on March 1, 2017. This is at the beginning stages in terms of what that means for change, but certainly, in the 20 years that I have been involved with litigating child protection matters, I've seen a change within the agency in Nova Scotia.
For those who aren't aware, when I refer to “the agency”, Nova Scotia has an organization called the Mi'kmaw Family and Children's Services, through a tripartite agreement of the province, the federal government and the 13 chiefs. They provide all family and children's services for the Mi'kmaw who reside within the geographical communities within Nova Scotia. It is a situation in Nova Scotia where there is an existing agency that provides child protection; however, they currently are providing that service under a provincial mandate. We don't have a separate policy manual. We operate under the Province of Nova Scotia's child protection manual.
Initially, certainly when I started doing this, this was something that was fairly rigid in terms of how it was applied and often would result in more significant interventions taking place, resulting in more taking-into-cares occurring. Much of this had to do with looking at extended family placements and the policies that were in place in terms of having checks done in advance before children could be placed with families, and in terms of having situations where, even if there had been no issues over the last five years with children living in that home, there was a criminal conviction from seven years ago and that person couldn't be considered an extended family placement for children who couldn't remain with other family.
One of the things we have seen without the legislation was that the province worked co-operatively with our agency to do representations to INAC or the organization that preceded INAC to obtain funding, because our agency was underfunded. The number of case files per worker was well beyond the provincial average. Our workforce was substantially increased, and this resulted in an ability for the agency to begin, I think, to provide less intrusive and more and better service to the families they served. It allowed workers the opportunity to take the time to locate and explore family placements before taking children into care. When I say “time”, often that's just three or four hours, or an afternoon. That's taking place now, instead of intervention happening quickly, children being placed in care and then having a long, laborious process to clear placements to allow the children to go home.
The practices and policies in place changed how child protection services were delivered, how children and family services were delivered within the communities. When I started doing this in the late 1990s or early 2000s, the majority of files that I was going to court on were temporary care and custody files. Children had been taken into care and the agency would be providing services to address those issues before the children could go home. If it was going to be for a longer period of time, it would be weeks to months before family placements could be approved. Once the workforce was increased, the funding was increased and the level of service was increased, the agency was able to focus on how we could better meet the needs of the families and children we served, find a way to keep children with their families and their communities, and try to reduce the number of removals.
I did tally the numbers. I don't have the numbers from when I started out, because I was one of the junior lawyers working on the files that the lawyer I was working with would assign.
When I tallied the numbers last year, 49% of our files were supervision orders, which means the children are still with one of the parents or both of the parents. Twenty-six per cent were customary care supervisory orders, which means the children were not taken into care but placed with extended family, someone else within the family of the children. Thirteen per cent of kids who were taken into care were in kinship placements. Again, typically, this would have surrounded a funding issue of some sort, where we would have extended family who couldn't afford to care for the children under a supervisory order because there was no funding associated with supervisory orders; you only receive funding if the kids are taken into care. Then, last year we had 12% who were in true, temporary care, in foster homes without family.
It was almost a complete reversal from 20 years prior, when I started doing this, at which time 75% to 85% of my files were temporary care and custody. Now, 75% are family placements with half of the temporary care and custody placements being with family.
We do see this as an opportunity with the rights recognition. The funding piece is going to be key, because it's the provision of services to the families that will effect the real change for families. That can be done through policy as well as legislation.
I think I'm at my seven minutes, so I'll wrap it up there.
I think the main reason I was asked to join the group today was to provide some of that information.
Thank you very much.
Thank you, Madam Chair and committee. I apologize to the others here for crashing their presentation, but I thank you for the opportunity first of all.
I will try to be as brief as I can. Some of my opening comments I sent to you a few weeks ago. I didn't realize it was the same committee that I would be speaking to on different matters.
As the chair has noted, my name is Duane Smith. My English name anyway is Duane Smith. I am the chair and CEO of Inuvialuit Regional Corporation, which represents the very far northwest of Canada bordering Alaska. The area I represent is just under one million square kilometres, two-thirds of that being a water body.
I will cut to the chase on some matters so I can spend some time on some points. As you're aware already, we signed an agreement—when I say we, I mean Canada and us—for us to implement the arrangements we had under the agreement together, which is called the Inuvialuit Final Agreement, back in 1984. It's the second-oldest modern-day treaty we have within Canada.
As I've said and I will reiterate again, the IFA belongs not only to the Inuvialuit but to Canada as well. That's partly why I'm pleased to be sitting before you today, because we have to work together with Canada on issues such as the one I'm here to talk about, on how we can improve and implement our obligations under that treaty.
