Indigenous and Northern Affairs Committee on May 9th, 2019

[Voices]

Oh, oh!

[The Chair, Liberal, MaryAnn Mihychuk]

I understand that there's been agreement that we will move to Katherine Hensel next, even though we also have, and are honoured to have, on this panel a minister of the Province of Ontario. We appreciate that.

We'll go to Katherine Hensel.

[Katherine Hensel, Principal Lawyer, Hensel Barristers Professional Corporation, As an Individual]

Thank you, Madam Chair, and thanks to the minister.

[Witness spoke in Secwepemctsin]

[English]

I also am Secwepemc. I am a mother of four and a litigator. Roughly 60% to 80% of my practice is in indigenous child welfare on behalf of indigenous agencies, nations, communities, grandparents, parents and occasionally other agencies.

My initial and very brief comments are that of course I endorse and am subject to the comments of our national kukpi7, Wayne Christian, and I unreservedly agree with all of them. I would note for the committee's benefit, and it's likely not news to you, that Bill C-92 does not grant anything to indigenous people. It merely constrains and compels provincial and federal systems and governments. Our jurisdiction, insofar as it exists...our laws are inherent, and, as has been noted to you by chiefs and other technicians who have appeared before you, are not subject to federal or provincial oversight. It has been open to any indigenous nation and community in Canada to exercise jurisdiction at all times—but for the act of suppression and lack of resources and the negation of that jurisdiction, or the attempt at negation of that jurisdiction, by provincial and federal Crown agencies and governments.

That said, with regard to this bill, while there is room for improvement, as you see reflected in the submission by Kukpi7 Christian and others, it comes at a time when, as you have heard from other witnesses, the situation on the ground is so critical that the legislation must occur in a timely way for a number of reasons that the committee is well aware of. While it was always open to any nation or community to exercise jurisdiction, the room and the resources were simply not there to permit them to do so. Jurisdiction has been continuously asserted since time immemorial, but no one other than Spallumcheen and Kukpi7 Christian's communities have been able to exercise it successfully and exclusively.

I have only one other comment with respect to Kukpi7 Christian's comments, and that is with respect to care providers. I would just qualify that where kohkom, or kikia7as—grandmothers—are care providers, they also, under many indigenous systems of law, may have standing, so they should not automatically be precluded from having standing under the bill. That's my one qualification of my unreserved endorsement of Kukpi7 Christian's comments.

Thank you. Kukwstsétsemc.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

We'll move now to the Government of Ontario. We have with us the Minister of Children, Community and Social Services and Minister Responsible for Women’s Issues, the Honourable Lisa MacLeod.

Welcome.

[Lisa MacLeod, Minister of Children, Community and Social Services and Minister Responsible for Women’s Issues, Government of Ontario]

Thanks very much, Chair.

Colleagues, fellow presenters, my name is Lisa MacLeod. I'm the minister responsible for children and youth, community and social services; women's issues; immigration and refugee...and poverty reduction in the Province of Ontario.

Two weeks ago I had the privilege of joining my federal, provincial and territorial colleagues in Saskatoon to discuss a wide variety of issues, indigenous child welfare and Bill C-92 among them. I can assure the committee that Ontario takes indigenous child welfare seriously, which is why we have supported 12, soon-to-be 14, indigenous-led children's aid societies focusing on customary care. We have 38 non-indigenous child welfare agencies. I'm happy that both Amber and Theresa are here today.

We recognize that indigenous children are overrepresented in care and we are committed to better outcomes for these children, their families and their communities. As I said in Saskatoon, Ontario is cautiously optimistic about Bill C-92 and the desire for better support for indigenous children and youth in care.

That said, in alignment with my provincial and territorial colleagues, I do have some concerns that I'd like to share from our perspective. After consulting with indigenous leaders in Ontario, there are a number of implications for Ontario, specifically with respect to definitions, standards and requirements, paramountcy, affirmation of self-government, jurisdiction and, of course, funding.

Let me walk through some of the implications for the Province of Ontario.

Our preliminary analysis has identified a number of potential impacts in the following areas.

One is definitions. Where definitions in Bill C-92 differ from or are inconsistent with those in the Children, Youth and Family Services Act, there could be resulting implications for the interpretations of the CYFSA. For example, the roles contemplated for indigenous governing bodies in Bill C-92 may not align with those set out for bands and first nations, Inuit and Métis communities under the CYFSA.

