Indigenous and Northern Affairs Committee on May 14th, 2019

[Suzanne Grondin]

I'm not sure I understand the question.

[Daniel Watson]

My department works very closely with the Department of Justice and is advised by council on settling the day schools issue, yes. If you're referring to the one, for example, that was noted in the media as having been at a hearing yesterday, for example, counsel is representing us.

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

Yesterday I noted that Gowling, which I guess has been tasked with this particular issue, determined that there would be no process around the assessment of.... I understand there's an opportunity...$50,000 to $200,000 in terms of those who suffered abuse, which is apart from the settlement. What will be the process around proving those particular issues in terms of the settlement?

[Daniel Watson]

Given that it's the subject of a hearing at this very moment I'm unable to comment on it at this time.

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

The lawyer for Gowling did indicate that there would be no cross-examination because of the traumatization to the victims.

[Daniel Watson]

Again, that's under hearing at this very moment, and I'm unable to comment on it.

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

Thank you.

I'm going to go to Mr. Tremblay now. We had the Daniels decision. That was a couple years ago. Of course, you're responsible for the delivery of services. How has that Daniels decision impacted...? Have you identified the numbers that would be impacted by the Daniels decision? Have you started to put in place any delivery of services pieces to that? Can you give us an update on that?

[The Chair, Liberal, MaryAnn Mihychuk]

Make it very short—15 seconds.

[Jean-François Tremblay]

Daniels stated, if I remember well, that all those indigenous people fell under section 91(24), which is a legislative authority that the federal government legislates for the Indian.... It doesn't mean that programs that are specifically for first nations, Inuit, or Métis will suddenly be for everybody. That's not our interpretation. The question is, how do you support all indigenous people who self-identify as indigenous in closing gaps in social and economic conditions, if there is a social and economic conditions gap? I think it's more an answer for all the departments, not necessarily a response for specific programs for Daniels. We have some programs that are for all indigenous peoples, but most of the time all programs are more for first nations—as you know, a high percentage, especially on reserve—and after that it's Inuit and Métis. We have only a few programs that are really for all indigenous people. I would invite you to look at.... Recently there was an announcement on infrastructure in urban areas, which likely would have an impact on all indigenous people, even if we would work closely with first nations, Inuit, and Métis. That has been the policy in terms of our programs.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much for attending and working with us for two hours. It was very generous and informative. We appreciate all your information.

Meegwetch.

The meeting is suspended for a couple of minutes. Then we'll have the new panels come up.

[The Chair, Liberal, MaryAnn Mihychuk]

Welcome, everybody. Thank you very much.

We're running a little bit late as we transition from one bill to another. In this case, we're going to Bill C-92, which attempts to begin to deal with one of Canada's most horrific circumstances: indigenous children being placed in foster homes and being moved and losing their culture. It is estimated that there are more children in care than there were in residential schools. This bill aims to address the negative impacts of that circumstance, so we're very interested in hearing from our panellists. We are on the unceded territory of the Algonquin people here and we continue our discussions.

We have three panels. We have one panel with three witnesses. You have up to 10 minutes each and then we'll go into questions from members of Parliament.

Jocelyn Formsma is the executive director of the National Association of Friendship Centres. Welcome.

[Jocelyn Formsma, Executive Director, National Association of Friendship Centres]

Thank you so much for the invitation. We appreciate the opportunity to provide comments this morning.

Wachay misiway. Jocelyn Formsma nitoscheen.

I'm from the Moose Cree First Nation. I'm currently the executive director at the National Association of Friendship Centres.

For the last 15 years or so I've also been an indigenous children's rights advocate and an advocate for indigenous youth engagement and leadership development. I've also been engaged with various aspects of child welfare reform.

I've been a board member of the National Indian Child Welfare Association for the last 12 years. I assisted with their international advocacy work, which resulted in helping to bring about the first set of Indian child welfare act regulations in the 36 years of the act's enactment.

Today I'm going to provide you with an overview of how friendship centres have been engaged in child and family services, our perspectives on the bill, and how we think it might affect indigenous people living in urban settings. I'd also be happy to speak to questions related to experiences with the Indian Child Welfare Act if I'm asked following this presentation.