The ISR itself has six communities. I will skip over parts of it. I do apologize to the interpreters since I'm cutting and pasting because I have been injected into this section here. We do have roughly 6,300 or 6,400 Inuvialuit scattered across the country, mostly within our region.
Before I get into the part about supporting Inuvialuit children, I will mention that I was sitting in the back listening to the Mi'kmaw presentation. I can't state enough my support for the comments and the recommendations they have made to date, because I've heard similar recommendations from other parties including other Inuit organizations.
I would like to turn to some of the things we have been doing to try to support our children, youth and families in the ISR, as it's referred to, or the Inuvialuit Settlement Region. One of the three principal objectives of the IFA is to preserve Inuvialuit cultural identity and values within a changing northern society. Healthy families and communities in which children and youth feel included and supported are essential to the preservation of cultural identity and values.
As most of you may know, since 2014 the Auditor General of Canada has identified serious deficiencies in the delivery of child and family services in the Northwest Territories and in the structures intended to support this delivery. These findings disproportionately impact indigenous children in the territory as over 90% of the children in care are indigenous. At that time, the Auditor General also said that this government could not even identify where some of these children were located.
Then last year, in 2018, the Auditor General did another report. The basic findings were that it was actually getting worse. I don't know how it could possibly get too much worse than having the government not even able to identify where some of these kids were being kept in custody, but now it's getting worse.
IRC has been doing what we can to manage these deficiencies so that our kids do not fall through the cracks.
One example of that is that we provide what we call student and family support workers. The SFSWs were identified as a need in order for schools to connect with families and communities, and I made it a priority when I was first elected in 2016. We use the funds we receive to maintain one staff person for each community. These individuals work out of the schools and provide assistance to students and families of students to ensure that Inuvialuit kids are getting to school and are supported through their school years.
In another example, since I became chair, we have been trying to work with territorial and provincial governments to ensure that children who become government wards or who are adopted into non-Inuvialuit families get a chance to register and ultimately enrol with us. In some cases, Inuvialuit children are removed from their families and sent to places from where it is very difficult and expensive to return to the ISR.
Once we find the child in the system, we try to reach out and provide materials about our three Inuvialuktun dialects, the history of the region and traditional activities. When our records show that a child is about to turn 18, we ensure they have the forms they need to apply to the Inuvialuit Trust. Our staff remains on hand to offer any guardian who wants to know more about the IRC, the ISR and our Inuvialuit communities.
I'll digress again for a moment here just so you understand the government system where a child who turns 18 is put into a hotel for a period of time and then left on their own after that to look after themselves without being given the basic skills to do so. We do have a problem here.
Before 's emergency meeting and the attention that the development of Bill brought to the issues facing indigenous children, youth and families, it was very difficult to get traction with some provincial and territorial governments. While individual staff members were well meaning, the framework for involving Inuvialuit organizations and sharing information was weak.
Bill is not perfect, but it is an important step. In our case, we hope that it will provide guidance to the Government of the Northwest Territories as it sorts through the many increasing deficiencies that the Auditor General has identified.
In terms of comments on the bill, I'll turn now to a couple of key elements.
As noted earlier, the transmission of our culture and language, as well as knowledge of and appreciation for our region, are key to preserving Inuvialuit cultural identity and values within a changing northern society. The principles under clause 9 of the bill give appropriate weight to these things. In particular, we see paragraph 9(3)(d), which acknowledges a role for indigenous organizations, as essential.
Clause 12 of the bill, which requires the service provider to provide notice of a measure to the child's parent and the care provider, as well as to the indigenous governing body that acts on behalf of the indigenous group, will greatly benefit the work that we are trying to do on behalf of Inuvialuit children wherever they are.
With this clause, I would note that the implementing regulations are going to be important. My staff tells me that an obstacle in getting information to indigenous organizations is the intake procedures of the responsible jurisdiction. In some provinces, Inuit did not even have a check box that the social worker could mark. All kids are simply “first nation”, so we have a branding problem here. The categorization of indigenous children within the various databases will have to be done on a more granular basis. This is the only way that social workers will be able to connect the child with the relevant indigenous organization so that notice can be provided.
Clause 16 of the bill addresses the priorities considered in the placement of children. Because of our remote location within Canada and the difficulty children have in visiting their home community once removed, Inuvialuit would like to see some priority placed on geographic proximity of the placements. If this is not possible, we would like to see some provision for maintaining the connection between the child and the home community or region.
