For too long, Indigenous children have been over-represented in care, underfunded, and poorly served by Canada's child and family services regime, which, among other things, has failed to recognize the diverse cultures and traditions of Indigenous communities and has contributed to Canada's legacy of colonialism and assimilation.

Indeed, the history of Indigenous children in care stretches back to the dark chapters of residential schools, day schools, and the "sixties scoop," all of which have caused lasting damage to Indigenous peoples and communities and fostered deep distrust in the system. There has long been a critical need for a child and family services model that recognizes the key role of Indigenous culture and community in the life of an Indigenous child and that allows Indigenous communities to assume jurisdiction over the care of their own children in accordance with their own laws and traditions.

The new federal Indigenous child and family services legislation (sometimes referred to as Bill C-92, or An Act respecting First Nations, Inuit and Métis children, youth and families) (the "Act") came into force on January 1, 2020. The Act, while imperfect in many respects, seeks to address these longstanding problems with Indigenous child and family services in Canada and to implement Canada's obligations under UNDRIP, the United Nations Convention on the Rights of the Child, and the Truth and Reconciliation Commission Calls to Action.

The main feature of the Act is to provide Indigenous communities with a mechanism to exercise their inherent jurisdiction over the care of their own children and families in accordance with their own traditional laws and values. Importantly and at long last, it provides for that exercise of jurisdiction to be recognized by the federal government as federal law and given priority over provincial child and family services laws. The Act also sets out national "minimum standards" which apply to child and family services for Indigenous children.

Despite these laudable goals, the Act has some serious shortcomings, such as the failure to provide for guaranteed funding to actually implement Indigenous child and family services laws, the incomplete recognition of the inherent right Indigenous communities have to care for their own children in accordance with their own laws and traditions, and the use of the current law system in a way that creates a potential jurisdictional nightmare.

The National "Minimum standards"

As of January 1, 2020, federal "minimum standards" apply to the provision of all "child and family services" in relation to an "Indigenous" child nation-wide.

Because the minimum standards purport to set universal rules for the provision of child and family services to Indigenous children, they prevail over provincial child and family services laws where there is a conflict, to the extent of the conflict. These minimum standards also prevail over Indigenous laws relating to child and family services, except for rules concerning priority of placement (ss. 16-17).

In practical terms, this means that organizations providing child and family services to Indigenous children must comply with both the federal legislation as well as provincial CFS laws, unless they differ in a way that makes it impossible to comply with both at the same time, in which case the federal requirements would apply in that specific area.

The "minimum standards" set out in the Act include the following, in brief summary:

  • Best interests of the Indigenous child (s. 10): Best interests of the child is the primary consideration in decisions/actions re provision of child and family services. Primary consideration is given to the importance of the child's relationship with family and Indigenous group and preserving cultural connections.
  • Provision of child and family services (s. 11): Child and family services must take into account their child's needs, culture, allow the child to know his or her family origins, and promote substantive equality.
  • Notice requirements (s. 12) and representation and party status (s. 13): Service providers must give notice of any "significant measure" to the child's parent/care provider and Indigenous governing body. Both of these have a right to participate in any civil proceedings regarding provision of CFS services.
  • Priority to preventive and pre-natal care (s. 14): preventative and prenatal care are to be given priority over other services.
  • Socioeconomic conditions, reasonable efforts (s. 15): A child must not be apprehended solely on the basis of socio-economic conditions. Reasonable efforts must be made to have a child continue to reside with parents/family.
  • Placement of Indigenous child (ss. 16, 17): when placing Indigenous child, the following order of priority applies (unless contrary to the best interests of the child):
    1. With one of the child's parents;
    2. With another adult member of the child's family;
    3. With an adult who belongs to the same Indigenous group;
    4. With an adult who belongs to a different Indigenous group; or
    5. With any other adult.

Exercise of Jurisdiction by Indigenous communities

In order to exercise jurisdiction over child and family services in accordance with the Act, the Indigenous governing body representing the Indigenous group, community, or people must take the following steps:

  1. Provide notice of intent to exercise legislative authority to the Minister and Province where the Indigenous group is located;
  2. Request the Minister and Province to enter into a "coordination agreement", which includes a number of issues, including fiscal arrangements; and
  3. Draft and adopt an Indigenous child and family services law.

Once those steps are taken, the Indigenous law will have the force and effect of federal law when it comes into force, provided that the Indigenous group, community, or body has entered into a "coordination agreement," OR has made reasonable efforts to do so during the period of a year from its request for one.

Funding is supposed to be available to develop the law and exercise jurisdiction through the coordination agreement. Currently the specifics in this regard are unclear (one of the main criticisms of the Act), though Canada has recently established a joint financial table which may result in clearer policies on funding.

There are some pressing timing considerations for Indigenous communities that wish to exercise jurisdiction under the Act, all of which suggest that Indigenous communities will want to enter into the process to exercise jurisdiction under the Act sooner rather than later .

Firstly, as noted above, in order for an Indigenous law to receive the benefits of recognition under the Act, the Indigenous group, community, or body must provide a "notice of intent" to exercise legislative authority, at which point it will have one year to make "reasonable efforts" to enter into a coordination agreement. Thus, a delay of a year is likely from the point the notice of intent is accepted by the government (which has also purported to require certain technical "pre-conditions" to do so). Additionally, the funding necessary to actually develop and draft the Indigenous law will be delivered through the coordination agreement, which could lead to further delay.