The work of friendship centres in child and family services is largely unknown and unrecognized. As you know, friendship centres provide a wide range of services, many of which can be considered prevention services such as prenatal supports, parental supports, child supports, programs that help families keep and care for their children and programs that assist parents to get children back if they are apprehended.

We have developed a cultural competency curriculum for foster parents, providing essential cultural programming for children living in care. Foster and adoptive parents often use friendship centre programming to ensure their foster or adopted child or children have access to culture and community.

Friendship centres are the sites of supervised visits, have sometimes been the sites of apprehensions and have also been called upon to provide intervention services on behalf of child and family service agencies or court supports to indigenous children, youth and families. Friendship centres also provide aftercare support services for youth who are leaving care.

In regard to the bill, we do not see the explicit consideration for urban and rural-based indigenous children, youth, families and communities.

The NAFC, as the secretariat for the Urban Aboriginal Knowledge Network—soon to be disbanded due to lack of funding—facilitated community-driven research initiatives that looked at the situation of indigenous children in care and indigenous families involved with the child welfare system, exploring the need for culturally appropriate training for non-indigenous caregivers of indigenous children in care—all from an urban lens.

Many definitions within the act currently are broad enough that arguments could be made for our inclusion, but we fear without explicit inclusion, it also allows for passive exclusion.

We have drafted a brief paper that outlines some of our perspectives and we would like to provide that to the committee for your consideration. It outlines some of the perspectives that we feel are necessary to consider before finalizing the act.

In reviewing Bill C-92, the NAFC has some concerns around the on-the-ground realities of implementing jurisdiction regarding indigenous children who live in urban settings. While the NAFC fully supports and promotes first nations, Inuit and Métis jurisdictions, we know that in reality the resources are often not available or sufficient for indigenous governments to be able to provide the full range of services required in the towns and cities in which their members reside. Friendship centres and other urban indigenous organizations that provide similar services are often unintentionally left to work with indigenous children, youth and families who are not currently receiving services and supports from their respective indigenous governments.

The NAFC would like to be put on record as being interested in, and having unique perspectives to inform, the development of any and all regulations that may come if Bill C-92 is passed. The regulations section of the proposed act makes mention of the inclusion of indigenous governing bodies in the consultation process of developing said regulations. We believe our insights and the insights of friendship centres can help ensure that regulations and policies will be reflective of the needs of indigenous peoples who reside in urban settings.

We have a number of recommendations on Bill C-92.

One regards urban indigenous inclusion. Rural and urban-based indigenous children, youth, families, communities and organizations ought to be mentioned in the drafting and implementation of this act. At present, we feel the broad language of the act does create space for the inclusion of urban indigenous peoples, but we also fear that the broadness may result in exclusion.

In terms of jurisdiction, there needs to be more clarity on the expression and extent of jurisdiction amongst and between different first nations, Métis and Inuit governments; provincial, territorial and federal governments; and the roles of civil society and non-political, yet indigenous-owned and operated, entities such as friendship centres. What we find in the urban spaces is that often these jurisdictions will overlap, and unless there's collaboration and coordination on how those jurisdictions will overlap within the urban spaces, we worry that children are going to be either left out or be subject to the cases that led to the unfortunate situation with Jordan's principle.

Stable funding commitments and mechanisms are needed to ensure that the implementation of this act will be possible for communities. Furthermore, those funding provisions should take into consideration the work that will be required following the passing of this act, which will include education, stakeholder engagement and advocacy, which also could include data collection.

Capacity dollars should be considered as communities will need to work towards building capacity if they are to assume jurisdiction over services and resources to support partnership development and engagement with stakeholders.

Bill C-92 contains no mandate for data collection. As the representative organization of friendship centres, the NAFC knows the value of data and how it can inform and guide effective programming and services, which results in better outcomes for the people that friendship centres serve. Data collection is a tool necessary for the improvement of services and for identifying gaps that need to be addressed. Without a specific mandate to collect data, Bill C-92 may inadvertently promote the current data status quo, which is lack of in-depth national data regarding indigenous child and family welfare. This was an experience that we found in the Indian Child Welfare Act. Although there were provisions for data collection, they weren't adequately funded and supported, which has led to a lack of data despite almost 40 years of the existence of the act.

