Bill C-92 (Historical)

An Act respecting First Nations, Inuit and Métis children, youth and families

This enactment affirms the rights and jurisdiction of Indigenous peoples in relation to child and family services and sets out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children, such as the best interests of the child, cultural continuity and substantive equality.

[Julia Redmond, Legal Counsel, Department of Justice]

To start with the number of references to “Indigenous governing body” in this bill, what is relevant in particular is that this is the operative provision when it comes to recognition. This is the one paragraph that is the most important when it comes to providing that recognition to the Métis governments that are putting forward or are part of this bill.

In terms of the number of references, that's the reason why you're not seeing it throughout. This is also partially a drafting technique. It's used where it's needed, and it's not used where it isn't. It's as simple as that.

As for the term itself, you referenced the definition of “Indigenous governing body” that comes from Bill C-92. That one, as you rightly noted, has a broad scope. It includes things like a council and a band. Here, we're not dealing with a council and we're not dealing with a band. We're dealing specifically with Métis governments.

Essentially, the content of that definition—an explanation of what an indigenous governing body is in this particular context—is spelled out in the provision itself. The important part of that is the notion that a Métis government is authorized to act on behalf of a collectivity. Essentially, it takes that broad definition that's used in very broad contexts—like Bill C-92, which is meant to apply to all manners of indigenous governments—and is applying it, simply, to the circumstances we have in the bill.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair.

I do have a couple questions for the officials today around clause 8 that I think are very legitimate. I want to start by reading the part that I want to flesh out a little bit. The clause itself starts:

The Government of Canada recognizes that a Métis government set out in column 1 of the schedule is an Indigenous governing body that is authorized to act on behalf of the Métis collectivity set out in column 2 opposite that Métis government

If you go to the schedule, it's pretty obvious what that means. The question I have is around the use or definition of the term “Indigenous governing body”. There's no definition of “Indigenous governing body” in this piece of legislation.

Over the weekend, I did some digging and some research. To be honest with you, what triggered my digging on this was that I got the notice of the Senate amendments to Bill C-29. One of the amendments that the Senate proposed for Bill C-29—which I believe is going to be on the agenda sometime this week, but those are moving targets as well—is an amendment to include under “governments” the connection to “Indigenous governing bodies”. That caused me to look a little further for whether there is an accepted definition of that, what it means and how it expands what we're thinking about in clause 8 here. I went further to try to figure out what these definitions mean.

I went to the Métis National Council website, where it has an “Indigenous Governing Body” definition in reference to Bill C-92. That took me to Bill C-92, and there's a definition added in Bill C-92 that defines that—so there are so many other examples.

I said, “Okay, so where do we get the definition, and what do we accept as that definition for this bill?” I thought, “Okay, let's go back to the agreements,” because this legislation is driven by the February agreements with each of the three bodies. Interestingly enough, there is a definition of “Indigenous governing body” in two of those three agreements but not in the third. If we flesh out that definition that Bill....

By the way, these definitions across all these other places are identical. I think they're the same. I want to read one of those definitions. On the Métis National Council website, it says:

An Indigenous Governing Body, is defined in the federal Act, as

“A council, government or other entity that is authorized to act on behalf of an Indigenous group, community, or people that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982 (section 1).”

I'm trying to understand why this term has been added in this clause when the schedule very clearly talks about Métis governments and the collectivities that they represent. Now we're saying that they're also an indigenous governing body, which is a much broader definition, if I read these definitions. It includes other groups. It includes people. It includes communities. It doesn't anywhere in the definition talk about collectivities. It talks about....

Could you clarify for me and this committee the purpose of adding “Indigenous governing body” in clause 8? I did a word search, and that's the only place in the legislation where that term is used. In fact, the word “Indigenous” is only used, I think, five times in the legislation. Two of the times are in the Minister of Crown-Indigenous Relations' title, and two of them are in the title of the United Nations Declaration on the Rights of Indigenous Peoples. The only other place in the legislation where “Indigenous” appears is in clause 8 in “Indigenous governing body”.

I would open it up to our experts here to try to explain to me why that term is there. Then, that'll probably lead me to try to flesh this out on my own a little bit, if you don't mind.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you, Chair. Thank you, Gary.

Thank you, officials.

There is a point of clarification we're working through, and it has been brought up a few times in the testimony over the past few weeks. What would change once this legislation passes, given the fact that Bill C-92 is already an avenue for Métis governments to have control over their children and family services?

