Indigenous and Northern Affairs Committee on April 30th, 2019

[Chief Paul J. Prosper]

Sure. Thank you.

Honourable committee members, good afternoon. Kwe natuptut. We're honoured to be here on the traditional lands of the Algonquin people.

My name is Paul Prosper. I am chief of Paqtnkek Mi'kmaw Nation. I am here on behalf of the Assembly of Nova Scotia Mi'kmaq Chiefs, which exists as an institution of governance for all 13 Mi'kmaw bands in Nova Scotia. On behalf of the assembly, I have also held the justice portfolio, during which time I have worked on a number of child welfare-related issues.

The Mi'kmaw traditional territory is called Mi'kma'ki, which encapsulates roughly five of the Atlantic provinces. We have a long, rich history. We have a creation story and numerous legends. Our traditional governance structure is the Sante’ Mawio’mi, the Mi’kmaq Grand Council. As Mi'kmaq, we have outstanding and existing aboriginal and treaty rights. They have been recognized by the highest courts in this country. Throughout our long, rich history, which stems from the treaty periods to scalping proclamations to pre- and post-Confederation legislation, including the Indian Act, through to residential schools and to subsequent policies of the federal government through such things as centralization, we are still here. We still thrive within Mi'kma'ki, at times despite the failed good intentions of the federal government.

Before the arrival of Europeans, we existed as independent nations governed by our own customs, values and traditions. We operated through kisult or Niskam, our Creator, who provided us with how to live through original instructions as human beings. We have an inherent right to self-government. This is independent of any legislative enactment. This is also embedded within the constitutional framework of this country through section 35.

With respect to Bill C-92, the assembly supports the provisions within this bill that recognize the inherent right to self-government. However, we'd like to underscore some fundamental changes that are needed. These are most predominantly funding and transition-related issues, which my counterparts will get into further.

I'll share a bit about our experience within Nova Scotia. Back in 2014, the Province of Nova Scotia reviewed their Children and Family Services Act. There was a major overhaul of that act. We played an important role within that process with the provincial government. This led to roughly 25 amendments to the Children and Family Services Act that dealt with Mi'kmaw people in Nova Scotia. The act previously had no mention of Mi'kmaw people. We developed an interim approach and a long-term approach. The interim approach was to gain some recognition through the provincial act. The long-term approach was for a Mi'kmaw law over Mi'kmaw children, certainly consistent with this bill.

Through those amendments that we achieved in 2017, we have had positive outcomes. For example, there are fewer foster care placements and more within the area of customary care. We have recognized family group conferencing, which exists as a preventative measure through Mi'kmaw traditions, allowing us to take into account an existing situation before it gets to the point of no return. Saying this, however, we are cognizant of the fact that we certainly don't want this federal bill to interfere with the substantive gains we have made provincially.

With respect to my experience, I would just make a note about connection and the role of community. As leaders and chiefs, we often get tired of watching children, families and communities get torn apart by a system that doesn't work.

Certainly in my role, we recognize the need to have basic building blocks, including identity, culture, language and traditions, related to the spirit and well-being of our peoples and of nations. There's a need for connecting and belonging, which is a basic right for community members to live in health and in safe environments. We recognize that the solutions to the problems we have with child welfare must come from within. To resolve these issues they must come from our respective communities.

A certain environment has to exist, because we all know too well that at times provincial laws and policies don't reflect the realities within our communities. We recognize that self-government can provide a mechanism that offers traditional and practical ways to care for children and families, and certainly there are a number of examples in that regard.

As a quick note on funding and transition, we recognize that legislation in and of itself does not really create the change that is needed. There have to be additional approaches involving education, capacity building, governance, infrastructure, stable funding and building relationships within an overall strategic justice initiative.

With that, I'd like to conclude and offer comments from my colleagues here.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

All right.

You have seven minutes, Ms. Cox. Go ahead.