As a final comment, as we are working through some challenges in our self-government negotiations, we note the importance of the coordination agreement provisions under clause 20 of the bill. These provisions would allow the IRC to request a coordination agreement with government in relation to the exercise of the legislative authority on, first, the provision of emergency services to ensure the safety, security and well-being of indigenous children; second, support measures to enable indigenous children to exercise their rights effectively; third, fiscal arrangements related to the effective exercise of the legislative authority; and, last, any other coordination measure related to the effective exercise of the legislative authority.
The ability to exercise our traditional governance over child and family services, as it is called in this modern age, is key to ensuring our children have a sense of identity and belonging.
In conclusion, we look forward to working with the federal government on the development of the regulations that will help implement this act when it comes into force.
Thanks for your attention and interest. I am happy to take questions.
I don't necessarily see it as creating a difficulty between us and the province. The concern that I think we see is that we have in the amendments the notice to bands that's being provided. When our agency starts an application, I notify the band that we're intervening: this is the type of intervention and this is who the child is being placed with.
I see in the federal legislation that there's going to be notice provided but no identifying information. I'm trying to equate how I put the band in a position to step in and start to assist. In a lot of cases, when we provide that notice to the band, the band can reach out to the family and find out if it's a housing or financial issue, those types of things, to begin to intervene. That's just one thing that is of a concerning nature.
The other was mentioned by Ms. Cox about the definition of “care provider”. The legislation in Nova Scotia currently clearly outlines that a foster parent is not a party to a proceeding. The goal is addressing the protection issue and transitioning the child back to the original caregiver, back to the family member.
When that issue has been addressed to the satisfaction of the agency, the family and the court, we're concerned if a foster parent under that “care provider” definition would suddenly have standing, as we've heard that's an issue in other provinces that don't have legislation that says a foster parent will not be a party in those proceedings.
Those would be two examples of things that would be concerning, where this legislation would take priority wherever it conflicts with provincial legislation.
With respect to subclause 10(3), we've asked just to add a little more wiggle room into the beginning section. Where it starts:
To determine the best interests of an Indigenous child, all factors related to the circumstances of the child
We say it should continue with “shall first be determined by the inherent Indigenous legal and community standards”. This is where I say give some room for the communities to immediately allow recognition of their standards in the best interests section.
With respect to the substantive equality and cultural continuity, those are good principles but they're not in the best interests section. They should be cross-referenced in the best interests section because best interests are given some paramountcy here, some significance within Bill . Because cultural continuity and substantive equality are good principles, they should be in the more substantive piece, which is the best interests section.
Finally, my other concern that I mentioned was the family violence piece, because it's in the wrong place. I don't know what else to say other than, when we do child protection files and when we look at child protection files, we look at the reasons children should be removed from the care of their parents. Family violence is usually one of those reasons. It's not a best interest issue. It's more a reason for protection concerns. Those provisions are in the legislation across Canada. We don't need to add anything more on that factor.
I think it goes without saying that we would see that children should live without boil-water advisories, without family violence, without some of these protection factors, so it's just not in the right place.
Thanks for the question.
To give you some perspective, I always say that it's nine hours by jet to get to my community but I'm still in the same country. I think it would really help if there were regular tours by people like you, in your positions, to visit different jurisdictions of the country, so it's understood just how vast it is and the issues that Canada has to undertake on this scale.
In my area, the initial service centre would be my community, but if it can't be addressed there, then it's sent 800 kilometres south, if not more, to Yellowknife, which is the capital. From there, which still has limited ability to provide various services, the individual who needs some kind of a health service is then sent to Edmonton, which is 3,200 kilometres south of me.
Some of these children we're talking about—let's be fair about all of this—may have FASD or whatever it is, where you're not going to get that specialized service, etc., within small communities or jurisdictions like mine. At the very least, they should explore how to keep them closer to home. For children who are taken because the mother and father had a spat and the social worker doesn't think they have the ability to look after them, that's where the system is failing us, where our rights within our area are not being recognized or respected, regardless of this legislation.
We have that right and recognition already within the IFA. It's just that the governments, both federal and territorial, are not respecting it. We've not had this process to sit down like we are now, to come up with an opportunity to discuss developing improved processes that reflect our culture, our ways of addressing such issues. We need to have the opportunity to look after our own children first of all, so that they're at least kept in a cultural environment so that their identity is understood and they're exposed to the culture.
Geographically, it's a different scale here.