Indigenous and Northern Affairs Committee on April 30th, 2019

[Laurie Sargent]

Yes, I just wanted to clarify that it is, of course, in the preamble of this bill as an overarching commitment to implementing the UN declaration. Just to provide some nuance to that response, the declaration itself—it's true—doesn't speak specifically to child and family services. There are of course many provisions that relate to children and families generally and the principle of self-determination, which I would say very much underpins this legislation. However, as Isa pointed out, there's not quite the same level of specificity as it has in relation to language.

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

When you say self-determination, what do you mean for the average Canadian? What exactly does that mean in this legislation, and why is it important?

[The Chair, Liberal, MaryAnn Mihychuk]

Please provide a very short, clear definition.

[Isa Gros-Louis]

It's the power of a group to decide their own fate and their own path.

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

And that's in the legislation?

[The Chair, Liberal, MaryAnn Mihychuk]

Okay.

[Isa Gros-Louis]

Yes.

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

I'm just getting it on the record.

[The Chair, Liberal, MaryAnn Mihychuk]

We're moving on to MP Cathy McLeod.

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

I think I want to pick up where we were going earlier with Ms. Sargent. First of all, you talked about different case law, so if you could table that case law with the committee, that would be very helpful.

As I understand, you're using subsection 91(24), and it is not totally defined. What I perceive is that this legislation is defining the authority. Is that accurate?

[Laurie Sargent]

Well, this legislation certainly recognizes an area of jurisdiction in relation to indigenous governments, essentially, governing bodies, which is a section 35, aboriginal-rights framed piece. The legislation itself I would say is founded on subsection 91(24) as a basis for federal jurisdiction in this area.

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

Section 35 rights typically have been defined through court cases. Can you also table with this committee the legislation that has been created by parliaments that have defined section 35 rights, as opposed to a legal process having defined it? Has that happened frequently? Can you clarify that piece?

[Laurie Sargent]

This is novel, I will say. This, and the indigenous languages bill are probably the first two instances where Parliament has decided to speak to the recognition of indigenous rights, section 35 rights; and it does flow from the approach this government has taken in relation to recognizing rights without awaiting judicial decision-making.

In relation to case law and so on, I'm happy to table a couple of different decisions, but, ultimately, there is no decision that's directly on point.

One resource I can point you to that I think would be of great use is an article by the honourable justice Sébastien Grammond that was published in 2018 in the national Journal of Law and Social Policy. It's readily available online, but I'd be happy to table it as well, through the Department of Indigenous Services, because it gives an excellent overview of existing law, the provincial basis for legislation in this area, and speaks to both the subsection 91(24) and section 35 aspects. It's an excellent compilation—better than just reading the individual cases.

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

Thank you. That would be really appreciated and I think very helpful.

Mr. Tremblay, it's interesting as I go through this legislation. I did talk about that prenatal issue when delivery of prenatal services is clearly a provincial jurisdiction. One of the gaps is that this is absolutely silent on people as they age out—and we know there are significant challenges in this regard. I would have thought it might be more appropriate to identify that and make it a part of this legislation than perhaps the section I just talked about. We know that our youth, and I guess I still consider.... I used to think 18 was an adult, but the older I get....

[Jean-François Tremblay]

You get a different point of view. I know the feeling.

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

But we know there's a real gap. We know that 18-year-olds and 19-year-olds end up with huge challenges, so why are you completely silent in that area in this legislation?

[Jean-François Tremblay]

First off, I want to say that this legislation does not fix everything. It's legislation that is part of a general process of reforming child and family services and addressing the needs of first nations, Inuit and Métis. It's not the only thing we're doing. What the legislation is so good at doing is putting the legal framework in place. The legal framework is to say what it says, including the recognition of jurisdiction that could not have been done without the legislation, from our point—

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

You delve into prenatal, but you don't go into—

[Jean-François Tremblay]

We are looking at all of those areas, but we also believe that a lot of those issues would be better addressed in a discussion with the rights holders and the first nations, Inuit and Métis. There's no one-size-fits-all approach across the country to child and family services. It would be an interesting Tower of Babel, if I could say that, if we were try summarize that in one bill.

The best thing, as I mentioned before, is to put the framework in place so that those discussions can happen. But it's not the end of a process; it's the beginning of a process. It's a journey that we're starting.

Those questions are the right ones, but they are questions that the legislation cannot answer from Ottawa. It's going to have to be through the processes.

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

I can think of a delivery organization in British Columbia that has a delegated function. They take on both on reserve and off reserve in terms of the work they do. The agreement was signed many years ago.

Technically, what's going to happen to them in terms of the evolution of their next step? They have already drawn down, on and off reserve, so what difference is this bill going to make to them?

[Jean-François Tremblay]

The difference would be more the discussion. If they're doing a great job and the first nations that are working with them say they are doing a great job, I don't expect there would be a lot of changes.

Exercising jurisdiction doesn't mean you're going to pass a law tomorrow. If you look at a lot of the first nations law under self-government, they have jurisdiction in education, health and many areas. They don't necessarily pass laws on all those issues. In many aspects, they take part of the legislation or the rules that are already put in place by the provinces.

It's going to be the same case here. You have to have first nations, Inuit and Métis questioning what is best for their children. In some cases, they will work with agencies that they like.

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

This is a first nations-led organization.

[Jean-François Tremblay]

Okay. In this case, if the first nation-led organization is well perceived by the first nation itself, I don't think they're necessarily going to change it.

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

It's created by them.

[Jean-François Tremblay]

It is not necessarily there to replace good practices. It's there to help the ones who want to do something different to have the tools to do so.