On 1 January 2020, Canada’s Federal Indigenous Child Welfare Bill (C-92), an “Act respecting First Nations, Inuit and Métis children, youth and families,” especially the ways in which they can now exercise their inherent jurisdiction over children in their communities, kicked into effect amidst funding, planning, and oversight criticism. Recognizing the importance of preserving each child’s cultural, familial, and territorial connections, the bill operates on a key principle: the child’s best interests. Marc Miller, Minister of Indigenous Services, described this as a “new chapter in Canada’s relationship with Indigenous Peoples, designed to improve the health and well-being of indigenous children and youth now, and for generations to come.”
Further support to indigenous children in care will be implemented in ways including by ensuring that they stay connected with their language, culture, and community, and by reducing the number of children separated from their families only because of financial, health, or housing challenges. Every indigenous child and family services provider will have to apply the basic principles set out in the Act and will always have to consider “the opportunity for providing services that maintain a connection to their culture.”
However, critical concerns regarding implementation, zero funding, lack of education for social workers, and the vagueness of the “child’s best interests” principle have drawn backlash and uncertainty across Canada. In opposition to C-92, Nishnawbe Aski Nation asserted that the bill fails to “affirm exclusive First-Nation jurisdiction over our children and implies that non-indigenous governments can determine outcomes for indigenous children.” Although the bill recognizes the importance of cultural and community connections, it “ultimately enforces a status quo system that can override First-Nation jurisdiction.” Handley Friedland, co-lead of the Wahkohtorian Indigenous Law and Governance Lodge at the University of Alberta, also acknowledges that the “child’s best interests” judgment is a double-edged sword, its vagueness leaving judges with “almost limitless discretion” to exploit. She cites that repeatedly, judges have made “best-interests” decisions based on how they grew up and what they found useful – not necessarily what would benefit the child.
Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, warned that “any suggestion the bill was co-drafted is erroneous.” Although the bill promises that the groups would be allowed to develop their own child-welfare laws which would prevail over federal or provincial laws, draft legislation submitted by First-Nations and child-welfare experts was rejected by the federal government. First Nations and Métis Partners are also concerned about the lack of collaboration with provinces and territories. Grand Chief Arlen Dumas affirmed that the Assembly of Manitoba Chiefs was not consulted and will therefore not support the changes. Dumas considers that “the overhaul will not give First Nations control of their children but perpetuate how things are done now. The new model is set up so that agencies get more money as more children are seized from their families.” The bill, he further contends, is “actually further away from the spirit and intent of how First Nations wanted to work within child welfare.”
Although this recognition of inherent jurisdiction is the result of decades of research, advocacy, and testaments, the government still has a long way to go in order to dismantle the system that perpetuates the undermining of indigenous children. As Blackstock advised, the best people suited to making the “child’s best interests” determinations “are those who are working with the child, not federal bureaucrats or politicians.” The government must ensure, first and foremost, that people who have not seen the child, much less ones without training in this area, cannot overrule the views of families and professionals. Until the First Nations can hold Canada legally responsible for not meeting its obligations to First Nations children and their families, the intergenerational socio-traumatic cycle will continue.
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