Indigenous and Northern Affairs Committee on Feb. 10th, 2011

[The Chair, Conservative, Bruce Stanton]

I call the meeting to order.

Welcome to the 47th meeting of the Standing Committee on Aboriginal Affairs and Northern Development. We have a busy two-hour meeting in front of us today.

I would like to begin by welcoming Kha Shade Héni Mark Wedge, from the Carcross/Tagish First Nation in Yukon. Welcome, and I appreciate your early arrival this morning. I appreciate your three hours' difference from us. It's just shortly before 6:00 a.m., and we appreciate your commitment to meeting with our committee this morning.

We have one hour set aside for this morning's discussion on two topics. The first is on the issue of child and family services, and the second will in fact be our first meeting on specific claims.

If it's okay with you, Mr. Wedge, we will take the first hour and split it in two. If you have an opening statement on the issue of child and family services, we'll do that first, and then we'll go to questions from members on that subject. Once we wrap that questioning up, we'll move into the specific claims topic, and that should take us to the end of the hour.

If you'd like, please go ahead with the opening statement on the child and family services issue.

Thank you.

[Chief Mark Wedge, Chief, Carcross/Tagish First Nation, Council of Yukon First Nations]

Thank you. Can you hear me all right?

I have a bit of a presentation. We can send it in to you a little bit later.

We've been now working on developing our Family Act, and it's taken over 10 years. We started developing our Family Act before our final agreements and self-government agreements came into full effect. We basically started engaging a full-time panel for five years and a full-time team of over six lawyers, policy workers, and experts for eight years. All this, and the Family Act has still not been proclaimed. In the meanwhile, the Yukon has gone through and changed their act, and there have been very few changes structure-wise to their act. However, we are experiencing some difficulties that I'll get into a little bit later.

At best, we look at the Yukon territorial government's act as a modified British Columbia act. I'll describe our act a little bit first. The Carcross/Tagish First Nation Family Act, as we refer to it, which is our family law, covers the same basic provisions of the Yukon territorial government's act relating to protection of children, but it does not have the same palette of legislation to refer to—for example, the Summary Convictions Act, Access to Information and Protection of Privacy Act, the Territorial Court Act, and the Interpretation Act. The first five parts of our act are fundamentally pioneering new approaches to children and families at risk. Part of the reason that we've done this is that existing legislation in the Yukon act has not addressed our needs as a first nation, as an aboriginal community.

The process we used to develop our act was actually something that the Law Commission of Canada came up and reviewed. Even though they're not in existence today, they looked at traditional law and how it might be incorporated into and work with contemporary law. The way we started our act was by collecting traditional stories and identifying the Carcross/Tagish First Nation values and virtues. We transcribed over 300 traditional stories, and from those stories that related to the family, we pulled out the virtues, and it's around those virtues that we began developing our law and legislation.

We didn't start from the point in the bureaucracy. We started from the point in the community, the family, the citizens, and the children. Basically what we've done is that the five parts focus on the family, clan, community, and family council, and are based on responses of the children in need. We did a fairly significant review of those who had been adopted out and those who were in care. We started looking at how we could best address their needs. The first five parts enabled CTFN to deal with cases without Yukon territorial government cooperation. For example, if CTFN members voluntarily submit to the family council jurisdiction, this could be done today. We have the legislation in place--not that it's binding, because Canada has not yet agreed to it. It's on a voluntary basis, and we can use our family council and begin to implement the framework of it.

The holdup we're experiencing is under part 6, which is protective intervention provisions. These provisions are reliant upon the court and were not drafted until recently, because in the new Yukon territorial government act we expected the mandatory intervention provisions to be significantly changed and made fluently appropriate to the first nation cultures and traditions. We looked at them adopting some of those cultural values within their act. Unfortunately, they did not, so we had to work to redraft our act, our law, on mandatory provisions in ways that would not contravene the principles and values of the Carcross/Tagish First Nation law so that it could stand alone without the Yukon territorial government coordination of services and would not create confusion for social workers, judges, justices of the peace, and families through the development of two very different legal regimes.

So our intent was to develop law that would work with both Canada's and the Yukon's existing legislation.