We thank you again for the opportunity to provide comments and perspectives on this bill; we trust our submissions will inform your work. We look forward to any questions.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you so much.

We now move to Pam Palmater, Chair in Indigenous Governance, Department of Politics & Public Administration at Ryerson University.

Welcome to our committee again, Pam.

[Dr. Pamela D. Palmater, Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual]

Hello. Thanks for having me.

Kwe, ni'n teluisi Pam Palmater.

I am from the sovereign Mi'kmaq nation on unceded Mi'kmaq territory. I have been a practising lawyer for 20 years, 10 of which were spent at Justice Canada and Indian Affairs, where I received all the training in the legislative process, statutory interpretation and legislative drafting. I also have my doctorate in law on legislation that impacts indigenous people, so I have a very particular focus here, and it's very legislative, as opposed to policy-based.

I'm here to speak against Bill C-92 as it is currently drafted. I think that without substantive amendments it risks interjurisdictional chaos, legal chaos and chaos on and off reserve. In addition, of course, it won't do anything to address the humanitarian crisis.

I have several core problems with it. One is the same problem I have with Bill C-91 and Bill C-97, which is that they are pan-aboriginal legislation. By being pan-aboriginal, in fact, it discriminates against first nations because it doesn't focus on first nations' specific rights, our unique histories, our unique socio-economic conditions or our specific interests. To my mind, first nation rights should never be limited by the different legal, political and social statuses of other groups.

For example, the Métis do not suffer the same acute socio-economic conditions that first nations do. That's just a fact. We also know that in Canadian law, when you treat everyone formally the same, you end up treating the most disadvantaged unequally. What we're advocating is substantive equality that is first nations-specific, so first nations-specific legislation and not formal equality.

The other concern is that there is no independent recognition or status for first nations laws that make them paramount. They are only considered to be a federal law, no different from a bylaw under the Indian Act. For anyone who has ever worked with first nations or at Justice Canada or Indian Affairs, it is nearly impossible to get the RCMP or anyone else to enforce Indian Act bylaws.

Right now, under this legislation, instead of being paramount, first nation laws are conditional or subject to the provisions of the Charter; the Canadian Human Rights Act; section 35 of the Constitution Act; all of the limiting Supreme Court of Canada cases; the division of powers under section 91(24); coordination agreements and all of the interpretations that courts would give to those coordination agreements—of which there could be upwards of 634—and failure to abide; pre-existing provincial court definitions of “best interests of the child”, which I have to remind everyone here are court-defined and open to the same amount of racism and abuse that's already been shown in the courts against first nations children; and, of course, clauses 10 to 15 of Bill C-92 itself.

Those are a lot of things that trump first nations laws, and that's a problem. There has to be a discussion that is not only about recognizing first nations jurisdiction in and of itself but also about issues around paramountcy of laws and how these jurisdictions will work together.

My other concern is that it forces first nations to negotiate agreements with federal and provincial government, when provincial governments are the problem. The federal government is the problem in the sense of discriminatory, chronic underfunding. The Canadian Human Rights Tribunal has already talked about that. However, it's the provinces that have allowed these human rights abuses to continue despite the research and despite all of the evidence. The last people many first nations want to work with are the provinces, which commit the abuses. To actually force that is to reinforce this horrendous humanitarian crisis, and that is something that I think many first nations have already testified to being rightly against.

The biggest thing, I guess, is that despite being sold as committing funding to first nations, there's no statutory commitment for funding. It is one thing to acknowledge in a “whereas” clause that there are calls for funding, that in principle maybe we'll talk about funding or we'll figure out ways to talk about it. However, there is no statutory commitment saying the minister will fund first nations for all of the services and actually define what those services are—and leave it flexible enough.

