Indigenous and Northern Affairs Committee on May 9th, 2019

[National Chief Perry Bellegarde]

It's a good question, again, and I know we've met with your leader as well many times and we've discussed these. I would say there are many important bills, but we always focused on C-91, languages; C-92, child welfare; and then C-262, the UN declaration.

I said that I'd be a happy national chief if they all pass by the end of June. I know the issue is free, prior and informed consent. People think, “Is it a veto?” and “Did you hear from Paul Joffe and other experts?”

I say that it's not a veto, but you have to respect aboriginal rights, inherent rights and treaty rights, and involve the rights and title holders sooner than later in any initiative. With free, prior and informed consent, when people.... You mentioned that the Assembly of Manitoba Chiefs are going to say, “Don't pass this”. That is a region and that's a regional chief. Grand Chief Arlen will be here to say that.

You know the numbers in Canada. There are 203 chiefs in British Columbia. There are 47 in Alberta. There are 74 in Saskatchewan. There are 66 in Manitoba. There are 134-plus in Ontario. There are 47 in la belle province of Quebec. There are 13 in Nova Scotia, 15 in New Brunswick, two in P.E.I., two in Newfoundland, 14 in the Yukon and 28 in the Northwest Territories.

Do you think there's unanimity?

There you go, but we have 400-plus chiefs supporting this. We have numerous resolutions to support this. I would encourage people to look at starting to fix this, because I'm going to disagree with people in a respectful way that the status quo is not acceptable, and it should not be acceptable to have 40,000 children in foster care. That's where my head goes at all times.

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

As you know, we support this bill. We think it's important and we want to move it forward, but I do believe that there would be complications relating to section 19 and relating to individuals.

I'll turn it over to my colleague. He probably has a few minutes.

[The Chair, Liberal, MaryAnn Mihychuk]

He has two.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you, Madam Chair.

Thank you to our guests for being here.

Grand Chief, you mentioned several times the timing of this bill and the fact of getting it going forward.

I was at your gathering on December 4 to 6, where you made an implored plea, particularly around a child, and it seemed to have worked because as soon as we got back here in February, this bill was introduced.

What's interesting to me is the fact that it took so long. We had three years. Now, one of two things could have happened. There could have been extensive consultations to bring a consensus around this, and we wouldn't have had pretty much everyone show up here with a concern with the bill. Otherwise, it means this has just been dumped at the last minute as a political tool, with the election looming.

It just seems to me that the timing of this particular bill is interesting, and perhaps I am a little cynical about it. I see the connection between your December 4 gathering here in Ottawa and the plea for this, and then the bill being introduced. The consultations happened prior to this. What was preventing this bill from being introduced two years ago?

[The Chair, Liberal, MaryAnn Mihychuk]

Just a short answer, please.

[National Chief Perry Bellegarde]

The catalyst was when former minister Jane Philpott called that emergency meeting. That was the catalyst that shed a light on this, not only nationally in Canada but internationally, and showed that something had to be done. That was the push to get something started. That's when committees were brought together, people were brought together and experts were brought together involving the national advisory committee. We embarked on that process.

It wasn't as robust as, for example, Bill C-91 on languages, but it was something. Because we wanted to meet this deadline as soon as possible, that's what happened, and that was the reality.

I don't want to be cynical about this because it's about children. We lift up the Canadian Human Rights Tribunal and the work we've done to fix the on-reserve discrimination there with more resources to meet the children's needs. This is off reserve now in another jurisdiction, so there had to be something there, and that's what this speaks to. The catalyst, however, was back in January. We're working as diligently and as quickly as we can to get this done.

[The Chair, Liberal, MaryAnn Mihychuk]

Very good.

The questioning now moves to Rachel Blaney.

If we choose to take 10 minutes for committee business, you have approximately five minutes for your questioning.

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

Thank you for that very interesting statement.

I am going to start with Mary Ellen Turpel-Lafond.

Thank you to both of you for being here today.