Again, to reiterate, when the Yukon Territory recently amended their act, we expected they would work with our treaties and with our law-making capabilities. Unfortunately, they did not. I just want to point out that we did submit quite a lengthy submission to the Yukon government when they were reviewing it to look at how to incorporate traditional values and the fundamentals of our act. Unfortunately, the legislation did not reflect that. Currently--and I'll get into it a little bit later--we find ourselves in the position of maybe going to court on this.

We finished the final part of our act for consideration by the executive council, which is our first nation council, and for the approval of the final act that we took to the community. In accordance with the general council motion of August 28, 2008, the delegates passed it, and the executive council now is in the process of raising it to law. Unfortunately, right now we don't have the agreements with Canada and the Yukon to bring it into effect.

The creation of legislation takes time, as you recognize. We've been at this for 10 years, and very actively for eight years. We spent significant amounts of money to develop this law to work with the other ones. As the Law Commission of Canada pointed out, this is groundbreaking legislation. It was what the treaties were intended to do when we negotiated them for over 30 years. Our final self-government agreements were intended to provide law-making abilities to the first nations so that the laws would reflect the cultural values and extend them.

I'll give you a bit of a timeline. We started in 1997 with the state of the nation, and one of the first things our community said is that family is important. In 2001, we implemented a clan governance system. This was before our effective date. In 2002, we began to work more efficiently, drafting and bringing the stories into effect. In 2003, we finalized those stories. In April 2005, we had the first review by our community of our act, our legislation. In January of 2006, after we reviewed it, our general council approved it. In October of 2007, we made some amendments to try to fit in with the existing legislation of the Yukon government. In early spring of 2008, the Yukon government informed us there would be no cooperative approach to child welfare, and we were very disappointed with that. In April 2008, the consultation with the Yukon territorial government was suspended. In April we again revised our family act to represent some of the changes we had to make to accommodate the Yukon legislation. Again, in August of 2008, the general council passed the amendments we needed to make so that it would reflect and work with the existing legislation. In July of 2009, we completed the government intervention--part 6--in the components of our act; that was in terms of our legislation working together. In September of 2008, the Carcross/Tagish First Nation initiated our self-government agreement. Section 17 is on negotiations regarding the assumption of authority for child welfare. In December of 2008, we went to Ottawa to lobby on child welfare with INAC and with various government departments.

The deadline of March 31, 2009, for negotiation with Canada passed, and Canada was unwilling to meaningfully participate in negotiations, which it is bound to do under the treaties.

In April of 2009 the chief again travelled to Ottawa to raise the issue of the stalled negotiations.

In May 2009 the chief again travelled to Ottawa and attended the land claims agreement coalition to look at how other first nations and self-governing first nations around Canada were experiencing similar issues and also to talk about child welfare.

In June 2009 the Yukon chiefs attended the western premiers' conference to again bring forth this issue of child welfare and child protection.

Between December 2009 and May 2010, we consulted on the final draft of the legislation. Canada was invited to participate in the consultation but failed to send a representative. These are modern-day treaties that Canada, Yukon, and the first nations entered.

In March 2010 the general council passed a resolution urging a conclusion to this process and the end of child apprehension on the Carcross/Tagish first nation traditional territory.

In November 2010 the Yukon government and the Carcross/Tagish first nation agreed to send a joint letter urging Canada to return to the PSTA table--the programs and services transfer agreement table--to meaningfully discuss child welfare and the Carcross/Tagish first nation family law. We had started the programs and services transfer agreement, which had to do with the funds required. Both Yukon and the Carcross/Tagish first nation identified what it would cost the Carcross/Tagish first nation.

That's the background history.

I have one other point. About a week and a half ago we went to court. The children of one of our citizens had been apprehended. The judges are currently trying to figure out what to do. The grandmother who started their healing process about three years ago when the case started has gone through a healing process and is now ready to take the child, but Yukon law doesn't allow the grandmother to take responsibility for the child. Now the judges have to start figuring out how this works between our law and the Yukon law.

[The Chair, Conservative, Bruce Stanton]

Kha Shade Héni, in the interest of time, we're going to go to questions from members at this point.

Members, we're going to keep this to five minutes, and that will allow us to get through one round. Then we'll see where we are at that point and then maybe move into the specific-claims issue, which was somewhat touched on in any case in your opening comments.