[Jennifer Cox, Barrister and Solicitor and Project Lead, Enhanced Child Family Initiative, Kwilmu'kw Maw-klusuaqn]

My name is Jennifer Cox. I am a Mi'kmaw lawyer. I've been working in the province of Nova Scotia, although I worked for a number of years in the province of Saskatchewan as well. It will be 24 years this June that I first started practising law.

I've done a lot of work in the area of child welfare. In fact, Mr. Morris and I would be on the opposite side of the child welfare file. Part of what we want to share with you today is not only our comments on Bill C-92 but also our experiences in that relationship building. You wouldn't normally see lawyers who are on the opposite side of a case working together, but we have formed those relationships and have been able to make some of the changes we now see in Nova Scotia based on those relationships.

My submissions to the committee are with respect to the substantive provisions of Bill C-92. We did prepare a brief and submit it. Unfortunately, it hasn't been translated, so you don't have it before you.

As the chief indicated, the instructions I have are that we are supportive of Bill C-92, but there are some suggestions for change. Based on our experience in Nova Scotia with the legislative changes there, we're not unaware of the fact that these things happen very quickly, with very little opportunity to participate in the process. To some degree, I think, the committee needs to take that into consideration when you're looking at the motivations behind the government bringing this forward in such a short window. It's definitely difficult for us to participate with not a lot of time, but at the same time, it is not atypical of government to bring it forward and try to push it through.

In Nova Scotia, when we dealt with the changes in the legislation, it was very quick. We had a couple of months. We did the best we could. We came forward with some suggestions. Some of those suggestions led to some really positive changes, which my friend Mr. Morris will talk about in terms of the level of kids in care, with things going down and much more positive outcomes for families.

It's because of the relationships. Because we have one agency in the province, we have a good relationship with the Province of Nova Scotia. We have the Assembly of Nova Scotia Mi'kmaq Chiefs and obviously a good champion with Chief Prosper. There are a lot of pieces to the success story we have in Nova Scotia. It isn't just based on legislation.

I'll get into the substantive provisions of the legislation that we see needing to be looked at. Too, I think it's important for the committee to note that we don't see this as co-drafted. Bill C-92 was not something on which we had anything other than one opportunity. There was an engagement session in October of 2018, but we don't see this as co-drafting. As I already indicated, I also do not see legislation as being the only agent of change. There will have to be the relationships, the funding, the infrastructure, the transition and all of these other things.

We're asking that funding provisions be added to the preamble. I think the word “need” needs to be substituted for “call”. Again, all of these substantive provisions will be provided to you so that you can look at the written text. We're asking that the provisions from the preamble be brought into clause 18 as well. Those are the jurisdiction provisions. We're not asking for changes in wording, other than inserting the word “need”; we're using the preamble language that the Government of Canada has already put forward.

We're asking that paragraph 20(2)(c) also include provisions with respect to funding principles—not formulas, just principles. If those funding principles are not included in the legislation, it makes it very difficult for us to negotiate those coordination agreements.

We're asking that in subclause 18(1), the United Nations declaration on indigenous peoples also be included as a recognition tool. So this subclause would mention not only section 35 of the Constitution Act but also the United Nations Declaration on the Rights of Indigenous Peoples.

We're asking that Jordan’s principle be specifically mentioned in paragraph 9(3)(e).

We have some suggestions on the best interests of the child in subclause 10(3) that will allow some space for the inherent indigenous legal and community standards. That's a fairly important piece of the bill. I think it's really important to give indigenous communities some space to allow for their own community standards and traditions to be interpreted while their own legislation is being drafted.

A lot of these provisions won't be applied if they have their own legislation, but in the meantime, there's going to be a transition period and there should be some opportunity to allow for those inherent legal and community standards to come into play.

Paragraph 10(3)(g) we have concerns about. I think, quite frankly, it's in the wrong place. Normally in provincial legislation you see family violence as a reason to remove children, not in a “best interests” section. We are recommending that it be deleted because it may very well confuse people.