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Mr. Chair.

Ms. Murphy, I'm very pleased and interested in your statement on the need for the amendment on kinship and customary care. We know that Bill C-92 has devolved the role for establishing child welfare codes to first nations and Inuit communities. It is so important.

In communities I represent, we have the kokums, the grandmothers, who are raising children. We have cousins and neighbours who are raising children. They are raising them with love, but they are often never recognized. We fight like hell to get them the child tax benefit because we have to prove it again and again. These are very natural ways that children are being brought into safe environments when they are in unsafe environments, when they are at risk or when the parents are not in a position to look after the children. In one of the communities I was in, they said, “We aren't going to take the children out of the homes; we're going to take the parents out of the homes. The children should have safe homes. If the parents are the ones causing problems, we'll take them out, and we'll look after the children in their home.”

From your work, what you've seen and your experience with your council, how important is it to frame language around the recognition of those family realities, for protecting and building loving homes for children?

[Julie McGregor]

If we take Bill C-92 as an example, the child welfare legislation, I believe they were consulted. Bill C-92 is actually a really good example of the difference with first nations. Bill C-92 recognizes the jurisdiction and inherent right of first nations to their children, and that was limited to children.

We are currently awaiting a decision of the Supreme Court of Canada on whether Quebec's challenge to that legislation will be upheld. That just shows you the stark difference in terms of what first nations have to prove and the legal challenges they have to manoeuvre in order to have their inherent rights and jurisdiction recognized.

[Charlie Angus, NDP, Timmins—James Bay, ON]

We just had Bill C-92 pass, which gives the legal right for indigenous first nations to establish their own child and family policies, and particularly to address the inequities that were caused by the adoption of children who were taken out of their communities and lost their identity. Quebec, Manitoba—maybe not now, but then—and Alberta and the Northwest Territories are going to the Supreme Court to oppose this legislation. Have you looked at the potential impact of Bill C-92 and the challenge against first nations communities having the right to set their own adoption and family and child practices in terms of your bill?

[Andrea Sandmaier]

I think every indigenous governing body looking to Bill C-92 is at a different stage. For the Métis Nation of Alberta, we're in year three, I think, of building our authority, model of care and law. It takes time to do it right. We want to make sure we do it right. We don't want to be left, as soon as we do our coordination agreement, saying that we are now the authority over Métis children within Alberta and then get a whole bunch of files dumped on us. We don't want to go there. We know there are other indigenous governing bodies in Alberta that this has happened to.

We want to make sure we're doing it the right way. I don't think it's a matter of it not being implemented; I think governing bodies are taking time to make sure it's happening correctly and that we're doing the right thing.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

What has prevented the implementation of Bill C-92 up to this point? I know many communities in my area have already implemented it. They're doing their own care, essentially.

[Margaret Froh]

Thank you for the question.

I completely agree with Vice-President LeClair.

I think this is an incredibly important part of the bill: recognition of our governments as indigenous governing bodies. Give us the tools we need to utilize Bill C-92, if we need them. That is critically important.

I think she has done a beautiful job talking about the impact of many different colonial policies. The sixties scoop isn't just from the 1960s. There is a child welfare industry, and our Métis children are very much impacted by this. Bill C-53 recognizes our government's right to take care of our own children.

[Michelle LeClair]

Bill C-92 is at its beginning. Right now, we're doing an environmental community scan by engaging our communities to see what the gaps are and why kids are being taken.

When you think about child and family services, you don't just think about children and families; you think about what impacts those families: housing, the high cost of food, the ability to care for them in a clean environment and all those things. There's a lot with Bill C-92. It is an opportunity to look at those issues. Then, if you want to trigger Bill C-92, there's a lot of work to do in terms of legislation. As you know, as parliamentarians, you need to have things done right, especially when you're taking care of children and families. That takes some time.

We are working on that, but we're also working towards this other piece, which I think goes hand in hand with Bill C-92. The right to be able to take care of our families is a huge piece.

I'll tell you a story.

I met a young 16-year-old who was aging out of care. They gave her a book this size and a pittance of money and said, “Here you go. This is who you are.” That's when she realized she was a Métis kid. Her dad was from Buffalo Narrows, Saskatchewan, and the mother was from British Columbia. She had no cultural connection, nor did she know who she was. This happens every single day. I can walk out of here and down around the mall, where people are unfortunately suffering from mental health issues, and probably talk to kids who've aged out of the system.