One of the things you said really resonated with me. You said that this is constitutionally overdue. What we've heard from other witnesses is that often indigenous children, both on and off reserve, are like a hot potato that people are passing around because nobody wants to take responsibility, and that this bill actually allows for more jurisdiction and responsibility to be placed on the federal government.

I'm just wondering, with all of those comments I've made, if you could just talk about why this is constitutionally overdue and how this would address the jurisdiction so that our children aren't passed around like hot potatoes. Is there anything missing in this legislation that could prevent that?

[Prof. Mary Ellen Turpel-Lafond]

Yes. I think the question you're asking is a very important one in terms of whether this is enough to address that issue and to bring the proper focus here.

I would concur with the national chief and with others who have presented. I think that it is a shift. It's a big shift, and I think it's very important in Canada that we have this shift, but I also think it's important that we don't do a shift so hard that provinces and others won't work together, and we can't bring provinces and first nations together.

There will be first nations that do not want to work with the province. I have that experience myself with some clients and others in my own first nations' background. Sometimes people don't want to work with the province, but practically, if you want to get your children out of the child welfare system, you have to work with the province.

This is enough of a shift. I would be worried that if it were too harsh, it could be too directive at provinces. I like clause 20 on coordinating agreements. I also respect the fact that no one has to work with a province if they don't want to. I think this is your opportunity to put the children at the centre. I agree with you very much on the substantive equality.

I would really draw your attention to something that is just so powerful in this bill, and that's in paragraph 9(2)(d), which is about services having to be provided to indigenous children in a manner that does not contribute to the assimilation of the people, group or child, or the destruction of their culture. It doesn't matter who is taking care of the children. Services have to respect and protect culture. That provision alone is so helpful to have as an overarching lens. These are critical steps.

Is it everything? I think it's a big shift, and I think we on the ground will work with that very strongly to support first nations' children in their identities, their cultures and their communities. I think we have to remember that there are chiefs and collective rights, but there are also children's rights. We also have to stay focused on.... The children have to have their rights recognized, and these sorts of things are very critical for the rights of children.

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

Another issue that's come up from other witnesses, as well, is around the best interests of the child.

First of all, I just want to say, especially to Grand Chief Bellegarde, that I appreciate your talking about having the funding aspect right in the legislation. It is something I've asked everyone, but I felt that you covered that.

I want to take this opportunity to talk about the definition of “best interests of the child”. I'm concerned that if there is a colonial aspect to how it's defined, it could be problematic as we move forward. I open that up to both of you, with a minute and a half left.

[Prof. Mary Ellen Turpel-Lafond]

I'll take a quick shot at it.

Article 3 of the UN Convention on the Rights of the Child says best interests are paramount. There is a general comment on indigenous children.

The challenge with best interests in Canada is that it's been used as a weapon against indigenous families, with all those terrible attitudes about indigenous families, just as residential schools were used. That's why the Truth and Reconciliation Commission said, in its legacy, do this work that's before you today. “Best interests of the child” is a very challenging thing, but there are new concepts, a new, I would call, interpretive lens brought to it in this bill, which is very helpful.

There is one issue, and I concur with what the Assembly of First Nations has presented and with what the B.C. chiefs presented earlier. I think a small clarification on best interests is that when there are indigenous laws in place, the best interests harmonize with that, too. We have to be very careful. There's a small change, I think, we could make, if needed. If it's not made, I still feel as if we've reset the best interests of the child. The best interests of the child is no longer going to be seen in isolation from their family, their community, their nation and their culture. That's a huge advance. This will be the most progressive child welfare legislation in the G7 for children from indigenous backgrounds. This is a pretty major shift.

Will it, on the ground, be interpreted in this progressive way on the first day? No, it won't. The child welfare system is hard to change. I've been in it. There are times when we have to literally go to court to say, “Excuse me, you forgot that this child is an indigenous child and actually has a community. We want standing.” We have to fight sometimes.

It's not going to change overnight. The culture.... It's going to take a lot of work by a lot of people but at least get the shift going in the right direction. Then those of us on the ground and the young people coming forward will take those tools, and I think they will work with them. They're very capable of doing that.