Secondly, a queue of Indigenous communities seeking to assume jurisdiction over CFS matters appears to be forming. As the queue grows, limited government resources and funding could cause delay in the negotiation of coordination agreements and other necessary steps, and Indigenous communities are likely to be engaged on a first-come first-serve basis. Obviously the current pandemic situation, which has consumed much government attention and resources, will only exacerbate these timing issues.

For all of these reasons, Indigenous communities should, at the earliest opportunity, consider whether they want to enter into the process to exercise jurisdiction over their child and family services in accordance with the Act, and provide notice of intent to do so.

Gowling WLG's Indigenous Law group is currently working with several Indigenous governing bodies on this process, and would be pleased to answer any questions or discuss requirements in further detail.

Criticisms of the Act

Despite the laudable objectives described above, affirming child and family services jurisdiction for Indigenous communities and setting national child and family services standards for Indigenous children, the Act has a number of significant shortcomings:

1. No guaranteed funding.

The Act does not provide for guaranteed funding to actually develop and implement Indigenous child and family services laws.

Funding is merely mentioned in the preamble, in which "the Government of Canada acknowledges the ongoing call for funding for child and family services that is predictable, stable, sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families, and communities."

Beyond that, funding is mentioned as one of the items to be addressed by a coordination agreement at s. 20(2)(c) "fiscal arrangements relating to the provision of child and family services by the Indigenous governing body, that are sustainable, needs-based and consistent with the principle of substantive equality..."

This leaves funding to be determined at the discretion of Canada as part of the coordination agreement to be negotiated between the Indigenous governing body and Canada . As noted above, Canada does not have a strong record when it comes to funding Indigenous child and family services, so this is an issue of considerable importance. Without adequate funding, the recognition of jurisdiction would be an empty promise.

More recently, Canada, in an agreement with the AFN, has established a joint financial table which it is hoped will result in clearer policies on funding.

2. The Act is an incomplete recognition of the inherent right.

While the Act does make significant progress in recognizing the jurisdiction of Indigenous communities over the care of their own children and families, it does not go all the way.

In the first place, "full" recognition of an Indigenous child and family services law under the Act (which means it has the force of a federal law and in the event of a conflict or inconsistency, prevails over most federal laws and provincial laws) depends on the Indigenous child and family services law being accompanied by a "coordination agreement" (OR on the Indigenous governing body making reasonable efforts to do so during a period of one year).

And even where there is a "coordination agreement" (or reasonable efforts to obtain one), the child and family jurisdiction of Indigenous communities is made subject to the Act's "minimum standards" – meaning that the federal government continues to exercise a form of ultimate authority in regard to CFS matters, albeit in a fairly limited manner.

More significantly, provincial law continues to apply where it is not "in conflict" with the Indigenous law. As noted below, this could give rise to further difficulties.

3. Uses current law model in a way that creates a potential jurisdictional nightmare.

The Act imposes potentially up to 4 layers of laws on the implementation of child and family services for Indigenous children, with different and potentially conflicting rules. This is a recipe for conflict and confusion.

Firstly, the national "minimum standards" prescribed by the Act universally apply to Indigenous child and family services, whether administered through a provincial regime or under Indigenous laws.

Secondly, the existing provincial regimes apply to Indigenous child and family services within their respective provinces. In theory, this is the case whether or not the Indigenous community has adopted its own laws pursuant to the Act, since, even if the Indigenous community has done so, provincial law will continue to apply to the extent that it is not in conflict with the Indigenous law. The Act does not provide Indigenous communities with any option to "opt out" of the existing provincial regime (though in theory a comprehensive Indigenous law might "knock out" provincial jurisdiction).

Thirdly, where an Indigenous community has exercised jurisdiction pursuant to the Act, enacting its own Indigenous law and obtaining a coordination agreement (or making reasonable efforts to do so over a year), that law, as noted, would prevail over provincial laws and most federal laws. (Note as well that an Indigenous community could enact laws without going through the coordination agreement process, in which case the laws would not prevail).

Fourthly and finally, where an Indigenous child belongs to more than one Indigenous community, potentially two Indigenous laws could apply to that child (and in the case of conflict, it would have to be determined which law applies to that child pursuant to s. 24 of the Act, "stronger ties").

All of this of course opens the door to extraordinary complexity in the administration of Indigenous child and family services. The courts only have begun to grapple with these issues, and they will only become more complex as time goes on and Indigenous communities begin adopting their own laws.

Conclusion

The Act, for all its limitations, provides a pathway for Indigenous communities to resume the exercise of the jurisdiction they have always had over the welfare of their children and families, and, importantly, to give that exercise of jurisdiction the force of law within the Canadian legal system. The Act puts in place a number of "minimum standards" governing Indigenous child and family services in Canada, including by prioritizing an Indigenous child's culture and community in their care.

However, the Act is not without its defects and challenges. It remains to be seen whether and how adequate funding will be made available to actually realize the promise of the Act, and it remains to be seen how the complicated overlapping jurisdiction made possible by the Act will be dealt with as Indigenous communities assert jurisdiction and enact their own laws.

In any event, the Act already has very significant uptake, with many Indigenous communities having already given notice under the Act of their intent to exercise jurisdiction over the care of their own children. Interested Indigenous communities should act quickly to begin the process to ensure that they have access to the funding and resources necessary to move forward.