Two is the standards and requirements. Requirements, for example, related to rights to make representations and information sharing in Bill C-92 that are different from or inconsistent with those in the CYFSA could impact how Ontario's indigenous and non-indigenous children's aid societies provide services to first nations, Inuit and Métis children and families. For example, Bill C-92 and the CYFSA contain different provisions addressing the best interest of the child. A further clarification from Canada would be appreciated on how the provision of “minimum standards” is to be interpreted in the case of conflict or inconsistency, particularly where they are lower in Bill C-92 than within Ontario's CYFSA.

Three is paramountcy. Further clarification from Canada would be appreciated on how paramountcy will operate in relation to a number of issues, including situations of conflict or inconsistency between or among indigenous, provincial and federal laws. Further analysis will be required to identify CYFSA provisions that may be rendered constitutionally inoperative under the doctrine of Bill C-92 if it becomes law. We would appreciate the constitutional law branch of Ontario working...to best address that.

Four is the affirmation of the inherent right of self-government. This affirmation by Canada in Bill C-92, that the inherent right of self-government is recognized and affirmed in section 35 and includes jurisdiction in relation to child and family services, goes beyond the current state of the law. This affirmation could support trilateral discussions on jurisdiction in order to advance indigenous aspirations. We would appreciate clarification on how we can best address that.

Five is jurisdiction and law-making. There may be implications for a bilateral process with first nations' partners on the potential implementation of laws and systems. Some partners may see federal legislation as a complication or a burden and press the province to rush agreements in advance of the legislation's coming into force.

Six is funding. Without mandated federal funding to support Bill C-92, there is no clarity on how implementation will be funded and how existing funding relationships among Canada, Ontario and first nations will be impacted. The absence of mandated funding in Bill C-92 also reinforces the existing gap in federally funded services for Inuit and Métis children and families.

Finally, I want to reiterate the chief's point on Jordan's principle. As you will see and probably hear from my provincial and territorial colleagues, we would like greater clarification with respect to that.

The positions of indigenous partners in Ontario will be represented here today, but I just want to share a few that I have received in my ministry.

First nations in Ontario have also been analyzing the intent of the bill to assess its implications and determine their support, but all have raised concerns with our ministry about the lack of a specific commitment to funding in the act. Ontario Regional Chief Archibald, in her response, noted that “Nothing guarantees funding...will be needs-based and equitable”, and that without funding tied to the legislation “we risk not being able to exercise our jurisdiction”. The Chiefs of Ontario has also expressed concerns that Bill C-92 will erase gains in Ontario and lower standards. The NAN Grand Chief Alvin Fiddler noted in his response that the bill fails to recognize exclusive first nations jurisdiction over children wherever they reside. The Association of Iroquois and Allied Indians Grand Chief Joel Abram noted that a lack of statutory funding could result in a lack of support from AIAI. Anishinabek Nation Grand Council Chief Glen Hare has stated that the Anishinabek Nation is “encouraged by the introduction of this bill today and see[s] a path forward to right the wrongs that continue to be endured by our families and our communities.”

Other first nations, Inuit and Métis partners have indicated similar concerns to our ministry over the past several weeks since I arrived back from Saskatoon.

With that in mind, I would request clarity from the federal government, both for Ontario and for our indigenous partners in Ontario, on which sections would be proclaimed upon passage. Here I would reiterate the call by my provincial and territorial partners for the federal Minister of Indigenous Services to come back to the table and meet with his counterparts so that we can seek greater clarity on how this will impact child welfare in our indigenous communities throughout not only our province of Ontario, but also the rest of Canada, as we are sharing our jurisdiction here.

Thanks very much for your time and attention. It was a great honour to be here with you, Chair, as well as my esteemed presenters and, of course, with your colleagues.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much.

Our last presenters are from the Association of Native Child and Family Service Agencies of Ontario, Theresa Stevens and Amber Crowe.

You can start any time you wish.

[Theresa Stevens, Executive Director, Association of Native Child and Family Service Agencies of Ontario]

Good afternoon, committee members. Thank you for the opportunity to present on this critically important issue to the future of our children.

[Witness spoke in Ojibwe]

[English]

I'm Theresa Stevens, Executive Director of the Association of Native Child and Family Service Agencies of Ontario. ANCFSAO was incorporated in 1994 as an organization, though our agencies have been designated since 1987. In one configuration or another our agencies have been providing prevention services in one capacity or another since the 1970s. We're a provincial indigenous organization. We've been mandated to build a better life for all indigenous children through the promotion of culturally based services for our children, families and communities. We represent 13 of the 14 indigenous child well-being agencies in Ontario and our agencies serve 90% of all first nations in Ontario.

