Indigenous and Northern Affairs Committee on April 30th, 2019

[The Chair, Liberal, MaryAnn Mihychuk]

We need to move questioning now to MP Cathy McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you. Thank you to all the witnesses. I have a lot of different lines of questioning but I do want to pick up on what you just said, Chief Prosper.

What areas might create challenges? We all know that different provinces are in very different positions. What in this bill might create a challenge in terms of your current relationship with the provincial government?

[Chief Paul J. Prosper]

Thank you for that. Perhaps I can defer to Mr. Morris who certainly can articulate that better than me.

[Paul Morris]

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.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

You said, I think, that the jurisdiction is in geographical communities. Is that only on reserve, or is it the whole...?

[Paul Morris]

It's on reserve.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Would you see an enabling opportunity under this legislation to allow some work off reserve? Is that potentially a possibility?

[Paul Morris]

I think the long-term goal of the initiative that's going forward in Nova Scotia is for that to be the case, and this would get back to the funding and manpower issue, as we currently have the manpower to deal with it only on reserve.

About half of the Mi'kmaq population, I think, live off reserve. Geographically I don't think it's an issue, because we are all over the province anyway, so it's not that we're relying on the Department of Community Services for the Province of Nova Scotia geographically. The issue would be the number of files and that sort of thing.

We'd have to ensure that we have funding to grow the organization and grow the infrastructure for it to provide those services.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

Ms. Cox, you talked about the best interests of the child, and we also had a lot of conversation about the best interests of the child in our previous committee. I don't know if you were here to hear that dialogue that went back and forth.

It sounds like there are some issues there. Can you talk a little more about your concern regarding the best interests of the child section, as it's written?

[Jennifer Cox]

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 C-92. 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.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

You said you were given the bill a week before it was tabled. That was the full copy of the bill, was it?

[Jennifer Cox]

They called it a “consultation draft”. It doesn't necessarily reflect exactly what's in Bill C-92 now. There were some changes that were made in that week, but there are also things that were added to it that we had never seen before. One of them is paragraph 10(3)(g), the family violence provision, which was not mentioned at all in the draft consultation bill.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Mr. Smith, it's a puzzle that things could go.... The auditor brings something up and it goes from bad to worse.

Have you any sense of how things are continuing and why they're continuing to spiral from bad to worse? Typically governments take the Auditor General's reports very seriously.

[Duane Smith]

I am not the government of my area. I can't answer that, but the observations and the recommendations are in the Auditor General's reports.

The reason we're supportive of this legislation right now is that we want to finally have our rights recognized to look after our own children in a process that we could come to an agreement on. That would include infrastructure and investment in our organization where we could possibly take this on, again, in a process that we can work on together, because at the very least, I don't think we can do any worse. We were doing pretty good raising our kids 150 years ago, so I think there is an opportunity here for reconciliation to be a very strong part of how Canada progresses with our obligations to implement the IFA, at the very least, as it pertains to the welfare and the well-being of the children of my region.

[The Chair, Liberal, MaryAnn Mihychuk]

We need to move questioning to MP Rachel Blaney.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Thank you, Chair.

Thank you all for being here today. I really appreciate your time and your testimony.

We've heard a lot today about the concern around funding.

Cindy Blackstock was here earlier and her recommendation was to look at the principles of the Canadian Human Rights Tribunal, which really speak to having equity for indigenous children that's comparable to all Canadian children.

I'm wondering if you have any thoughts on having something like that being directly in the legislation.

[Jennifer Cox]

From my perspective, the preamble does a fairly good job of recognizing the substantive equality that came out of the Canadian human rights decision.

We don't have a lot of qualms about the wording in the bill. There's one change that we're suggesting to that preamble that speaks to funding. It just needs to move into the body of the bill.

The preamble doesn't have the same strength legally, as it does if it's in the bill. We're asking that it specifically go into the jurisdiction provisions, the recognition of the inherent right, because you need funding to assert your right and also when it comes to negotiating your coordination agreement. So when you're taking on the responsibility and you're negotiating with the territorial and provincial governments, you include the funding provision that's based on that substantive equality.

When you get a chance to see the written submissions that we've made, we've suggested text on that.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Thank you. I think it's important that people understand that if it's in the preamble, it's not the legislation. That is the biggest gap that you're identifying for us there.

I'd like to come back to Mr. Smith.

You talked about the geographic region, section 16, in terms of the placement of children, and looking at the geographical area where they're going to be placed.

I'm wondering if you could talk about that. I think it's important to get it on the record. I represent a more rural and remote community, but you take that to a whole new level compared with my region. A lot of people don't understand just how far away that can be and what that means in terms of access to community and access to other relatives.

Could you speak to that and why that's so important in this legislation?

[Duane Smith]

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.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Thank you so much for that.

The last question I have is this. Earlier you were speaking, Chief Prosper and Ms. Cox, about this not being co-drafted. I'm wondering if you can expand on what you mean by that and maybe use the example of what you've done with your province to look at how those things could be done in a more supportive way.

[Jennifer Cox]

I think we need to look at—and this is also something that we've attached for your information once you get the translated version—the notices that were developed.

The co-development meant we actually sat down and looked at draft forms. We all worked together and asked questions and had the ability to include what we wanted in this, especially the form that comes back from the band and what is in that form, because we wanted to generate support from the community and we wanted to ask the right questions in the form so that the community knew the court wants to know about this and the court wants to know about that, and what it can offer. That's an opportunity for co-drafting because we looked at the documents beforehand and we all had an opportunity to collaboratively determine what we wanted in them.

When it came to Bill C-92, we were given it a week before. We're all working off the corners of our desks because this is not something I can pay attention to within the scope of everything else I'm doing all the time. It's burning the midnight oil looking at Bill C-92. That's not an opportunity to really give the proper input, and we could have made some suggestions, as we have now been able to do, that maybe would have been helpful.

It would be good to even give us a month or two to actually look at a draft bill and then have some input and make some suggestions, because maybe we do have some good ideas and we could come to some sort of consensus or at least have the opportunity to feel we've been heard and not been rushed. It's just not.... Nothing's perfect. We're all under a lot of pressure, but to have the opportunity to sit down, look at something and have some opportunity to provide some input, that would be all we would have been asking for. That would have been more like co-drafting.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Thank you so much.

[The Chair, Liberal, MaryAnn Mihychuk]

We now move to the five-minute round. No, sorry, we have one more seven-minute round with MP Robert-Falcon Ouellette.

[Robert-Falcon Ouellette, Liberal, Winnipeg Centre, MB]

Thank you very much for coming today. I very much appreciate it.

I'd like to highlight some testimony we heard from Laurie Sargent from Justice Canada. She did say this was the first time really in Canadian history that the government has made such substantive changes and speaks to such a degree to section 35 in actually starting to fill that out and breathe life into it.

I have very quick questions that I know.... I'm just going to try to go through them very quickly.

For the people who live outside the community, who should have jurisdiction? If people do not live in your community or on your reserves, who should have jurisdiction?

[Chief Paul J. Prosper]

Just as a point of clarity, do you mean Mi'kmaw people, for example?