Indigenous and Northern Affairs Committee on May 2nd, 2019

[Prof. Dwight Newman]

One can never avoid challenges entirely, but there are some things that strike me as possible amendments if one is working the bill as is, although there have obviously been other critiques of it that could call for other reshaping.

Thinking of it from as is, I would restrict clause 7 so that the bill is purporting to bind only the federal Crown and isn't trying to say something about the provincial Crowns, because that's not a matter for the federal government to decide. That would be an amendment to clause 7.

Clauses 10 through 17 should be amended in some way to operate subject to agreement with individual provinces, which I hope they would offer, but otherwise, to the extent that they're applying off reserve, they're running into provincial jurisdiction. Therefore, an amendment could be crafted to require provincial agreement to the off-reserve application.

Maybe there could be something of the same sort in respect of subclause 22(3), because again, once it's applying off reserve, there are some difficulties there.

I'll stop.

[The Chair, Liberal, MaryAnn Mihychuk]

I know you're a constitutional lawyer. It's difficult to stop.

[Prof. Dwight Newman]

True.

[The Chair, Liberal, MaryAnn Mihychuk]

There are a lot of angles. I don't mean to make light of that.

Thank you, Cathy. We're moving the questions to MP Rachel Blaney.

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

Thank you all for being here today. I think one of the major discussions underlying all of this is intent versus impact, and I think it's so important that we bring that up again and again.

Cindy Blackstock was here just earlier this week and she spoke about having the funding principles of the legislation actually put into the legislation. She suggested that they be based on the Canadian Human Rights Tribunal, which we all know is still in contention with this government.

I'm going to talk to Hadley and Naiomi first. You spoke about funding. Can you speak about that and what you think needs to be in the legislation to make sure there are at least principles of funding?

[Prof. Naiomi Metallic]

Absolutely. As I mentioned, I believe that Dr. Blackstock had a blackline version that she was circulating with amendments, and I do support those—

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

Yes.

[The Chair, Liberal, MaryAnn Mihychuk]

As a clarification, Cindy Blackstock's blackline version is eight documents and it's in translation. It will come to committee members when it is done.

[Prof. Naiomi Metallic]

I've seen things in that draft that I agree with. It confirms that in the preamble there's an actual commitment, not just a recognition. It's funny because your language bill actually has a commitment to equitable, sustainable funding, and I think there should be the same commitment here.

Then I believe in clause 20, per your notes, basically it is drafted such that it does still permit fiscal discussions to happen in the context of these co-operative or collaborative agreements. However, the buck stops.

There's a provision that says, notwithstanding anything else in the act, and irrespective of whether an indigenous governing body has entered into a coordination agreement, the minister at all times shall fund the costs associated with child welfare services. It sets out various areas. There's the actual delivery of services, becoming self-governing—so developing to have that capacity—and then the actual self-governing.

I would agree that those are fundamental to this actually being at all effective.

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

One of the things that concerns me is that this is a framework piece of legislation and all of you at the table here spoke about certain issues of language and how it's used, things like the best interests of the child and the concern that the legislation is hollow without substantial support and funding.

I think that's important because sometimes I hear people say, “Don't worry about that; indigenous communities will be making the legislation,” but this is the framework legislation around it. Why is it so important that this be worded appropriately?

[Prof. Naiomi Metallic]

It's because it needs to be set out in law. When something is not set out in law, there is uncertainty. In the whole system, the way child welfare has worked since the mid-sixties, nothing is set out in law. There's nothing in the Indian Act about it. It leads to all kinds of uncertainty. It allows for this hot potato issue.

Framework legislation has to set out the bare minimum of content in terms of indigenous peoples' rights but also governments' obligations. If you don't set them out in legislation, it just leads to fighting and uncertainty and litigation, and in this particular context, indigenous children bearing the brunt of it.

That is why it is so key to get those really firm—funding, accountability, jurisdiction. It's so key to have those set out in law because that governs entirely how people deal with each other.

[Prof. Hadley Friedland]

What I see is that courts will be called to interpret this and they'll be looking at what came before, so having that language clear so they can see they're supposed to be doing something different here is going to be crucial when there's disagreement.

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

Is there anything you would like to add, Melanie?

[Melanie Omeniho]

I support what they've already presented.

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

The other thing that you talked about was accountability, and I just want to get it really clear on the record what needs to be in this legislation so that we make sure accountability is key.

I can tell you I am about 20 children's cultural care plan. I don't have time in my life to be the cultural care plan for 20 children. When I look at how indigenous children are treated when they come into care, and they bring me and my husband in and they say, “You guys are now responsible for that,” without any sort of support, I just know the children are paying. They're paying and they're paying again.

What do we need in terms of accountability so that we can call everybody to account and stop seeing that hot potato of passing children around?

[Prof. Naiomi Metallic]

I would have three. A recognition of the federal obligation to fund in this area is one.

Two—and I sort of relayed it—is the level specified in the First Nations Child and Family Caring Society decision: substantive equality, with services and funding that meet their needs in circumstances that are consistent with the cultural, geographical and historical circumstance of indigenous people.

My third one is that there needs to be a dispute resolution mechanism that is effective—meaning binding decisions.

That's accountability to me.

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

Okay, good.

The other thing that I heard was clarity for front-line workers so that they know how to implement what needs to happen.

How can we make sure the bill is strong enough so that front-line workers are seeing that being implemented? What needs to be tied to that in terms of funding and support for training and so forth?

[Prof. Hadley Friedland]

I think that drawing on the American experience can be helpful here. Certainly having support for interpreting and understanding this, for workers, for indigenous peoples as well, will be very important.

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

This was brought up again and again: “best interests of the child”.

How do we define that? What is the gap and what do we need to put in there to make sure it's defined well.

[Melanie Omeniho]

If you want to talk about the best interests of the child, I think you need to work with the indigenous communities to help identify what that is in relation to who they are. Quite often the best interests of the child have been based on a system that wasn't our system. What might have been important in a European process might not be the most culturally relevant, important thing to these children.

Having healthy, happy children is what we all want ideally, but in what system we are assessing some of that really needs to be considered. I think that working with indigenous governments and our indigenous communities is going to be the best place to put that forward, so that it isn't a system that's just fluffy words and doesn't have any impact.

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

I agree with that, but how do we make sure that this framework has strong enough language to support the language that every indigenous group puts together for their own legislation? Is there an answer?

[The Chair, Liberal, MaryAnn Mihychuk]

Please be very quick.

[Prof. Hadley Friedland]

Okay.

In the blackline version, there's a suggestion to allow for those laws. Also I think there's the onus on whose needing to address it, and having impermissible reasoning will stop some of the binding precedent.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

The questioning now moves to MP Will Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you, Chair.

Thank you to our witnesses both here and on video.

I want to offer our witnesses, Ms. Metallic and Ms. Friedland, the opportunity to respond on the division of powers question to Professor Newman.

I'm interested in this topic. I know that there's been a charter statement tabled in the House, but that doesn't go to division of powers. I think it would be valuable to have a further discussion.

My initial thought would be that I don't think it is unprecedented that federal legislation references the provinces, so I don't think that is in and of itself untoward. I can also appreciate that we're in a unique circumstance where we're changing the status quo and we're enabling, through the framework legislation, an approach to child welfare that is going to empower those who are the most at risk, have the most to lose and the most to gain out of this set of circumstances.

I pass it over to you, Ms. Metallic and Ms. Friedland.