Quebec wants out of new federal Indigenous child welfare law, citing threat to provincial jurisdiction

The Quebec government's startling move Thursday to ask the province's Court of Appeal to rule on the constitutionality of a new federal law governing Indigenous child welfare is being slammed by First Nations leaders and child welfare experts who have been pressing for urgent improvements to the youth protection system.

Bill C-92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, is set to go into effect Jan. 1.

The legislation allows Indigenous groups to take over their own child welfare systems and prioritizes the placement of Indigenous children in care with members of their own extended families and Indigenous communities.

But the office of Quebec Justice Minister Sonia LeBel said the province believes the law "constitutes an appropriation of the exclusive jurisdiction of the provinces in matters of social services and youth protection."

LeBel said it "shares the objective of the federal law" to give Indigenous communities "greater autonomy in matters of youth protection," but it wants to do so through its own youth protection service.

'First Nations children ... likely to pay the price'

In a strongly worded news release, the Quebec and Labrador Regional Chief of the Assembly of First Nations, Ghislain Picard, called Quebec's move "shameful" and "unacceptable."

"Defending its so-called jurisdiction is one thing but doing it on the back of our children is another," said Picard. "The Legault government is well aware that the current child welfare system does not work for First Nations children."

This pride, this feeling of superiority of the province towards the First Nations has a name: colonialism.- AFNQL Chief Ghislain Picard

He pointed to the findings of the Viens Commission, a provincial inquiry led by retired Superior Court justice Jacques Viens, who concluded in his September report that it is "impossible to deny" Indigenous people in Quebec are victims of "systemic discrimination."

"The provincial superiority complex persists and threatens to severely compromise services to our children and our families, as well as the relationship between the province and First Nations," said Picard.

"This pride, this feeling of superiority of the province towards the First Nations has a name: colonialism."

Picard noted that Quebec has made similar arguments in other court cases, stating it "does not recognize the general right of autonomy of First Nations."

"This time, however, it is First Nations children who are likely to pay the price."

'Concerning and discouraging'

Derek Montour, president of the First Nations of Quebec and Labrador Health and Social Services Commission, said the province's decision is "concerning and discouraging."

"In my opinion, Quebec is stating that First Nations communities should not have the right to self-determination in the health and social services, in particular as it relates to child welfare because they are claiming this jurisdiction," Montour told CBC News via email.

Montour, a Kahnawake Mohawk, is also executive director of Kahnawake Shakotiia'takehnhas Community Services. The Mohawk territory aims to pass its own youth protection act, independent of the province.

Montour said many Indigenous communities have been looking to C-92 as a step in the right direction when it comes to the welfare of First Nations children.

"It is particularly concerning because Quebec has always stated they are not responsible for financial responsibility for First Nations," he said. He said the province offers limited services to Indigenous communities and "access to other services is challenging."

He said if Quebec wants First Nations in Quebec to exercise greater autonomy, this court challenge isn't a promising sign.

"They want to do this through their own legislation, such as article 37.5 of the Quebec Youth Protection Act, but it does not acknowledge that a First Nation community has that inherent right," said Montour.

Recommendation from TRC

The creation of federal child welfare legislation that establishes national standards for Indigenous child apprehension and custody cases was one of the recommendations put forward by the Truth and Reconciliation Commission.

Naiomi Metallic, a Mi'kmaw lawyer on the board of Ryerson University's Yellowhead Institute, said current provincial child welfare laws right across the country have had harmful effects.

"It's every province for themselves. We get a real patchwork of approaches, which to this point has led to the overrepresentation of Indigenous people in the child welfare system," said Metallic.

Provincial laws do not take into consideration First Nations' kinship relationships, she said, nor the impact of high levels of poverty on many First Nations reserves.

Bill C-92 is far from perfect, Metallic said, but provincial-federal jurisdictional issues are not among her concerns.

"There's a lot of critique around it, but I don't think one of its problems is that it's potentially unconstitutional on the basis of division of powers," she said.

In response to the move by Quebec, federal Indigenous Services Minister Marc Miller said his government plans to "let the process unfold as it will."

Miller said his focus remains on the "well-being of Indigenous children in the child and family services system."

"Remember that Indigenous children make up 7.7 per cent of children under 15 years old across the country, but 52 per cent of children in care of child and family services," he said. "This must change."