It's not the provincial government's job or the federal government's job to figure out how to deal with those young people. The problem was created by churches and governments stealing our kids and doing all of that. It is our job to teach them their language and culture, and to meet their mooshums, kookums and families. That's one of the most important things in this legislation—for us to be able to say, “We are an indigenous governing body and we will take care of our own. You didn't do it very well. We need to do it, because we know how to do it.”

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you, Mr. Chair.

I want to thank the witnesses for being here today.

It's interesting. I didn't anticipate all the issues around child care.

I was here when this committee was dealing with Bill C‑92 back in 2019. Ms. LeClair, can you talk a bit about how Bill C‑92 is or is not fulfilling the child welfare issues that your community is dealing with, and why you need this particular piece of legislation to do that?

[Michelle LeClair]

I'll tell you, our communities are struggling. We are in the process of working outside of this with Bill C-92. It really is looking at what is happening to our communities, why the kids are being taken, and what kinds of services these kids have.

We've heard time and time again—and I'm sure everybody hears it across Canada—about mental health services for children. In Saskatchewan, you are on a two-year waiting list to get your child in for any kind of an assessment. People languish. Kids end up in correctional systems, or what have you, because we cannot give them the support they need at the times they need it. There's such a lack of programming. I mean, the provincial government isn't doing a great job of being in loco parentis, which means that the minister is their father. It's ridiculous.

We know. We don't need Canada or Saskatchewan to come into our communities and tell us what we're doing wrong; we know what's happening. It's been systematic. They've been doing it wrong, and it's time for us to take our kids back and figure out our own way to deal with this in our community.

[Michelle LeClair]

We're doing Bill C-92 consultations—which deal with the safety of children and jurisdiction and that sort of thing—in our community all throughout Saskatchewan. What's been really great about that whole process is that we've been able to work with our sisters and brothers from first nations communities to make sure that when we're dealing with families and children, we're doing it right.

I just wanted to make that point, after the red card.

[Dr. Jeffrey Schiffer, Director, Governance and Strategy, Native Child and Family Services of Toronto]

Thank you very much to the chair and to the committee members.

I'm joining you this morning—or this afternoon, I guess, depending on where you are in the country—from Treaty No. 13, the ancestral homelands of the Huron-Wendat, the Haudenosaunee and the Mississaugas of the Credit.

I'm here today to speak a bit about the federal transformation that's under way with respect to indigenous child and family well-being.

Native Child and Family Services of Toronto has served families in the Toronto and Peel area for the last 30 years. We started as a prevention agency and in 2004 began legislated child welfare. We currently serve about 8,000 unique community members annually from across Canada, last year serving members from 207 different first nations across Canada.

I'm here to talk a bit about federal funding with respect to the transformation currently under way through new legislation under the act respecting first nations children and families, formerly Bill C-92, and the impact that's had for service providers who are supporting indigenous children and families in urban centres.

Funding to date has largely been distinctions-based, which means that funding from the federal level is going directly to indigenous governing bodies. To be clear, that's something that Native Child certainly supports. I think what we're seeing is that federal funding trends meant to support Canada's most important relationship, as stated by the Prime Minister—the relationship with first nations—and meant to move reconciliation forward are not always getting to the children and families who require those services.

While funding at the federal level is going to first nations and other governing bodies to do the work, which is largely on reserve and is deeply needed and supported, we're seeing the majority of indigenous children and families across Canada from coast to coast to coast living and accessing services off reserve. That's creating challenges for agencies that are operating in urban spaces that are trying to support the youngest, most rapidly growing and most diverse demographic in Canada, which is indigenous children and youth.

While these children and youth are continuing to face challenges that have been made much more acute by the pandemic and are again being made more challenging by the current economic space, agencies like Native Child are struggling. Understanding that all three levels of government have a responsibility to support indigenous children and that it's a collective responsibility to do that work, I'm here today to speak to some of the things that I think the federal government can do to get ahead of some of these challenges before they become acute and before they become drastically more expensive.

There are three really well-developed mechanisms right now that agencies across Canada can access to support indigenous children and families.