The definition of “care provider” unfortunately appears to include allowing foster parents to have standing in a legal proceeding. That's not normally what we see. In fact, provinces and territories in Canada, except Manitoba, do not permit foster parents to have standing in a legal proceeding. There are lots of problems and delays caused by that. Those are our concerns with the definition, and we have provided you with specific wording to amend that.

[A voice]

Which section is that?

[Jennifer Cox]

It's the definition of “care provider”, so it's in the definition section. We've proposed specific suggestions to change that.

On subclause 31(1), the five-year review provision, we're asking that you consider making that three years instead because there are a number of different things that have to be looked at here.

We've given you some suggestions with respect to the notice provisions, clause 12. We have a band notice in our form that has been co-developed by the Province of Nova Scotia. We've provided you copies of both the notice and the response that the bands can complete. We think those might be helpful in terms of clause 12 and what we can do when we're given an opportunity to participate. The Province of Nova Scotia and the family courts in Nova Scotia did give us an opportunity to participate in that type of process, and that's the work we are able to do when we work together.

Those are my comments.

[The Chair, Liberal, MaryAnn Mihychuk]

Mr. Paul Morris, go ahead for seven minutes.

[Paul Morris, Lead Counsel, Mi'kmaw Family and Children's Services of Nova Scotia]

Thank you, Chair, and thank you to the committee for inviting me at the last minute and allowing me to join the panel.

I have practised in the area of child protection for 20 years. I've been in-house legal counsel with Mi'kmaw Family for the last three and a half years. It was my primary client prior to going in-house.

I guess one of the reasons why the chief asked me to come along today and join the panel is to talk a bit about some of the changes that have been made, because in Nova Scotia there are the amendments to the legislation that have happened, which are significant and important, but they just happened on March 1, 2017. This is at the beginning stages in terms of what that means for change, but certainly, in the 20 years that I have been involved with litigating child protection matters, I've seen a change within the agency in Nova Scotia.

For those who aren't aware, when I refer to “the agency”, Nova Scotia has an organization called the Mi'kmaw Family and Children's Services, through a tripartite agreement of the province, the federal government and the 13 chiefs. They provide all family and children's services for the Mi'kmaw who reside within the geographical communities within Nova Scotia. It is a situation in Nova Scotia where there is an existing agency that provides child protection; however, they currently are providing that service under a provincial mandate. We don't have a separate policy manual. We operate under the Province of Nova Scotia's child protection manual.

Initially, certainly when I started doing this, this was something that was fairly rigid in terms of how it was applied and often would result in more significant interventions taking place, resulting in more taking-into-cares occurring. Much of this had to do with looking at extended family placements and the policies that were in place in terms of having checks done in advance before children could be placed with families, and in terms of having situations where, even if there had been no issues over the last five years with children living in that home, there was a criminal conviction from seven years ago and that person couldn't be considered an extended family placement for children who couldn't remain with other family.

One of the things we have seen without the legislation was that the province worked co-operatively with our agency to do representations to INAC or the organization that preceded INAC to obtain funding, because our agency was underfunded. The number of case files per worker was well beyond the provincial average. Our workforce was substantially increased, and this resulted in an ability for the agency to begin, I think, to provide less intrusive and more and better service to the families they served. It allowed workers the opportunity to take the time to locate and explore family placements before taking children into care. When I say “time”, often that's just three or four hours, or an afternoon. That's taking place now, instead of intervention happening quickly, children being placed in care and then having a long, laborious process to clear placements to allow the children to go home.

The practices and policies in place changed how child protection services were delivered, how children and family services were delivered within the communities. When I started doing this in the late 1990s or early 2000s, the majority of files that I was going to court on were temporary care and custody files. Children had been taken into care and the agency would be providing services to address those issues before the children could go home. If it was going to be for a longer period of time, it would be weeks to months before family placements could be approved. Once the workforce was increased, the funding was increased and the level of service was increased, the agency was able to focus on how we could better meet the needs of the families and children we served, find a way to keep children with their families and their communities, and try to reduce the number of removals.