There are no guidelines around how that funding would be provided such as population, demographics, birth rates, actual costs, first nations rights around this, which are very different from Métis and Inuit rights. There's nothing that makes Jordan's principle mandatory in this legislation, and that should, in fact, be a core part of the legislation. It's certainly a core part of the Canadian Human Rights Tribunal. There's no commitment to address the underlying root causes of child apprehension, which for first nations specifically tend to mostly be socio-economic conditions. It's not just good enough to fund aftercare or parental programs if you're not also saying we will also make a commitment to housing, food, water, education and access to health care, which are all the reasons why most of these kids are taken away to begin with.

Another core legislative problem is that the minister retains all of the powers under the act, including the power to make regulations. There's only a requirement to consult with indigenous groups, and we all know how poorly consultation works in practice. We've been subject to hundreds of court cases because the federal government still doesn't understand how to actually consult, accommodate and get consent, because all of those things work together as a package. Now with UNDRIP, the United Nations Declaration on the Rights of Indigenous Peoples, we're talking about free, prior and informed consent. This bill is the opposite of that. It's basically saying we'll talk to you but we get to do all of the regulations, and it's in the regulations where a lot more damage can be done, a lot more control can be had. Or there can be no regulations at all, because we've seen ministers promise, “we're just going to do this act and we'll solve all the problems in regulations” and, hello, no regulations. We're just going on past practice.

The global pan-indigenous consultations also skew what should be in the regulations. What is good for first nations may have nothing to do with Métis, so why would Métis have a voice in what kind of regulations will apply to first nations and vice versa? That's part of the legal problem with the pan-indigenous nature. By empowering one entity, that is, by empowering the minister throughout all of the sections of this legislation, you are in essence disempowering another. Whatever power the minister has, that's something that first nations don't have, and that's a real problem.

I do find it really disturbing that in all of this legislation, knowing how closely related forced and coerced sterilization is to child apprehensions and how they've been linked, there is no provision in here that specifically prohibits the use of forced or coerced sterilizations in any child and family services situation, especially with regard to child care

There are lots of other issue around wording. There should be a discussion about jurisdiction over off-reserve, issues around data collection, but my specific suggested amendments are that if you're going to do legislation for those first nations that consent, it needs to be specific first nations legislation whether you're talking about languages or child and family services. Only first nations are under the Indian Act. First nations have an entirely different set of rights and laws, and you cannot put them all together.

There needs to be, if there is legislation, fully funded opt-out provisions so that first nations that are already engaged with child and family services don't have to be a part of this legislation, that their choice isn't just status quo or nothing, that a fully funded alternative means if we're not funding you under this process, we will fund you under your own process.

There needs to be targeted and committed funding specifically for first nations that is based on population, inflation, costs and needs. The first nations inherent right to be self-determining over child and family services must be recognized in their own right, not attached to section 35, not attached to UNDRIP, not attached to anything external. The inherent pre-existing right needs to be the foundation of any legislation going forward.

I would also add that if you want to give real effect to this, repeal section 88 of the Indian Act to oust provincial jurisdiction over first nations altogether.

My last recommendations specifically reference UNDRIP and all of the provisions, and specifically reference the United Nations Convention on the Rights of the Child, and say that this bill should not pass as is. It needs at a minimum comprehensive review with first nations experts, including people like Dr. Cindy Blackstock, who has extensive amendments to make, and organizations like the National Association of Friendship Centres.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you, Pam. I appreciate your presentation.

Now we're moving to the presentation from Joshua Ferland, who has come without much notice but we really appreciate it. He has an accompanying adult, Patricia Ann Horsley.

Welcome to our committee. You can begin anytime you're ready, Josh.

[Joshua Ferland, As an Individual]

Hello, my name is Josh Ferland. I was born in Winnipeg, where I still live. I'm proud to be here today to talk about Bill C-92, and to share my experiences and hopes for the bill. Thank you for having me and allowing me to share my thoughts. I hope that my voice will make a difference for young people.

I was once a child in care. I understand this is the first time the federal government has entered child welfare in such a big way. I am in favour of Bill C-92 because I'm Métis, and this is the first time Métis people will get support and funding from the federal government for child welfare.