The first is Jordan's principle. That's a funding program that is meant to support indigenous children regardless of where they are. This is just to state that our access to that program really is leading to phenomenal outcomes and to say that the budget coming in 2024 should continue to invest in Jordan's principle so that first nations children can get access to the medical and mental health services they need.

The second program that's well developed is the urban indigenous peoples program, UPIP. That program historically has been quite underfunded, I'll say. The amount of money that's available for agencies working in urban spaces is quite small, given the magnitude of the challenges in front of us with respect to decolonization and reconciliation. We at Native Child encourage the committee to think about how that program could be expanded or invested in, in ways that continue to allow agencies like Native Child to expand the service delivery that we provide.

Finally, I think the most complex equation in front of us as a nation is the recent Canadian Human Rights Tribunal final settlement, which really is going to talk about how indigenous governing bodies begin to create their own legislation and change the way indigenous child and family services are delivered across the country. To date, that's been very distinctions-based. It's been led by the Assembly of First Nations and other parties to the settlement, but urban voices, which are actually providing the majority of the services, have not been included.

As an example, here in the province of Ontario, where a quarter of the children in Canada live, 85% of all investigations involving a first nations child that involve child protection are happening off reserve, and the majority of the funding right now federally is going to on-reserve services. That inequity creates challenges for urban agencies that are trying to get ahead of some of these challenges and support those kids.

Given the status of first nations children and the numerous challenges they face with respect to the history of colonization and current barriers, I think we have some work to do collectively to work across jurisdictions between the federal and provincial governments to ensure funding is available for agencies providing child and family services to indigenous children and families.

I will leave it there and thank the committee for the time. I look forward to any questions later.

Meegwetch.

[Patrice Lacasse, Manager, Early Childhood Services, First Nations of Quebec and Labrador Health and Social Services Commission]

Good morning, everyone. I'd like to thank the committee chair and members for having invited us to come and speak about the realities of indigenous first nations.

I acknowledge that we are in Wendat territory. In fact the commission's offices are located in the community of Wendake. As for me, I'm an Innu from the community of Uashat Mak Mani-utenam.

I represent the First Nations of Quebec and Labrador Health and Social Services Commission. The organization's mission is to help the communities meet their health, well-being, cultural and self-determination objectives. The commission is covers several sectors, including health and social services, research, social development, and child care. Needless to say, all these sectors contribute to the well-being of children. The commission was established in 1994 by the Assembly of First Nations Quebec-Labrador. This body gives it mandates, whether for the secretariat or policy matters. The commission also receives mandates from its board of directors, whose members are the directors of health and social services in the various communities.

With respect to Bill C-35, the main recommendation in the brief submitted last month was about developing a distinct act for indigenous early learning and child care. In this presentation, we will discuss elements that could considerably improve what has been put forward in Bill C-35. The goal is to better address the specific needs and realities of the communities. Even though the bill recognizes the needs and realities of each community, we feel that these are underestimated, whether in terms of access to services, geographical realities or the importance of language and culture.

As for indigenous self-determination, one of the basic principles is the decision-making authority of the first nations. This authority should rest with the first nations. Employment and Social Development Canada's indigenous early learning and child care programs, IELCCs, affirm the right to self-determination and the right to control, conceive, execute and administer an IELCC system that reflects our needs, priorities and aspirations.

There is nevertheless a paradox. The former Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, acknowledged the jurisdiction of first nations and indigenous people with respect to child services. We are therefore asking why Bill C-35 or some other act specifically for indigenous people, might not acknowledge this jurisdiction. Canada also recognizes the United Nations Declaration on the Rights of Indigenous Peoples and has been working to implement it in its statutes. The government acknowledges the self-determination principle in the IELCC programs. However, the jurisdiction of the first nations and the Inuit over child care is required to implement these programs as effectively as possible. These powers need to be restored to the first nations.

For the implementation of the IELCC programs, the communities recently distanced themselves from the usual methods. Indeed, it was only last year that the organization signed an agreement with Employment and Social Development Canada. In order to show consideration for the powers of the communities, we recommend local coordination and mobilization. Early childhood is everybody's business, and not the preserve of a single sector. We would like to promote decompartmentalization. We have been straitjacketed for too long by certain programs. We would therefore like a development plan based not only on conditions, but also needs. The idea is to make sure that the measures introduced are aligned with children's needs, and also their environment, by which we mean the family and the community.

I'll stop there, because I've run out of speaking time.