I did tally the numbers. I don't have the numbers from when I started out, because I was one of the junior lawyers working on the files that the lawyer I was working with would assign.

When I tallied the numbers last year, 49% of our files were supervision orders, which means the children are still with one of the parents or both of the parents. Twenty-six per cent were customary care supervisory orders, which means the children were not taken into care but placed with extended family, someone else within the family of the children. Thirteen per cent of kids who were taken into care were in kinship placements. Again, typically, this would have surrounded a funding issue of some sort, where we would have extended family who couldn't afford to care for the children under a supervisory order because there was no funding associated with supervisory orders; you only receive funding if the kids are taken into care. Then, last year we had 12% who were in true, temporary care, in foster homes without family.

It was almost a complete reversal from 20 years prior, when I started doing this, at which time 75% to 85% of my files were temporary care and custody. Now, 75% are family placements with half of the temporary care and custody placements being with family.

We do see this as an opportunity with the rights recognition. The funding piece is going to be key, because it's the provision of services to the families that will effect the real change for families. That can be done through policy as well as legislation.

I think I'm at my seven minutes, so I'll wrap it up there.

I think the main reason I was asked to join the group today was to provide some of that information.

Thank you very much.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

I'd like to give special recognition to Duane Smith, chair and chief executive officer of Inuvialuit Regional Corporation.

You have taken a position to come a little bit early, and we've put you with this panel. We really appreciate that.

We offer you the full 10 minutes, if you would like, to present.

[Duane Smith, Chair and Chief Executive Officer, Inuvialuit Regional Corporation]

Thank you, Madam Chair and committee. I apologize to the others here for crashing their presentation, but I thank you for the opportunity first of all.

I will try to be as brief as I can. Some of my opening comments I sent to you a few weeks ago. I didn't realize it was the same committee that I would be speaking to on different matters.

As the chair has noted, my name is Duane Smith. My English name anyway is Duane Smith. I am the chair and CEO of Inuvialuit Regional Corporation, which represents the very far northwest of Canada bordering Alaska. The area I represent is just under one million square kilometres, two-thirds of that being a water body.

I will cut to the chase on some matters so I can spend some time on some points. As you're aware already, we signed an agreement—when I say we, I mean Canada and us—for us to implement the arrangements we had under the agreement together, which is called the Inuvialuit Final Agreement, back in 1984. It's the second-oldest modern-day treaty we have within Canada.

As I've said and I will reiterate again, the IFA belongs not only to the Inuvialuit but to Canada as well. That's partly why I'm pleased to be sitting before you today, because we have to work together with Canada on issues such as the one I'm here to talk about, on how we can improve and implement our obligations under that treaty.

The ISR itself has six communities. I will skip over parts of it. I do apologize to the interpreters since I'm cutting and pasting because I have been injected into this section here. We do have roughly 6,300 or 6,400 Inuvialuit scattered across the country, mostly within our region.

Before I get into the part about supporting Inuvialuit children, I will mention that I was sitting in the back listening to the Mi'kmaw presentation. I can't state enough my support for the comments and the recommendations they have made to date, because I've heard similar recommendations from other parties including other Inuit organizations.

I would like to turn to some of the things we have been doing to try to support our children, youth and families in the ISR, as it's referred to, or the Inuvialuit Settlement Region. One of the three principal objectives of the IFA is to preserve Inuvialuit cultural identity and values within a changing northern society. Healthy families and communities in which children and youth feel included and supported are essential to the preservation of cultural identity and values.

As most of you may know, since 2014 the Auditor General of Canada has identified serious deficiencies in the delivery of child and family services in the Northwest Territories and in the structures intended to support this delivery. These findings disproportionately impact indigenous children in the territory as over 90% of the children in care are indigenous. At that time, the Auditor General also said that this government could not even identify where some of these children were located.

Then last year, in 2018, the Auditor General did another report. The basic findings were that it was actually getting worse. I don't know how it could possibly get too much worse than having the government not even able to identify where some of these kids were being kept in custody, but now it's getting worse.