We are the technical voice of indigenous child welfare, so we are the child welfare practitioners on the ground, and we're a reference group for governments and service collaterals to consult with about indigenous child well-being. We're a membership-based organization and our job is to provide resources to our member agencies to provide quality services to our members through education and training, policy development and analysis, and research and advocacy.

Our membership was engaged by Indigenous and Northern Affairs Canada on the legislation in August 2018. During that engagement several themes did arise. First of all, as technical experts, we did share with Indigenous and Northern Affairs Canada the importance of cultural congruence and enhancement of cultural identities. We were consistent in stating that this was critical to any potential legislation to do with indigenous child welfare. We also were consistent in stating that federal legislation must recognize the cultural diversity of all of our first nations, and that cultural systems needed to be in place to form the foundation of any child welfare practice.

We were also concerned about the engagement process. We wanted to ensure that it's understood that our participation in the process could not be misconstrued as consultation as per the Crown's obligations. Then we also made recommendations around socio-economic conditions. We stated that we felt unless the legislation addressed the underlying socio-economic conditions of what brings children into care in the first place, it wouldn't go far enough. We noted the need to reduce overrepresentation and the issues of why children come into care, such as poverty, unemployment, poor housing, food instability, domestic violence and addictions.

We also did make a recommendation about funding, and that it needs to be needs-based funding and based on actual costs, while accounting for remoteness and case complexity.

Then in relation to these four themes, we also had four principles. We thought it was important the legislation reflect flexibility, as well as family, community and nation preservation and prevention, which we feel is central to indigenous child welfare practice. Then there was first nations jurisdiction and sovereignty, as well as that quality care must be based on best practice.

Just to reiterate, we receive our mandate from our first nations. Our agencies are formed by a group of first nations coming together and, through a resolution, identifying us as their service provider to protect their children on their behalf. As such, we take our direction from the leadership of our first nations and fall in line with the direction they provide to us on how they want to proceed with the federal legislation.

[Amber Crowe, Board Secretary, Association of Native Child and Family Service Agencies of Ontario]

Good afternoon.

[Witness spoke in Ojibwe]

[English]

I am from Alderville First Nation, and my name is Amber Crowe. I am the Executive Director of Dnaagdawenmag Binnoojiiyag Child and Family Services, which is the newest mandated agency in Ontario, through the Ontario ministry. We serve eight first nations.

You have our written submissions. I will highlight four key points or concerns from our submissions as the practitioners or deliverers of the services to be provided under the legislation.

As Theresa just mentioned, we receive our mandate from our first nation leadership and other indigenous communities for those agencies that serve a broader population base. As such, we will follow the political decisions and will of the first nations that belong to our agencies, but we also receive a mandate through the provincial legislation.

Because we follow our first nations leadership, we have the potential under this bill to be subject to multiple laws and jurisdictions. We serve multiple first nations who they will all have their own paths and priorities with regard to how to deliver services under this act. If that's the case, we need to ensure that the risks are mitigated in delivering services under possibly multiple pieces of first nation legislation.

We also want to raise the issue of the definition being used in this act. It is the same definition of indigenous aboriginal peoples as in the Constitution. That definition includes only Indians, Métis and Inuit. For many of our agencies, this does not reflect our current service populations. We serve more than just those who are eligible under the Indian Act as Indians. We also find that using that definition would go against the charter itself. It would require us to discriminate against our children, on the basis of status, and perhaps on the basis of where they live.

The principles put forward in this legislation include cultural continuity, best interests and substantive equality. These principles would not be the basis of the bill, if this definition of indigenous peoples is used.

A further issue we want to raise is needs-based funding. We must not have a formulaic way of funding indigenous child welfare. It must not incentivize the taking of indigenous children into care. We need it to be needs-based and flexible. It needs to be able to fund our service models, which are holistic and prevention-based. Finally, it needs to consider remoteness, the complexity of needs and the availability of resources in the area where services are being provided.

The final point we want to bring attention to in our oral submissions is the experience of practitioners delivering services under imposed standards and regulations defined and provided for us, rather than through our indigenous communities from the ground up—from the grassroots. We would be concerned that the provisions of this law would impact our ability to provide services the way our first nations direct us to. That is not to say that we disagree with anything in the bill with regard to these things, but it's not Canada's place to provide them. It's the place of the indigenous communities to provide them.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

All right.

We are now moving to the question portion of the meeting, beginning with MP Will Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you to our distinguished panel.

I'm most curious about the jurisdictional aspects. We've had an interesting discussion around the division of powers throughout the course of these meetings. We had one law professor from Saskatchewan assert that there may be issues around clause 7 of the bill, particularly insofar as it specifically references the provinces.