[The Chair, Liberal, MaryAnn Mihychuk]

Sorry to interrupt, but there has been the suggestion that we move our committee time right to the 1:30 window, rather than now.

Yes?

Please continue.

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

Thank you. Sorry for that disruption.

I think my last question goes to.... I'm really trying to think of how to frame this, because I didn't know I was going to have this extra time.

When I look at the identity of a child, is this going to make sure...?

I think about my sons. For one year, when their voices changed, they had to go to the river every single day and bathe. I admire them greatly for doing that, because that's their culture. When I look at their progression as teenagers, I see the responsibility in them, the strength in them. That's who they are. That's where they're from.

Does this legislation make sure that even if it's hard to find a family member, we don't forget that they have to go back and do these traditional things and be connected to their community?

[Prof. Mary Ellen Turpel-Lafond]

Yes. I think what's very important to note is that for first nations families—my first nations family, others—the transmission of culture and spirituality has been very hard. I think the disruption that's been caused.... You had the witness speak earlier. It's been a horror. The revitalization of first nations culture, just like the revitalization of first nations languages, which the national chief and chiefs have promoted, these go together.

We will look back in 20 years, and I think we'll be in a much stronger place because of things like what your son is doing. Our children are learning their languages, even though their grandparents went to residential schools and they were told “don't”.

Our children do hold us to account. I know my children call me regularly and ask, “Mom, what are you doing about this problem? Why is this Indian Act there?” And I'll say, “I think I've worked on it a little bit, dear.” They are feisty. Young people are feisty, but they also realize that in Canada you can celebrate your first nations culture and identity, and actually, it's an answer to trauma.

This bill has a number of powerful provisions about recognizing culture, recognizing the connection to a territory, which are very important. Land-based healing is very important. There are concepts in here that I think affirm that. But it's the hard work of parents and communities to blanket their children that will really lead to the changes we need to make.

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

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Robert-Falcon Ouellette.

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

Thank you very much.

I appreciate the opportunity to hear you both speak.

I'd like to ask the Grand Chief a few questions surrounding jurisdiction and how an indigenous nation would go about passing legislation.

Obviously, we recognize you're from Treaty 4 territory, but you're also the national chief. Treaty 4 territory also extends into Manitoba. Is that correct?

[National Chief Perry Bellegarde]

Yes, and Alberta.

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

I have two questions. One is related to how you go about passing legislation.

What would happen if Manitoba, for instance, was exempted from this legislation and parts of Treaty 4 territory weren't allowed to participate with the rest of Treaty 4 because they're in Manitoba?

[National Chief Perry Bellegarde]

A good question. Again, Kukpi7 Wayne is going to be here later on today to talk about jurisdiction. That's for that territory in British Columbia. Even our Assembly of First Nations has our charter. You have one national chief. I'm not a grand chief. I'm a national chief elected by the 634, and 60% of the chiefs have to vote for me. I have 10 regional chiefs, and they're elected by the provinces and territories. How colonial is that? Are we even structured by nations? No. Are we structured by treaty territories? No, but it's starting to move.

Treaty 1 is getting organized, the Grand Council of Treaty 3, and then we brought Treaty 4 together. Our jurisdiction extends not only in the Province of Saskatchewan. We don't have a regional director general for Treaty 4. We have a regional director general for Saskatchewan region for our Indian Affairs department, our ISC department. You have your 10 RDGs.

Everything is set up by provincial and territorial government boundaries and doesn't take into consideration ancestral lands, treaty lands, treaty territories, so there needs to be a monumental shift in that. That's not going to be addressed in this. This bill is to facilitate a coming together of governments, to respect each others' jurisdiction. That's what this is speaking to. For example, July 8, 9 and 10 is the COF, the Council of the Federation. The premiers are coming together.