IRC has been doing what we can to manage these deficiencies so that our kids do not fall through the cracks.

One example of that is that we provide what we call student and family support workers. The SFSWs were identified as a need in order for schools to connect with families and communities, and I made it a priority when I was first elected in 2016. We use the funds we receive to maintain one staff person for each community. These individuals work out of the schools and provide assistance to students and families of students to ensure that Inuvialuit kids are getting to school and are supported through their school years.

In another example, since I became chair, we have been trying to work with territorial and provincial governments to ensure that children who become government wards or who are adopted into non-Inuvialuit families get a chance to register and ultimately enrol with us. In some cases, Inuvialuit children are removed from their families and sent to places from where it is very difficult and expensive to return to the ISR.

Once we find the child in the system, we try to reach out and provide materials about our three Inuvialuktun dialects, the history of the region and traditional activities. When our records show that a child is about to turn 18, we ensure they have the forms they need to apply to the Inuvialuit Trust. Our staff remains on hand to offer any guardian who wants to know more about the IRC, the ISR and our Inuvialuit communities.

I'll digress again for a moment here just so you understand the government system where a child who turns 18 is put into a hotel for a period of time and then left on their own after that to look after themselves without being given the basic skills to do so. We do have a problem here.

Before Minister Philpott's emergency meeting and the attention that the development of Bill C-92 brought to the issues facing indigenous children, youth and families, it was very difficult to get traction with some provincial and territorial governments. While individual staff members were well meaning, the framework for involving Inuvialuit organizations and sharing information was weak.

Bill C-92 is not perfect, but it is an important step. In our case, we hope that it will provide guidance to the Government of the Northwest Territories as it sorts through the many increasing deficiencies that the Auditor General has identified.

In terms of comments on the bill, I'll turn now to a couple of key elements.

As noted earlier, the transmission of our culture and language, as well as knowledge of and appreciation for our region, are key to preserving Inuvialuit cultural identity and values within a changing northern society. The principles under clause 9 of the bill give appropriate weight to these things. In particular, we see paragraph 9(3)(d), which acknowledges a role for indigenous organizations, as essential.

Clause 12 of the bill, which requires the service provider to provide notice of a measure to the child's parent and the care provider, as well as to the indigenous governing body that acts on behalf of the indigenous group, will greatly benefit the work that we are trying to do on behalf of Inuvialuit children wherever they are.

With this clause, I would note that the implementing regulations are going to be important. My staff tells me that an obstacle in getting information to indigenous organizations is the intake procedures of the responsible jurisdiction. In some provinces, Inuit did not even have a check box that the social worker could mark. All kids are simply “first nation”, so we have a branding problem here. The categorization of indigenous children within the various databases will have to be done on a more granular basis. This is the only way that social workers will be able to connect the child with the relevant indigenous organization so that notice can be provided.

Clause 16 of the bill addresses the priorities considered in the placement of children. Because of our remote location within Canada and the difficulty children have in visiting their home community once removed, Inuvialuit would like to see some priority placed on geographic proximity of the placements. If this is not possible, we would like to see some provision for maintaining the connection between the child and the home community or region.

As a final comment, as we are working through some challenges in our self-government negotiations, we note the importance of the coordination agreement provisions under clause 20 of the bill. These provisions would allow the IRC to request a coordination agreement with government in relation to the exercise of the legislative authority on, first, the provision of emergency services to ensure the safety, security and well-being of indigenous children; second, support measures to enable indigenous children to exercise their rights effectively; third, fiscal arrangements related to the effective exercise of the legislative authority; and, last, any other coordination measure related to the effective exercise of the legislative authority.

The ability to exercise our traditional governance over child and family services, as it is called in this modern age, is key to ensuring our children have a sense of identity and belonging.

In conclusion, we look forward to working with the federal government on the development of the regulations that will help implement this act when it comes into force.