Let's begin. This will be a five-minute round.

Mr. Bagnell, go ahead. You have five minutes.

[Larry Bagnell, Liberal, Yukon, YT]

Hello, Mark. It's great to hear you. I have only five minutes, so I want to get to some important points quickly.

Basically, just to reiterate the fact, you have a land claim and a modern treaty with Canada and the Yukon government that allows you to take down and deliver child and family services.

[Chief Mark Wedge]

That's correct.

[Larry Bagnell, Liberal, Yukon, YT]

So you have the total authority that the federal government has signed off on, and it's your legal right to take down and deliver these programs. Is that correct?

[Chief Mark Wedge]

That is correct.

[Larry Bagnell, Liberal, Yukon, YT]

Quickly, without getting into the technical details, are you seeing roadblocks to the process of being able to take down a service that you're rightfully allowed to do by law?

[Chief Mark Wedge]

Yes. We've negotiated for 30 years. We finally got to final agreements. Our effective date was five years ago. We started working on our law, as I pointed out. We've negotiated and done all the things we needed to do under the final and the self-government agreements, and what we're finding is an unwillingness on the part of Canada to negotiate on the programs and services transfer agreement, which is the funding required to take down the law, and also to participate in making sure that our law conforms and works with their law.

[Larry Bagnell, Liberal, Yukon, YT]

Is the Yukon government being cooperative regarding the costs they would have to provide for as well?

[Chief Mark Wedge]

Yes, the Yukon government has been cooperative in the programs and services transfer agreements, but when we actually requested them to make sure that our law and their law would work together, there was an unwillingness to look at amendments to their law to incorporate traditional values and cultures, which, as the Auditor General pointed out, is the spirit and intent of the agreements.

[Larry Bagnell, Liberal, Yukon, YT]

We do reports with recommendations. What would you like to see as a recommendation from this committee that would help you advance child and family services in your first nation?

[Chief Mark Wedge]

I think one of the things that has to occur is that the Department of Finance needs to take a much more important role and come to the table for the programs and services transfer agreements. The other thing we need to do is make sure that the laws work together. It's really about putting adequate resources towards the implementation of these modern-day treaties. We see that there's not enough commitment by Canada to look at the implementation of these treaties.

[Larry Bagnell, Liberal, Yukon, YT]

You could do some of this stuff voluntarily, but if you were to go ahead and do that and serve your constituents well, you'd actually be using your own money, which is supposed to be used for other things, because Canada and the Yukon have not contributed money yet to enable you to deliver that service.

[Chief Mark Wedge]

That's correct. We had requested that Canada and the Yukon work through section 18 of the self-government agreement. We find ourselves in a catch-22. Canada says they provide the money to the Yukon government; the Yukon government, under section 18, says that there should be no net loss to the government, so we're stuck in this area. Canada believes it's already paying for these services, yet we can't get the funds that are routed through the Yukon government, so it's very difficult for us.

[Larry Bagnell, Liberal, Yukon, YT]

That's a major issue. It involves not just this aspect, but the entire land claim.

This is my last point, because we only have a minute left. Could you briefly describe how your new laws and visions are different generally from family acts in the provincial and territorial governments across Canada? I know you have some very innovative things that are culturally sensitive. If you could outline a couple of points for the committee in the last minute of my time slot, that would be great.

[Chief Mark Wedge]

One of the key points is that our intervention models kick in with the community. The first thing we try to do is reconnect the parents with the children. If that's not always available, we look at the extended family—aunts, uncles, grandparents—to look at intervention. If that's not possible, we go to the clan. As a last resort, our government will intervene. We tried to set up those processes so that the intervention would work with existing legislation. The intervention processes are very important.

The other thing we've done relates to a cultural context. Oftentimes grandparents hold as much weight and authority as parents, but current legislation under the western model focuses very much directly on parents. We know that a lot of times the parents are under stress, but usually as they grow older, they sort themselves out; then a reunification with the family occurs, but it is not in the timelines that the existing laws provide.

[The Chair, Conservative, Bruce Stanton]

Thank you, Kha Shade Héni.

I will now give the floor to the member for Manicouagan, Mr. Asselin.

