Evidence of meeting #146 for Indigenous and Northern Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was services.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Isa Gros-Louis  Director General, Child and Family Services Reform, Department of Indigenous Services Canada
Jean-François Tremblay  Deputy Minister, Department of Indigenous Services Canada
Joanne Wilkinson  Assistant Deputy Minister, Child and Family Services Reform, Department of Indigenous Services Canada
Laurie Sargent  Assistant Deputy Minister, Aboriginal Affairs Portfolio, Department of Justice
Chief Robert Bertrand  Congress of Aboriginal Peoples
Cindy Blackstock  Executive Director, First Nations Child and Family Caring Society of Canada
Jennifer Cox  Barrister and Solicitor and Project Lead, Enhanced Child Family Initiative, Kwilmu'kw Maw-klusuaqn
Paul Morris  Lead Counsel, Mi'kmaw Family and Children's Services of Nova Scotia
Duane Smith  Chair and Chief Executive Officer, Inuvialuit Regional Corporation

10:20 a.m.

Deputy Minister, Department of Indigenous Services Canada

Jean-François Tremblay

It's part of the discussion. Some of the first nations, Inuit and Métis mentioned that the current envelope that is growing is also significantly, overwhelmingly for protection, so if you reduce protection, can you take that funding to do more prevention? Those are discussions, of course, that we will have to have with first nations, Inuit and Métis for sure.

As mentioned by Joanne, we do cover the actuals for the agencies for both protection and prevention. This money is not going to disappear, so the question is funding the system that the first nations, Inuit and Métis want. I'm not saying that everything in the current system is bad. I'm just saying that those who actually experience this system should have a word to say on what they want.

10:20 a.m.

Liberal

Mike Bossio Liberal Hastings—Lennox and Addington, ON

You made very clear the importance of its being indigenous-created, indigenous-driven, indigenous-led and in indigenous law. We talked about the layers of regulations that could be added on top to work against that process. At the end of the day, if I'm correctly reading your earlier comments, it's the indigenous law that will prevail and, therefore, the regulatory regime that would be associated with that would take precedence over any federal or provincial regulations.

10:20 a.m.

Deputy Minister, Department of Indigenous Services Canada

Jean-François Tremblay

We've been told by some first nations leaders that strong families and strong kids make a strong nation. It means that it comes from there; that's the heart of their identity—with language, of course, and a few other elements.

In this case it's part of the decolonization process, how you make sure that the first nations, Inuit, and Métis decide how they want to address the solution. It doesn't mean that the solutions will be dramatically different in some aspect; it means that they will own those solutions, because they will be their solutions. They will be able to do that.

This is, as you know, a general objective with this department. I am used to saying to my staff that we should be a species at risk looking for its own extinction, because at the end of the day the services have to be delivered by those who actually need them. If you want them to be adapted to the needs of the population, they need to be with those who are on the ground. That is part of this approach.

10:20 a.m.

Liberal

Mike Bossio Liberal Hastings—Lennox and Addington, ON

The feed from that and the strength of this legislation is the fact that it is a framework. It is not a one-size-fits-all approach; every part of the country would have a different solution that could be put forward in order to deal with this.

10:20 a.m.

Deputy Minister, Department of Indigenous Services Canada

Jean-François Tremblay

We have never been able to have any consensus, including among ourselves, if we have tried to define what the system should look like. We have past experience of defining what the system looked like, and that's called the Indian Act. That was not the objective here. The objective is to say, if you want to take it over, you can take it because it's yours; it's your jurisdiction.

The only thing that we put in the legislation is that if you don't take it, we want to make sure that kids will continue to be protected in the future in a better way. Also, if you take it, we want to make sure that there is discussion with other jurisdictions, because we're a federation. We know that interjurisdictional issues exist, and they need to be addressed as much as possible.

10:20 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you.

We need to suspend. We'll be coming back. We'll probably be back at about 10:50 a.m., and then we'll start the next session. Could members think about the way we'll probably have to modify our process so that we allow a decent time for our presenters and the Q and A portion.

MP Ouellette, are you satisfied?

10:20 a.m.

Liberal

Robert-Falcon Ouellette Liberal Winnipeg Centre, MB

I just want to ask on the record about the on- and off-reserve impacts upon children, but maybe the officials could provide the information.

10:20 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

You'll have to wait until next time. Perhaps they'd be kind enough to submit something. We would appreciate it.

Thank you. We're off to vote.

10:55 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you for your patience. We're sorry we had to be away and didn't start in a timely manner, but we're anxious to get going now.

Once again, we're on the unceded territory of the Algonquin people. We are studying Bill C-92, an act respecting first nations, Inuit and Métis children, youth and families, which of course is critically important to all Canadians.

Before us, we have Chief Robert Bertrand representing the Congress of Aboriginal Peoples, and Cindy Blackstock for the First Nations Child and Family Caring Society of Canada.

My note says that Robert will start first, but if you've changed it, that would be fine with me.

Excuse me; we'll have a shorter time limit, so....

Ms. McLeod.

10:55 a.m.

Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Madam Chair, could we take one minute—we don't want to cut into our witnesses time—to set out the logistics?

We have another vote at 11:48, , so if we could perhaps go with this panel until 11:40, that would give us eight minutes to get upstairs.

10:55 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Is that agreed?

10:55 a.m.

Some hon. members

Yes.

10:55 a.m.

Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

We will then have to perhaps adjust the final four witnesses. We can maybe come up with a plan while we're hearing from these witnesses here.

Thank you.

10:55 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Yes.

Is it still the intention that we provide 10 minutes for each presenter, or is it the will of the committee to reduce their presentation time?

10:55 a.m.

Some hon. members

No, no.

10:55 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

You will have 10 minutes each, and then we can discuss whether we want five-minute rounds or seven-minute rounds.

10:55 a.m.

Some hon. members

Five minutes.

10:55 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

We'll have five-minute rounds. Okay, we have a plan.

Go ahead.

10:55 a.m.

NDP

Rachel Blaney NDP North Island—Powell River, BC

I want my seven minutes. That's the only time I get. You guys get multiple times. I only get seven minutes.

10:55 a.m.

Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Let's get the presenters presenting.

10:55 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

We'll discuss this a bit later.

Go ahead.

April 30th, 2019 / 10:55 a.m.

National Chief Robert Bertrand Congress of Aboriginal Peoples

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 C-92, an act respecting First Nations, Inuit and Métis children, youth and families. 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 C-92.

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.

11:05 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Now we move to our second presenter, Ms. Cindy Blackstock.

11:05 a.m.

Dr. Cindy Blackstock Executive Director, First Nations Child and Family Caring Society of Canada

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 minister 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.

He added:

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 C-92, 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 C-92.

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 C-92 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.

11:15 a.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

You are out of time.