Thanks for your attention and interest. I am happy to take questions.

Nakurmiik.

[The Chair, Liberal, MaryAnn Mihychuk]

We will now move on to the question period, starting with MP Dan Vandal.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Thank you very much.

Thank you, all of you, for your fine presentations, and welcome to Ottawa.

My first question will be directed right to Duane Smith because he's the freshest in my mind.

Generally, I think you said that it's not a perfect bill, but you're supportive of the bill. My question to you is who currently administers child welfare in your territory. Is it the federal government?

[Duane Smith]

No. We're a territory, so it's the Government of the Northwest Territories.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Okay. You've made your point quite clearly. For some reason, I didn't get that. I'm sure you mentioned it, but I didn't hear it.

Chief Prosper, I understand you were on the AFN's legislative working group that worked on this legislation. Is that correct, and if it is, can you tell me what that was like?

[Chief Paul J. Prosper]

Yes, I was a member appointed by the assembly to sit on the legislative working group. As I understand it, it's a group of aboriginal representatives, first nation representatives from across the country. We had some meetings to collectively discuss the bill.

I'd like to echo the comments by Ms. Cox, in the sense that it wasn't a joint exercise in terms of co-drafting. In terms of the input with respect to the bill, there was a meeting at which issues were brought forward constructively to various government representatives, and that was pretty well it from my understanding.

I think Ms. Cox, who is a member of that same group, might be able to provide further details.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Ms. Cox, you were in the group as well?

[Jennifer Cox]

I was, yes.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Can you tell us a bit more about the process?

[Jennifer Cox]

It was, basically, the best we could do in the short timelines we had. We were dealing with everybody, bringing everybody together, and sharing information. Everybody put forward their positions on what they felt the drafting instructions should be for Bill C-92, and once the consultation bill was provided, we were given approximately a week. It was given to us before it was tabled, and we had approximately a week to look at it.

It was the best we could do. We had a very short period of time. It was, I suppose, fairly effective given the short amount of time we had.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

I believe all three of you—Ms. Cox, Chief Prosper and Paul Morris—have identified funding as an issue. The rationale, what we're hearing from the department, is that we are trying to essentially redesign the child welfare system and that to identify funding right now would perhaps be premature and that, rather, we should see what sorts of models come out.

My question, I guess, is to all of you. When you say “funding”, are you talking about precise dollar figures or are you saying that funding principles should be embedded in the bill, if that's your suggestion? I'll go to the chief first.

[Chief Paul J. Prosper]

My understanding is yes, it's not a definitive amount but more or less funding principles to help guide, later, the provision of adequate services and programming.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Paul, do you want to add something?

[Paul Morris]

No, I agree with the chief's comments on that. I don't think putting a number in the legislation would be a good idea. I think that formulas are somewhat concerning as well. I think the key piece is ensuring that there is that clear obligation that funding will be provided so that we don't end up with a provision that's providing for a service that people can't provide.

[Jennifer Cox]

It's unfortunate that you don't have the brief. We've actually made suggestions as to the wording. We're just pulling the wording from the preamble on the funding provisions into the actual body of the bill. It is just the principles primarily from the Canadian human rights decision of sustainable equality. It's just the principles. We're not looking for anything specific, but because there's nothing in the body of the bill that speaks specifically to the funding itself, this is what our concern is.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Okay.

All three of you have also mentioned the new legislation brought in by the province. It sounds like it's been a positive initiative. Could you talk about the role of the province in this legislation and how you see that unfolding? Do you have any thoughts on that?

[Chief Paul J. Prosper]

As mentioned earlier within my opening comments, I believe we have a good working relationship with the province, which helped facilitate the process we went through with the Children and Family Services Act. We had discussions with the province prior to coming to this committee. Those relationships still continue. Basically what we are quite mindful of is some of the gains we made provincially through provincial legislation. There are some areas within this bill that will impact that. We're prepared to outline those issues, and we have outlined them, but that's one of the concerns we wanted to share.