Evidence of meeting #150 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 services.
A recording is available from Parliament.
Liberal
Robert-Falcon Ouellette Liberal Winnipeg Centre, MB
How many non-indigenous foster parents use your programming, then, for the cultural competency to continue to maintain the cultural connection between children?
Executive Director, National Association of Friendship Centres
I would not have any idea of what those numbers are, because—
Liberal
Executive Director, National Association of Friendship Centres
I think so. Regardless of who has the jurisdiction, I think there are still going to be indigenous children in care. There are still going to be non-indigenous foster parents, and they're still going to drop their kids off at friendship centres to receive cultural programming. We don't have any data that captures any of that, at all.
We've captured some within one of the UAKN research reports. There is one specifically looking at cultural competency training for non-aboriginal.... I have it in here.
Executive Director, National Association of Friendship Centres
I'd have to look it up, but you can look on UAKN.org. You just look in “child services” or “child welfare”, and all of the research we have done in that area will come up on that website.
Liberal
Robert-Falcon Ouellette Liberal Winnipeg Centre, MB
Thank you very much.
I would like to talk about subclause 9(3) in the bill. That's on page 6.
This talks about substantive equality and the idea that children are supposed to receive the same level of services no matter where they are, especially 9(3)(e), which says:
in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children.
Now, this specifically doesn't mention Jordan's principle, but this bill itself is not just about health care; it's also about a wider range of services.
Pamela, I was wondering, in your estimation—and, obviously, I suspect you will say no—could you, as a lawyer, take the federal government to court if they didn't have or were not funding...? Let's say there was a change in government and the new government decided they did not wish to fund child welfare for whatever reason—and I understand the fear of indigenous peoples related to that. Would you be able to take the federal government to court and say that under this bill, they are supposed to have substantive equality and they're not funding this; there is a major difference between the level of services and this is a human rights case, so they need to fund that? Would you be able to take that to court using that clause?
Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual
You can make any kind of argument when you go to court. The thing is, you try to put your best arguments forward and hope they stick. However, there's a critical difference in legislative drafting between a “whereas” clause and a principle versus a substantive right.
When you say in the whereas “we want to provide funding to first nations”, that's very different than if you have a section in here that says “the minister shall provide” equitable funding to first nations or equal funding to first nations. That's part of the problem when you're doing legislative drafting. Any of the core commitments—rights that are judicable, that you can actually take to the bank, take to court and sue on, and have enforced and get injunctions and that kind of thing—have to actually be rights-based, not just in the fluff, because principles are, “well, you know, that was our general idea”, but there's nothing that outlines what is the mandatory way in which that would be interpreted.
It would be an argument, but not necessarily a successful one.
Liberal
Robert-Falcon Ouellette Liberal Winnipeg Centre, MB
There's no federal legislation surrounding CFS, yet the federal government was taken to court by the Child and Family Caring Society and lost on a number of occasions, and eventually the federal government did decide to find Jordan's principle a number of times. Obviously there is a case to be made that it would likely be successful again in this case, because you even have it actually more explicit than any other legislation. It's not just simply a motion in Parliament 10 years ago or 20 years ago under Jordan's principle. This is actual legislation, where it lays out substantive equality.
Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual
Fair point. However, you have to keep in mind how many non-compliance orders were issued after that decision by the Canadian Human Rights Tribunal—seven, I think—and they're still in court debating whether this is going to apply to all kids, especially under Jordan's principle.
Right now, the legal issue is the federal government not providing Jordan's principle funding to non-status Indian kids who should in fact be status but for the ongoing discrimination in Bill S-3.
You have multiple acts that are working together to disadvantage, so that would be hard.
Liberal
Robert-Falcon Ouellette Liberal Winnipeg Centre, MB
Some of those would be considered Métis children, so I think there are a lot of issues going on surrounding status—obviously. You're talking about how this is not distinctions-based but yet we negotiated—the federal government negotiated—with the first nations national organizations and did major consultations with the Métis and the Inuit organizations—
Liberal
The Chair Liberal MaryAnn Mihychuk
Thank you. We've run out of time. It might be picked up by MP Arnold Viersen.
Liberal
Robert-Falcon Ouellette Liberal Winnipeg Centre, MB
Thank you. It's just a really interesting aspect.
I'm kind of confused. You've come and given testimony that—I wrote it down—it's not distinctions-based, yet we had the Inuit who say it's distinctions-based. We had the Métis who say it's distinctions-based and the first nations that feel it's distinctions-based.