[Gérard Asselin, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

You mentioned a child who wanted to live with his grandmother. You said there was a problem because the judge did not understand the law. I would like to have more details about this. That will get me to my next question.

[Chief Mark Wedge]

Thank you.

It's not that the judge doesn't understand the law. He understands the law very well, but the law is designed in such a way that it does not permit the grandparents to take the child. Under our traditional culture, the grandparents have a lot of weight in the raising of children, but the current Yukon law says that the child can only be returned to the parents. Unfortunately, the parents are not yet healthy; the grandmother wants to intervene and wants to take the child, but the current law does not provide for that. Under our law, Carcross/Tagish First Nation law, it provides for the grandparents--and aunts and uncles--to take the child.

We have a fundamental conflict in the approaches, so the judge is going to have to rule. He understands the law; it's just that the law doesn't provide for the cultural context that's required.

[Gérard Asselin, Bloc, Manicouagan, QC]

On page 5 of her report, the Auditor General says that First Nations children are overrepresented in youth protection institutions. According to the report:

At the end of March 2007, about 8,300 First Nations children ordinarily resident on reserves were in care. This represents a little over 5 percent of all children residing on reserves (almost eight times the proportion of children residing off reserves).

In your experience, what are the factors that contribute to the high number of First Nations children in care?

[Chief Mark Wedge]

One of the very fundamental things is that with the whole residential school process that we're going through—and it's intergenerational—there was a lot of dysfunction in our communities. What happened early on was that a lot of the children were taken to residential school and separated from the families. In 1962, when the residential school process began to wind down, you'll remember that Canada began a child sweep—it's referred to as a “child sweep”—whereby they began to adopt out a lot of the aboriginal children, because the perception was that the parents couldn't take care of them. There was a large child sweep in which Canada adopted out children: our citizens went overseas. They're in Switzerland. They're in the United States and various parts of Canada, as with all first nations. That's a fundamental component.

The next thing is that how we approach our cultural values. We're starting our healing process. That's why we negotiated self-government in our agreements: to say that we believe there needs to be a different approach to the well-being of children and to the reunification of the families. That's why our family law is based on rebuilding the strength of the family.

A lot of this is the residential school process, which caused a large dysfunction. The next thing is the child sweep in the early 1960s. There's been a huge impact on our families, and a huge crisis.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Asselin.

We will now go to Ms. Crowder.

You have five minutes.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Thank you, Mr. Chair.

Thank you as well, Chief Wedge, for joining us. I know this is sometimes an awkward forum in which to carry on what is a very important conversation.

I appreciated your outlining the timeline, because I think it's important for people to understand that this is a long-standing negotiation and to be reminded that the Auditor General and others have talked about the necessity for the crown to honour not only the spirit but the intent of the treaties. What I'm hearing in your case is that it seems that the crown is honouring neither the spirit nor the intent. I know it's very difficult to speak on behalf of others, but do you have any sense of why the crown is not coming to the table in good faith to implement that treaty that it signed, I presume in good faith?

[Chief Mark Wedge]

We've struggled with it. Obviously I can't speak for the crown, but some of our perceptions are that the current policy--and it's policy, not negotiations--is to look at delegated models as opposed to legislated models. What that means is that I think the current government in Canada wants to see the first nations fall under provincial and territorial legislation rather than develop and integrate self-government legislation.

It's not a slight against Canada or Yukon, but because of cultural values and because of all this background, we come from the point that the fundamental approach from the western law model is what's causing a lot of this dysfunction and this intervention in the child's needs.

When the Law Commission of Canada came up and looked at our family law, they saw it as an innovative approach. We've always maintained that we want our legislation to dance together with Canada's and Yukon's legislation. That's the work that needs to be done, but what I see is a fear or an unwillingness. What I think the deputy minister told us when we were looking at our PSTA is that Canada doesn't want 600 different models of family law.

We developed our law so that it would provide a framework or model that other first nations that are ready to take on legislative authority could adopt and adjust for their community. We've got that in the background. We've tried to work with Canada to make sure it wouldn't make it very complex for Canada. We believe that we have a framework of a model, which is again part of the intent of the modern-day treaties, to begin to look at how our traditional laws work with contemporary laws. It is a model other than a provincial-federal or territorial model that could be looked at.

We believe it will save Canada a lot of money by taking children out of care.