I mentioned earlier on that a few years back I got the premiers of Canada to agree to focus on one item, and that was child welfare. This bill is going to facilitate that further dialogue and a coming together to work out jurisdictions, whether you're in Treaty 4 or Treaty 1 or Treaty 7. That's what this is about. That's a transformational shift that has to happen. Get down to the table and work it out. It's not going to be easy, but at least this will facilitate that to happen province by province. At some point we will have a Treaty 4 government that extends jurisdiction throughout our Treaty 4 lands. We're not there yet, but it's a good suggestion. That's where I keep urging our people to go.

[Prof. Mary Ellen Turpel-Lafond]

I think the point is that clause 20 of the bill talks about being able to coordinate jurisdiction with not just one province but the provinces within which an indigenous people are located. Indigenous people have indigenous governing bodies. I think the legislation left it open because we are in transition, and we have to let people make choices about who is our government. That may not be an Indian Act band council, as the national chief has said. It may be in some places I work with, the Huu-ay-aht or Nisga'a or Haida. It's a nation-based approach.

The authority for children is authority over the people. A lot of times in western Canada, as you will know, there are even a lot of children from Manitoba first nations in British Columbia. We have to repatriate them. Child welfare involves making decisions about children who are connected to people and places. It's not abnormal for us to do it. It's just we have a pretty chopped-up child welfare system now and there's a lot of interprovincial transfers of children without any rules. This will allow us maybe to be a bit more coordinated and a bit more principled, and hopefully develop some regulations on some of the very specific issues you've raised.

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

It's interesting you raised the whole issue surrounding transition. Do you see this as a final “set in stone”-type law or is this going to evolve over time as we come up with better practices?

[Prof. Mary Ellen Turpel-Lafond]

Absolutely, it's not set in stone.

Again, as someone who has worked really in the trenches and at the high level, I see this as a framework. It's the framing of a house. There will need to be regulations and it just discusses regulations being developed in collaboration with indigenous people. That alone is an innovation. That's a very important innovation.

Whether it's the chiefs in Manitoba.... You know, they want their own child welfare law their way for the Assembly of Manitoba Chiefs, and that's fine. I think it's important to recognize that they can do that. Under this legislation, if they want to pass their own law, they can pass their own law on the first day. They can take their time. They can work within this. There are options.

This is the higher piece, but once they decide to go with an option, they may need some regulations about what the standards are and how they will share information and make sure children are protected as they transfer from a provincial system, because sometimes you have to be able to seize a child in an emergency, no matter who you are.

That's why it mentions dealing with emergency services in this act. If the kid's in downtown Winnipeg, you can't say, “I'm sorry, we can't do anything because it's a Norway House child. Let's wait till someone gets on a plane to come here.” You have to practically work things out, and how do you practically work things out as a matter of policy? You have legislation, you have regulations and you have policy.

No doubt we will have to get into some regulations. In the U.S., under the Indian Child Welfare Act, which has been in place for almost 40 years, there are comprehensive regulations developed that are passed by Congress that detail issues, and they're worked out over time and revised. That's just part of the process. Today you're dealing with the architecture of something. How it will be in fact finished, the finishing detail, and how it will have a full realization is going to take regulations. That's important, and I do agree with what was said earlier, that it will be good to look at it in three years. Maybe don't wait for five years, because you can see how it has worked and how it will unfold. I think it will unfold in a way that we'll work things out practically like Canadians do. Peace, order and good government: we work things out.

[The Chair, Liberal, MaryAnn Mihychuk]

That's a good place to end because our session has run out of time. This panel has been very interesting. Thank you so much for participating and being part of what we hope to have, a transformative legislative package that makes life better for indigenous children.

Meegwetch.

We are going to suspend for a couple of minutes and bring in the next panel.

[The Chair, Liberal, MaryAnn Mihychuk]

I call the meeting back to order. Please come forward quickly.

On our panel we have Grand Chief Arlen Dumas, the Ottawa Inuit Children's Centre and Natasha Reimer, Director for Manitoba at Youth in Care Canada.

Everybody come forward.

I know I'm rushing things a bit but you have very important things to say on one of the most important bills that we have before us, so I'm very anxious to get started. Thank you.

Please don't mind if committee members are getting refreshments, etc. We've been on a five-hour marathon and—