Indigenous child welfare bill 'path-breaking' on rights but funding still an issue, say child advocates

An Indigenous child welfare bill tabled Thursday by the federal Liberal government is potentially "path-breaking," but falls short in guaranteeing the funding needed to ensure Indigenous communities can exercise jurisdiction over children in care, according to advocates.

Mary Ellen Turpel-Lafond, the former British Columbia representative for children and youth, said Bill C-92 creates a path for Indigenous groups to assert jurisdiction while also creating space to ensure seamless delivery of service through possible agreements with Ottawa and the provinces.

"It is a meaty bill, it was long promised and it is very significant in that it takes some big strides forward," said Turpel-Lafond, who is director of the University of British Columbia's Indian Residential School History and Dialogue Centre.

Under the proposed law, an Indigenous group seeking to take over its child welfare system needs to notify Ottawa and the respective province to begin talks around a "co-ordination agreement."

If a deal can't be struck within 12 months following the request, then the laws of the Indigenous community would trump federal or provincial laws.

"This is a path-breaking bill on the self-determination and inherent right to self-government," said Turpel-Lafond.

"I think the jurisdiction is actually reasonable and I think it will be workable."

Turpel-Lafond said the bill also enshrines the need for Indigenous children to be heard within the child welfare system, which is a key element of the child-centric models preferred by Indigenous communities.

"When push comes to shove, kids are paramount," she said.

"That is going to take a sea change on the ground. Things are going to have to be built differently so that they are heard and have the right to be heard."

The bill also prioritizes placing an Indigenous child that is taken into care with their own family and Indigenous community.

Funding remains at whims of Ottawa

However, the bill falls short in ensuring Indigenous communities have the resources to implement their own child welfare systems, said Cindy Blackstock, who heads the First Nations Child and Family Caring Society.

While it mentions funding in the preamble, the bill fails to include statutory funding — legally required funding — for Indigenous child welfare.

Indigenous Services Minister Seamus O'Regan said in a news conference that funding was something that would be worked out as agreements get struck.

Blackstock said she believes the language around jurisdiction is unclear and needs a closer analysis. But without guaranteed funding, jurisdiction becomes a "paper tiger," she said.

As it stands now, funding for Indigenous child welfare is contingent on the policy decisions of whatever government is in power, she said.

Blackstock said linking funding to agreements could lead to some communities getting better deals than others.

"I don't want to be a 'Debbie Downer' on this, but I really think the affirmation of jurisdiction and the funding had to go together," said Blackstock.

"We don't know who will be taking power in November and First Nations children's safety, wellbeing and their right to their culture and language and to their families should not be subject to whoever is in power."

The proposed bill is an offshoot of a groundbreaking Canadian Human Rights Tribunal ruling from 2016 that found Ottawa discriminated against First Nations children by underfunding child welfare services on-reserve.

The ruling was triggered by a complaint led by Blackstock and the Assembly of First Nations (AFN).

Mary Teegee, who was a technical advisor on the AFN legislative working group involved in talks with Ottawa on the bill, said statutory funding has been a constant request from First Nations.

Teegee said there are concerns that gains in child welfare dollars made following the tribunal ruling could be lost unless the federal government was required by law to keep funding levels sustainable and equitable.  

"It is it a passable act? We need to be careful. I think our children deserve more than just passable," said Teegee, executive director of the Carrier Sekani Family Services in B.C.

"There should have been more concentration given to the funding, to breathe life into jurisdiction we already have," she said.

Bill could face opposition

The Assembly of First Nations Quebec-Labrador and the First Nations of Quebec and Labrador Health and Social Services Commission issued a joint statement calling the bill "a late, but clear, change of attitude on behalf of the federal government." They called on their provincial government to in turn "recognize the jurisdiction of the First Nations and engage with us."

Norman Yakeleya, Dene National Chief, said the bill is key to making changes to recognize the inherent right to self-determination.

"I say to the federal government it's about time," he said. "Have a belief that we can take care of our own children."

Association of Iroquois and Allied Indians Grand Chief Joel Abram said the lack of statutory funding in the bill could result in lack of support from his Ontario organization.

"That is going to potentially put a lot of liability and uncertainty onto First Nations if they do come up with laws or systems of child welfare — whether or not they will be funded going forward," said Abram.

Abram said the jurisdiction sections are also a bit "muddy" and need further analysis from the organization's lawyers.

"We don't know where we are going to land, if we are or aren't going to support it."

In Manitoba, where 90 per cent of the 11,000 children in care are Indigenous, the Assembly of Manitoba Chiefs (AMC) issued a statement rejecting the proposed bill on grounds it did not fully acknowledge First Nations jurisdiction.

"It does not meet the immediate need in addressing the humanitarian child welfare crisis in Manitoba," said AMC Grand Chief Arlen Dumas.