Evidence of meeting #149 for Indigenous and Northern Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was c-92.
A recording is available from Parliament.
1:20 p.m.
Liberal
The Chair Liberal MaryAnn Mihychuk
You've already used seven minutes, so you've used up Kevin's time and all the time.
Now we're moving questions to MP Rachel Blaney.
1:20 p.m.
NDP
Rachel Blaney NDP North Island—Powell River, BC
I'd like to thank you all for being here today.
I would like to start by asking a question of Chief Christian and perhaps it will also be relevant for Ms. Hensel.
One of the things that you mentioned in your speech to us was around the definition and understanding of a child's best interest. From the story you told about your community and the work that you have done, it feels like that has been strongly identified. One of the concerns that has been brought forward is that the definition of a child's best interest might be interpreted from a colonial perspective in this framework legislation and not really touch on the key core values of the indigenous community.
I'm wondering if you have any recommendations, thoughts or advice to give this committee about how to make sure that that definition is strong enough in this legislation.
1:20 p.m.
Tribal Chief, Secwepemc Nation, Shuswap Nation Tribal Council
One key component is that the definition has to be expanded to include family, communities and cultural continuity as a primary consideration. The bottom line is that when we deal with this in the communities, we're dealing with it from that perspective of knowing the families who are right on the ground, historically, perhaps going back 40 years, knowing who they actually are. That's a big issue, and understanding those connections and then understanding the extended family outside of our community with the Tsilhqot'in nation. It has to have that type of definition that includes the families and the communities as a primary consideration—extended family, not just the biological family. That's really an important consideration.
Those are things that will strengthen it and give the ability in that best interest, which again, should be based on the culture and the nation itself as to how they define that. There are differences in some of the cultures in terms of what that definition might be, but there are some similarities in terms of extended family connection, and that's what's really important. That's how it can be strengthened.
That's what we noticed in the bill. It has to be strengthened in that area, because it will not cover it otherwise. It just has a definition similar to the provincial government's, which doesn't necessarily work.
1:20 p.m.
Principal Lawyer, Hensel Barristers Professional Corporation, As an Individual
I have learned the hard way in Ontario through the previous iteration of what's now the CYFSA that if you leave a best interests test and place it before a Canadian court or with a non-indigenous agency, what happens is that it's interpreted and applied in a very culturally grounded way. It's not just culturally influenced, but what's in a child's best interest is a real, crucial, central element of culture.
Any time you apply a provision that enumerates different components of how to best ensure a child's developmental needs, for example, the culture that the child is being raised within will determine how you do that and what's in their best interests. When you place a test such as this in front of a non-indigenous court, you'll get a non-indigenous answer to how to best meet that indigenous child's developmental needs, and it often will be the wrong answer.
Ontario's act now has, partly because of the case I lost before the Ontario Court of Appeal, strengthened best interests. It says that, for indigenous children, culture is a central consideration. Ontario has strengthened that. In other parts of the country, it's irregularly applied.
Therefore, I agree with Kukpi7 Christian that it ought to be strengthened. The predominant issue of indigenous culture should be emphasized and strengthened for the best interests test in here. If you take this best interests test and you put it in the hands of or attempt to overlay it onto an indigenous nation's inherent laws, they're going to interpret it and apply it in a way that is determined by their culture and by their own laws. That doesn't render it inconsistent with those laws necessarily, which I know is a concern that has been raised by others.
It is fraught with peril. When you put best interests in the hands of a non-indigenous agency, even an indigenous agency operating under a provincial statute, and a non-indigenous court, you can have some very poor outcomes, so it does need to be constructively emphasized in the text of this bill.
1:25 p.m.
NDP
Rachel Blaney NDP North Island—Powell River, BC
Thank you. I appreciate that.
Ms. Crowe, I saw you had some excitement. Do you have something you'd like to add to that?
1:25 p.m.
Board Secretary, Association of Native Child and Family Service Agencies of Ontario
I would start by saying that the best interests need to be defined by the first nations and indigenous communities who will be enacting laws, rather than being provided by Canada, but then I also agree with what was said, that if it's going to be defined, it needs to be there.
What I was excited about was Katherine's mention of the test for whether something is provincial or federal jurisdiction and that per the core of “Indianness”, as mentioned in the case law, I don't know how child welfare and child and family services is not qua Indianness as per those tests. Therefore, I don't know how any province could argue that they had the constitutional jurisdiction.
It's problematic because, of course, it's about Indians, which we've said in our submissions is not acceptable.
1:25 p.m.
NDP
Rachel Blaney NDP North Island—Powell River, BC
Ms. Crowe and Ms. Stevens, I'm just going to come back to you. You talked about some of the concerns you have about implementing this as an organization overseeing multiple indigenous communities and that there are people you're afraid you're going to be leaving out.
Could you fill us in on that a little more?
1:25 p.m.
Board Secretary, Association of Native Child and Family Service Agencies of Ontario
I'll use my own agency, as I know it best. I have eight first nations, and they don't all belong to the same political-territorial organizations. I have a minimum of three, possibly four. They could choose not to even follow their PTOs; they could choose to do their own. That complicates it.
I also have a mandate and jurisdictional intention to serve all indigenous people within a very large geographic jurisdiction that includes both on and off reserve. It also includes self-identified indigenous persons, not only Indians, Métis and Inuit. We could have a law from the Métis Nation Of Ontario, a law from the Chiefs of Ontario, and a law from Alderville First Nation. We could have several laws, so the complexity of being able to provide the services is to know which law applies for each child. The front-line worker is going to have to know and understand multiple laws. Even with one law, the services aren't provided the way they're supposed to be.
1:25 p.m.
Liberal
The Chair Liberal MaryAnn Mihychuk
That concludes our time available. We have an obligation to go in camera, so I'm afraid that we're a bit jammed for time. Before we get into our committee issues, on behalf of all MPs, I want to thank you for coming, presenting and providing guidance to us as we look at this very important bill.
Meegwetch. Thank you for coming.
Now we need to clear the room.
[Proceedings continue in camera]