Good morning, everyone. My name is Bobby Narcisse. I'm with Nishnawbe Aski Nation, NAN, originally from the Aroland First Nation within Treaty 9 and Treaty 5. We too would like to acknowledge the territory of the Algonquin people. We are very happy to be here to do a submission to the standing committee.
Nishnawbe Aski Nation takes this opportunity to share its views on Bill C-92, an act respecting first nations, Inuit and Métis children, youth and families. NAN is supportive of the idea of federal legislation affirming first nations jurisdiction in the area of child and family well-being, but is concerned about certain weaknesses in the current drafting of Bill C-92.
Nishnawbe Aski Nation has a chiefs committee on children, youth and families, and it has deliberated on federal child and family service legislation on multiple occasions over the past nine months. Our chiefs committee members are intimately and painfully familiar with the violent failings of the current child welfare paradigm and with the harms caused by well over a century of federal and provincial interference in the lives and governance of Nishnawbe Aski Nation communities and families. Equally important, the chiefs committee members are intimately and gratefully familiar with the strengths and wisdom of our elders and ancestors and the cultural, intellectual and spiritual richness they and their communities have to draw from and build on.
This submission assesses Bill C-92 against key characteristics for legislation as identified by the chiefs committee on children, youth and families, and endorsed at a chiefs meeting on child welfare on October 2018. Federal indigenous child welfare legislation must facilitate a paradigm shift in child and family services. For too long, these services have failed our children, youth and families.
With this in mind, Nishnawbe Aski Nation advocates for federal legislation that, first, affirms inherent first nations jurisdiction in the area of child and family well-being and affirms that such jurisdiction is exclusive where so asserted by a first nation, regardless of the place of residency of a first nations child. Such affirmation recognizes that first nations are best positioned to make determinations about what is in the best interests of their children.
Second, we advocate legislation that guarantees adequate, sustainable, predictable, equitable funding for first nations to enable the exercise of inherent jurisdiction in the area of child and family well-being. The legislation ensures that the use of words such as “co-development” and “collaboration” are defined and operationalized as meaning “true collaboration”. Such concepts should be used to facilitate fulfillment of, and not replace, the duty to consult and obtain free, prior, informed consent. These concepts should also ensure a complete break in the way in which the “best interests of the child” has been used in relation to first nations children, youth and families.
With respect to jurisdiction, the first stated purpose of Bill C-92 is to affirm the rights and jurisdiction of indigenous peoples in relation to child and family services. This is a good starting point. The current drafting of Bill C-92, however, waters down first nations jurisdiction. The lack of recognition that we may exercise exclusive jurisdiction over our children, together with the retention of an overriding power by Canada and provinces and/or their service providers and judges through invocation of the best interests of the child, mean that Bill C-92 does not fully recognize our people's inherent jurisdiction over child and family well-being.
With respect to funding, Bill C-92 contains no legislative guarantee of funding for our children and families. This is deeply concerning. It is not enough that the statement in the preamble acknowledges the ongoing call for funding for child and family services that is predictable, stable, needs-based and consistent with the principle of substantive equality in order to secure long-term position outcomes for indigenous children, families and communities. This call needs to be met with legislated guarantees of such funding.
The Caring Society case at the Canadian Human Rights Tribunal has shed light on human rights violations that occur when funding for our children is not legislated.
In 2011, the Auditor General of Canada identified the lack of a legislative base for on-reserve programs and inadequate funding mechanisms as two of four structural impediments that severely limited delivery of public services and hindered involvement in living conditions on our first nations communities.
The deputy minister of aboriginal affairs and northern development Canada at the time testified before the Standing Common on Public Accounts, in 2012, about the Auditor General's report and explained the following:
One of the really important parts of the Auditor General's report is that it shows there are four...missing conditions. The combination of those is what's likely to result in an enduring change. 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 is the combination of these tools....
We need a paradigm shift. We need enduring change. Legislation must come hand in hand with legislative guarantees of funding. The proposed legislation must have at least some sort of degree of funding guarantee. Ontario's new policing legislation offers a good template for what an effective legislative funding remedy might look like.
With respect to collaboration, since August 2018, NAN has raised several concerns with ISC about proposed indigenous child welfare legislation, including the use of co-development to describe the process. We want to ensure that given the concerns to date, Canada's process of co-development....
This provision regarding collaboration is worrisome. Canada has a constitutional duty to consult first nations when it contemplates actions affecting their rights under section 35, which the regulations under Bill C-92 would do. The duty is also articulated in the United Nations Declaration on the Rights of Indigenous Peoples, which makes it clear that Canada must obtain free, prior and informed consent of first nations.
Also, “the best interests of the child” is a concern with the way it is drafted in the bill. In a statement of principles developed in September 2018 to guide its deliberations regarding federal indigenous child welfare legislation, the chiefs committee stated, “The federal government has utterly failed our children and families. In the name of “best interests of the child”, first the Indian Residential Schools system and then the child welfare system, have ripped our children from their families, communities.... The effects of these actions are ongoing and intergenerational. Canada and its provinces have no credibility asserting a right or ability to act in our children's best interests.”
NAN is encouraged by the thought of federal indigenous child welfare legislation with the purpose of affirming the rights and jurisdiction of indigenous people in relation to child and family services. Bill C-92 should be strengthened to clearly recognize that our inherent jurisdiction in this realm is exclusive, guarantee adequate funding for the exercise of our jurisdiction in this area, avoid ambiguity introduced by the ill-defined use of “meaningful opportunity to collaborate” and discard colonial, paternalistic, damaging notions perpetuated by “the best interests of the child” provisions to ensure a complete break from the past.
We are ready for a new paradigm in first nations child and family services.
Meegwetch.