Also, then, we talk in the court cases about how we're trying to look at the Métis receiving services as well and whether they shouldn't, and then we now have Bill S-3. This is in flux. From a lot of the testimony we've heard, this is just a first step of where we're trying to go.
We heard lawyers, constitutional lawyers, previous to this. I can list off the names. I wrote down all their testimony here. Is this not just an ability to move in a way forward and trying to come up with a better path forward to give indigenous communities control? Even under clause 22, it says literally.... I'm sorry. It's clause 18 and then there's clause 22, which that says that all indigenous laws take precedence if there's a conflict. If there is an indigenous nation—Treaty No. 1 territory, Treaty No. 4 territory—that decides to pass legislation, then, under subclauses 22(1) and 22(3), their jurisdiction takes precedence over federal or provincial law. It's written right there.
Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual
I would love to respond to several things you've said.
The AFN, MNC and ITK had claimed that this was going to be co-drafted, and that's not how Justice Canada actually does legislation. There is no co-drafting of legislation. So then they changed the wording, admitted it wasn't co-drafting and said it was “co-developed”.
Co-developing with an organization is not actually co-developing or taking instruction from actual rights-holding first nations. I have heard the testimony both here and in the pre-study in the Senate. The Assembly of Manitoba Chiefs, which represents 63 first nations, is categorically against Bill C-92. They had protests against it on Friday. There's a coalition of first nations across the country that are doing national days of action against Bill C-92, including first nations from the Chiefs of Ontario and first nations from Alberta. All of this stuff is on the record. There is significant resistance, and there have been experts like Cindy Blackstock and others who have testified that there are big problems with this bill.
It's not how you presented it. You've kind of left out all of the people who are in opposition to it for rightful reasons, and you have to keep in mind that these so-called first nations laws that allegedly have paramountcy are federal laws. They're to be treated like federal laws, not first nations laws in and of themselves, subject to the charter of the Canadian Human Rights Act, section 35, division of powers, coordination agreements and clauses 10 to 15 of the bill.
You can't just read one section in isolation when you interpret legislation. You have to read it all and look at all of the provisions.
Liberal
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
Thanks.
Ms. Formsma, we've had this conversation quite a bit about the urban versus the first nations on reserve in particular. Never mind the Métis settlements and all that kind of stuff.
How do we put the friendship centres? Friendships centres are places where those distinctions disappear. I visited several of them across the country. How do we recognize in this particular bill the important work that friendship centres do, given that we give people standing at hearings and things like that? How would you see a place for the friendship centres?
Executive Director, National Association of Friendship Centres
A few things are already happening and there are some things to think about. Certainly we don't ever want to be viewed as holding up a rightful jurisdiction of government. As best we can, we intend to provide perspectives on how we see this bill rolling out. We have a few ways to look at it.
We certainly wouldn't look at it as urban versus.... It's the same people. We have a lot of people in the urban spaces; a lot of people who go back and forth. But then there's also a large community, especially in some of the larger cities, that are three or four generations in. That is their community. The distinctions don't disappear because when you are in those communities you certainly recognize the distinctions among yourselves. We don't want to say we are Cree, Mi'kmaq, Mohawk, list all the nations we collectively come from when we're in urban spaces.
We've seen some of this roll out as a floater space for friendship centres. They've got the connections with the indigenous peoples, sometimes formal partnerships with first nations or Métis organizations, depending on the friendship centre or the region they're in, sometimes having formal relationships with the mainstream children's aid societies.
In terms of the jurisdictions and the overlap and the rollout, it's hard to put forward a strong position because it comes down to what makes sense for that community and for that child and family. In some spaces the friendship centre is going to be part of that whole network. Then there are some communities in which the friendship centres might not make as much sense as a part of the full thing but provide a component. It's a bit of a non-answer to your question but I'm hoping this perspective from what we're experiencing helps.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
Would any friendship centres that you know of fall under the description of the indigenous governing body in this bill?
Executive Director, National Association of Friendship Centres
That's one of the questions we've had about the definition section because the piece there is—
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
Many of the friendship centres I've been to are often partnerships with a local community. They then run particular programs such as child and family services. I can read into this that you're authorized to act on behalf of an indigenous group.
Executive Director, National Association of Friendship Centres
Yes.
There are examples where first nations have authorized friendship centres to act in the band rep role, as in the party in legal.... There are cases where that specific instance would be authorized, but it's very explicit.
In other situations, a friendship centre, social worker, court worker attends court with a family. Does that mean they are authorized by that indigenous person or those people?