I've heard Ms. Hensel's comment around inherent jurisdiction. I take that point. Notwithstanding that, I think a Canadian constitutional question is still being brought to bear on this. I'm really curious to hear Ms. Hensel's views with regards to what the Province of Ontario asserts are some of the jurisdictional issues.

I'm also curious to hear Minister MacLeod's views on whether there is any particular issue especially around clause 7 because it specifically mentions the provinces. I would mention also that on Tuesday we heard from Professor Peter Hogg who made it abundantly clear, as has Justice Sébastien Grammond in a recently published article, that there is absolutely no constitutional jurisdictional issue that the federal government can occupy this field to enable indigenous control over child welfare.

Over to you please, Ms. Hensel.

[Katherine Hensel]

The minister will correct me if I'm wrong. Within the past few years, Ontario has at least tacitly acknowledged the potential for the exercise of inherent jurisdiction on the part of first nations in Ontario. In my view that is completely consistent with the content of the bill. That's what's contemplated.

With that said, under the Van der Peet analysis, section 35 of the Constitution also does not grant anything to indigenous people. It merely constrains Crown activity that infringes on any inherent or treaty rights that indigenous people may have. This is the rule of indigenous law, and jurisdiction is just an element of that.

Insofar as clause 7 imposes a constraint on a province, I would submit that it's merely Canada acknowledging its own predominant obligations to indigenous people and to take the lead in that regard. I think this bill does so.

Ministers Philpott and Bennett acknowledged the critical need to do so over a year ago in Ottawa at the inter-ministerial meeting. There may be jurisdictional challenges, operational challenges and interpretive challenges, but I stand by my earlier suggestion that the jurisdictional aspect, as Chief Christian noted, predates anything that's been happening in these territories for the last 500 years.

Absent the only potential complication in a Canadian constitutional framework and from a Canadian court is the last stage of the Van der Peet test with respect to justification, as in, is the infringement on an inherent right justified? Without resources we run the risk of having a successful challenge by a province or someone else.

[William Amos, Liberal, Pontiac, QC]

Hence, the need to incorporate that kind of thing into the body of the law.

[Katherine Hensel]

Yes.

[William Amos, Liberal, Pontiac, QC]

Thank you.

Minister.

[Lisa MacLeod]

In Ontario, we recognize that, constitutionally and legally, there is an intersection between the federal government and the provincial government in indigenous relations. I think my presentation was fairly clear that we're more concerned about some of the standards that we have in place in Ontario being diminished, in a sense, in many ways from the child protection aspect that we have.

As I stated to the minister when we were in Saskatoon, I was cautiously optimistic and we do hope for the success of this. I'm simply here bringing some of the concerns that we have, predominately between clauses 10 and 17 of the bill, and what they mean for our Children, Youth and Family Services Act. Will we have to make amendments to that legislation?

That's why I'm seeking some clarity in that regard of what happens when the bill passes. You have a majority; I know how this all works. Are all aspects of the bill going to receive royal assent immediately, or will there be an opportunity for the provinces and territories to take some time and work with the federal government to work out some of these details?

As I said, in Ontario we're very proud that we have 50 children's aid societies, 12, soon to be 14, of which will be indigenous-led. I think we're making great strides, and my two counterparts from Ontario at the table here today who have spoken about children and youth in that indigenous sphere speak to the possibilities we have.

We're taking, I believe, a collaborative approach between our province and the federal government with respect to this piece of legislation. I can't say it's going to be so on every piece of legislation, but we're certainly happy in this regard to make sure that the real focus here isn't between a bunch of politicians in Toronto and Ottawa, but on the child, the family and the community.

That's what we've tried to do in Ontario, and I just want to make sure that the intent of this bill, which I believe comes from a good place, looks at that little child who is going to be part of customary care in Ontario and continues to receive those wraparound supports.

That's my motivation; that's my goal. I'm not as interested in having a constitutional argument as much as I want to make sure that the standards we have in place in our legislation that have empowered Ms. Crowe's and Ms. Stevens' organizations aren't watered down. That's the challenge we all have as legislators, and that's simply where we're at.

We just want to have that clarification. As I speak on behalf of my colleagues on the provincial and territorial level, I would appreciate having an additional conversation with the minister, but I certainly welcome the opportunity to be here today and to share some of the concerns we have with respect to the legislation we already have in place and to ensure that its integrity remains intact.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

The questioning now moves to MP Cathy McLeod.

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

Thank you, and I hope to share my time with MP Kevin Waugh.

Grace McCarthy is a voice from the past. I'm also from British Columbia.

