I'll pick up on talking about the issue of best interests of the child in the national standards, and I'll also talk about jurisdiction and some suggestions for strengthening this bill so its intent is met.
Best interests of the child, we firmly believe that without some strong mandatory language to address bias and to clearly overtake binding precedent, this bill could easily maintain the status quo. Nobody is saying there's anything wrong with “best interests of the child”, the idea that the child should be at the centre and the child's needs are the most important. I think everybody's in agreement with that. It's how it's been interpreted and how it's been applied by the courts that has been detrimental to indigenous children.
There are two legal issues. The first legal issue for “best interests of the child” leading to overrepresentation is that almost all provincial statutes have mandatory timelines, whereby after a certain amount of time in care, all of a child's legal relationships with their family and extended family will be severed permanently, based on time, regardless of what's in their best interests.
The second is a 1983 Supreme Court case called Racine v. Woods that is still good law. It's still binding precedent, as in, lower courts must apply it to a case before them. This links a concept of best interests of the child to a troublesome notion that the importance of inherited cultural background fades with time, while the importance of bonding increases.
This was from 36 years ago. Attachment theory has vastly improved since experts weighed in. We have the case of Brown in Canada, the sixties scoop, which points out with experts across the country that the absence of being connected to that cultural heritage caused great harm. We also have a very different landscape in family law. We have children living in joint custody situations, we have contact orders, we have a lot more tools and we know that children grow up in a variety of family structures and do very well as adults. We've moved past this but the law with Racine v. Woods has not.
I have some suggestions for adding or amending to address this issue.
Consider an impermissible reasoning clause. When determining the best interests of the child, it would be impermissible to say the length of an indigenous child's time out of parental care or in the care of a specific caregiver is sufficient reason in itself to say it's in the best interests of the child to sever relationships or grant permanency.
Consider an active efforts principle, as in the American act that deals with indigenous child welfare, which encourages preventative care and requires decision-makers to say what steps have been taken in the best interests of the child before removal.
Consider removing “best interests of the child” where it is unnecessary. In section 23, subjecting indigenous laws to the best interests of the child, be very specific. If that's about immediate physical safety, say immediate physical safety as opposed to best interests. Keep in mind that the courts will retain their parens patriae jurisdiction. Courts can always weigh in on laws that they think are not in the best interests of the child.
Turning quickly to jurisdiction, it is a huge positive step forward to acknowledge the inherent jurisdiction in this area. We are recommending certainty and clarity: clarity in defining federal and provincial jurisdiction, as my colleague said, and clarity in conflicts. Paramountcy rules need to be clear enough that a front-line social worker dealing with a crisis understands what the law requires of them. There also needs to be certainty of access to indigenous laws, addressing whether this jurisdiction is reserved to geographical areas like on reserve or if it follows indigenous citizens where they go, where indigenous children go, including off-reserve first nations children, Métis children, Inuit children, non-status children, making sure they also have access to indigenous laws.
Finally, it comes back to my colleague's point, certainty of funding, ensuring that this is not a hollow promise, because without the resources to develop, implement and deliver on indigenous laws, the jurisdiction is going to remain hollow.