Having grown up in care, I believe it's important to have better supports for youth in all stages of their development as well as supports that will help them achieve long-term goals. What I would have preferred over group-home living was to have found a long-term foster home much earlier than I did. They took me in and treated me as their own. They taught me skills and values that serve me well as an adult: the importance of working hard, developing a good work ethic, to be respectful and considerate of all people, the importance of giving back. In spite of why I was there, I'm thankful to my foster family for their love and acceptance.

I'd like to talk about some of the other supports I've had in my life. I'm thankful to the Manitoba Métis Federation, which funds the Metis Child and Family Services Authority, for having a Métis spirit worker. They have helped me as I transitioned out of care. I know from my own experience that there's not a lot of support for young people who age out of care. That's why having funding for programs such as this is so important. The Métis spirit worker told me about job training the MMF was providing. She helped me sign up and get ready, and even drove me to the training site an hour and a half out of the city of Winnipeg. I'll continue to work with Rhiannon Lynch as long as I can. This program ends support to youth after the age of 25.

I believe these types of programs are essential and should be a priority for helping young adults. Through my training, I earned several certifications that led me to a great opportunity. I still had to figure out a few more things before the job became a reality. The job was an hour and a half out of town and I had no way to get there. I don't have a car and there are no buses that go out there. I didn't have a place to stay or any money for rent. There is no startup funding available for youth like me. It's crazy to think how many thousands and thousands of dollars were spent on my 12 years in care. And then, when I finally got to a place where I could start to pay my own way, I just needed a few hundred dollars to start working, but there was no help. I just needed enough to get to my first paycheque. I was so close.

I'm telling you this because sometimes it isn't the big things that kill our dreams—it's the little things. This is something that I would like people to remember as you decide what can happen as a result of this bill.

I was lucky that I had people in my life who were willing to go above and beyond what they had to do. My Métis spirit worker fundraised for me, and collected and donated gift cards. Pat Horsley from the Métis agency, who is here with me today, drove me out to my job and arranged accommodations for me until I got my first paycheque. Pat contacted the MMF and the Metis Community Liaison Department, and they donated a gift card so I could buy food. Even though they don't get provincial funding to help youth after they leave care, the Metis Child and Family Services Authority pitched in so I could get started. I'm so glad they found a way to make it work.

I was so thankful they put me ahead of a system that seems so clunky.

As kids in care, we feel like we hear lots of “no's”, and much of what happens to us is out of our control.

I hope the new bill will give new hope that we can do things differently going forward. It has the potential to have more positive outcomes for our current youth in care.

Thank you for listening. I am honoured to have this opportunity.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you, Josh. Those are very important words.

Now we're going to move to questions from the members of Parliament. You can just take your time and be as honest and open as you can.

We're going to start with MP Robert-Falcon Ouellette.

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

Thank you very much.

[Member spoke in Cree]

[English]

Thank you very much, Josh, Jocelyn and Pamela.

Josh, with the number of children you saw in care, were they all receiving the appropriate services? Do we need to try something different?

[Joshua Ferland]

Yes. Support more funding for proper programming, like the Métis spirit program, which helps kids up until they are 25. It also helps them with employment, finding jobs, finding homes to stay in, and stuff like that.

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

Is 18 a good cut-off age for support?

[Joshua Ferland]

I think it should be at least until you're 26.

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

Why 26?

[Joshua Ferland]

I feel like you should help people where they're at, not where people think they should be at.

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

Okay.

Jocelyn, could you talk a little bit about the cultural competency programming you do in the friendship centres, what that entails for families and how widely available it is across Canada in all the friendship centres?

[Jocelyn Formsma]

We have a network of 112 member friendship centres, which also includes our provincial and territorial associations. To say that any one of them does the same thing.... Friendship centres provide a wide and vast array of programs and services.

The cultural competency programming was when we did our outreach that came back from the Under One Sky Friendship Centre in New Brunswick.

Also, other friendship centres provide a lot of different types of programming. Some of them provide the I Am a Kind Man program, which is an anti-violence program for men.

I've heard of situations where a friendship centre heard about a family that was at risk of being broken apart and they a created a program over a weekend so that they could go and tell the CAS worker that they had a plan and a program for them.