I really do appreciate the forward-looking work. I've been witness to it where I live in British Columbia, where there has been significant progress, as we hear is happening in Ontario. We understand that there are other provinces where there continue to be significant challenges, but I think everyone, whether it's provincial.... Every party in the House says this is important and that we need to move forward.

I think there are concerns about how fast we're having to move forward because of where we are in the parliamentary cycle. Sometimes you make mistakes when you move things forward rapidly. The ability to hear from the provinces is a challenge when you're trying to move things rapidly, but I think everyone wants what's going to be best for the children. I think that goes without saying.

I'm going to start with Ms. Hensel. I've asked this question a couple of times, and I've had two answers.

Regarding section 88 of the Indian Act, someone said not to touch the Indian Act, which is where, of course, the province has been given authority for children on reserve. I asked if that section should be deleted. One person said not to touch it, because it's dangerous, and there was an indication from, I think, the Manitoba chiefs who thought that was something that should be done.

Do you have any comments about that?

[Katherine Hensel]

Under the standard interpretation—

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

It's the Indian Act.

[Katherine Hensel]

—of section 88, provincial law applies where the federal government hasn't expressly occupied the field or where it doesn't go to Indianness. For example, Ontario has jurisdiction pursuant to a funding agreement, really, or a physical relationship, and there's no positive delegation of authority. All that section 88 says is that provincial law applies where it doesn't go to the heart of Indianness and where the federal government hasn't expressly legislated otherwise.

That's simply not the case. The provinces merely assumed authority, and I believe it was convenient for the federal government at the time to have that authority delegated. It was done through different mechanisms in different places, but if you go back to first principles around the division of powers and provincial and federal jurisdiction, the relationship with indigenous peoples is squarely in the federal mandate and jurisdiction.

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

You have concerns about the gap in that piece.

[Katherine Hensel]

Because the provinces have been occupying the field, section 88 will be a lever through which provinces could challenge, or others might insist that the provinces continue to have exclusive jurisdiction over children on reserve.

I have a concern that challenges will be brought. I don't think they ought to be brought, but they might be. As to their success, I think that if you revert to first principles, nothing goes more squarely to the heart of who a people is and to their Indianness than whether, how and to what extent they govern themselves as a people in relation to the care of their children. That is a core governmental function and if we're going to have self-determination in any iteration, then indigenous nations have to have the right to make laws and enforce them.

It's not just the authority to care for their children. It's the right to make laws and enforce them, including on an involuntary basis. I think section 88 ought not apply.

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

Minister MacLeod, was the meeting that you had just a couple of weeks ago your first conversation with the ministers about Bill C-92? Have there been any other conversations?

[Lisa MacLeod]

We would have appreciated a dialogue in a ministers-only approach and didn't receive that. We've advocated for that. There was great leadership by my colleague from Saskatchewan, who chaired that process. We had many different voices around the table, which I thought was important and provided a good perspective.

I think when you look at child welfare—the provinces are responsible for that and we're working with our partners on the ground, and I can speak for Ontario in particular—we want to make sure that those voices in our indigenous communities are being represented. As the minister responsible for child welfare in Ontario, I got the sense that they weren't adequately consulted. My job is to make sure that their voice was heard around the table and I did express directly to the Minister of Indigenous Services that I am cautiously optimistic. I want this to succeed because indigenous children in Ontario—and I'm sure it's the same elsewhere across the country—are overrepresented in the children's aid societies, and that's heart breaking. It's the same with the LGBTQ+ children, as well as youth of colour.

How do we do a better job? Of course, we want to have a good, strong federal partner that allows us to succeed, but when we've reached out to our indigenous partners—I first started to do that in March and then we did this again in May—they didn't feel they had been heard.

I just wanted to make sure today that I came here wishing this committee and the government great success because its success means that children are protected and that we're advancing and moving forward. I think we always have to make sure that if there are higher standards in a province, we race to the top, not to the middle. I guess I would be here today because we have great success. We have incredible partners. They're doing amazing things. One of the first things I did after I was appointed 11 months ago—and I have five different ministries—was to meet with my colleagues because this is a serious issue in our province and I know it is elsewhere across the nation.

We have to continue the dialogue. I know that there are so many competing voices because there are so many jurisdictional issues, but I think that the best way for us is to hear each side and to make sure that as we have this conversation our focus is on that seven-year-old child who may be without a mom or a dad. I get that there's jurisdiction and I get that there's a Constitution. As someone who wrote a thesis on the Constitution, I understand that, but my focus is on that seven-year-old child.

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

I didn't take Kevin's time?