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.
