INTRODUCTION TO BILL C-92

A significant feature of the colonization of Indigenous peoples has been the treatment of Indigenous children in care. The history of Canada’s residential schools, day schools, and the Sixties Scoop are known to many. However, the injustice with respect to children and families continues to persist today, as Indigenous children are over-represented and systems of care are severely underfunded. Moreover, such systems fail to recognize the cultural and community aspects of caring for Indigenous children.

In response, the first five Calls to Action by the Truth and Reconciliation Commission pertain to child welfare, including Call to Action 4 – to “Affirm the right of Aboriginal governments to establish and maintain their own child-welfare agencies.” Similarly, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), now in force in Canada, calls for “recognizing the right of Indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child”.

On June 21, 2019, Bill C-92: An Act respecting First Nations, Inuit and Metis children, Youth and Families (“Bill C-92”) received Royal Assent and became enshrined into law. This is the first piece of federal legislation to recognize the constitutional Indigenous right to jurisdiction over child and family services. While not without its problems, the Bill marks a tremendous advancement towards self-determination for Indigenous peoples.

There are two parts to Bill C-92. The first provides for national minimum standards, which apply to any child and family services legislation across the country. The second part, which is of far more significance, allows Indigenous communities and groups to develop their own policies and laws based on their own inherent laws, values, and cultures. Once developed, they may exercise partial or full jurisdiction over child and family services, with the Indigenous policies and laws taking precedence over federal and provincial family services laws.
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‍PART 1
NATIONAL MINIMUM STANDARDS

The national minimum standards established by Bill C-92 apply to Indigenous children Canada-wide. Provincial laws concerning child and family services continue to apply. However, to the extent that provincial laws are inconsistent with these national standards, the national standards will apply. Moreover, many of the minimum standards are not contained in current provincial child and family services laws. Therefore, we must look towards Bill C-92 when developing Indigenous laws and policies, rather than provincial legislation, keeping in mind that Indigenous child and family services laws may influence the interpretation of the national standards.

The national minimum standards are found under four headings:
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1. Purpose and Principles
2. Best Interests of Indigenous Child
3. Provision of Child and Family Services
4. Placement of Indigenous Child

1. Purpose and Principles
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Cultural continuity

‍Section 9(2) provides that Bill C-92 is to be interpreted in accordance with the principle of cultural continuity, as it is essential to the well-being of a child, family, and community. Cultural continuity involves consideration of the transmission of the language, traditions, customs, and knowledge of Indigenous peoples. Child and family services are not to contribute to the assimilation or destruction of an Indigenous community or people. This involves consideration of the characteristics and challenges of the region in which an Indigenous child, family, and community are located. Thus, service providers involved in child protection matters must consider the child’s access to their traditional lands and community supports. They must also ensure that the community is involved early on in the matter.

‍Substantive equality

‍Section 9(3) provides that Bill C-92 is to be interpreted in accordance with the principles of substantive equality. The rights and needs of a child with a disability are to be considered in order to promote participation, to the same extent as other children, in family and community activities. Children, their family members, and their Indigenous governing body must be able to exercise their rights under Bill C-92, including their right to have their views and preferences considered in decisions that affect them, without discrimination. Further, a jurisdictional dispute must not result in a gap in child and family services. Here, we see again that an Indigenous community must be involved early on in any child protection matters.

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2. Best interests of Indigenous Child

The best interests of a child is not a new concept and is a principle already contained in provincial child and family services legislation. However, Bill C-92 treats this concept differently and provides several factors to consider in the context of the Indigenous child.

Pursuant to section 10(1), the best interests of the Indigenous child must be the primary consideration when providing child and family services and, in cases related to child apprehension, the best interests of the child must be the paramount consideration. As such, the national minimum standards provided in Bill C-92 are subject to the best interests of the child.

Primary consideration must be given to a child’s physical, emotional and psychological safety, security and well-being, as well as the importance for the particular child of having an ongoing relationship with his or her family and Indigenous community and preserving the child’s connections to his or her culture (section 10(2)). Section 10(3) provides several factors to consider when determining the best interests of the Indigenous child. These include:
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1. the child’s cultural, linguistic, and spiritual heritage;
2. the child’s needs, stage of development, and need for stability;
3. the nature and strength of the child’s relationship with his or her parent, care provider, and family members who play an important role in his or her life;
4. preserving the child’s cultural identity and connections to the language and territory to which he or she belongs;
5. the child’s views and preferences, giving weight to the child’s age and maturity;
6. plans for the child’s care in accordance with the customs or traditions of his or her Indigenous community or group;
7. any family violence and its impacts on the child; and
8. and any court proceedings relevant to the safety, security, and well-being of the child.

3. Provision of Child and Family Services
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Notice requirements

‍Pursuant to section 12 of Bill C-92, any service provider must provide notice to the child’s parent and care provider, as well as the relevant Indigenous governing body before taking any significant measure in relation to the child.

‍Representations and party status

‍Section 13 provides that the child’s parent and care provider, as well as the Indigenous governing body, have a right to participate in any proceedings regarding child and family services.

‍Preventive and pre-natal care

‍Pursuant to section 14, preventive care to support the child’s family is to be given priority over other services. To the extent that prenatal services promotes preventive care to support the child’s family, such services are to be given priority over other services.

‍Socio-economic conditions and residence of the child

‍Section 15 provides that the child must not be apprehended solely on the basis of his or her socio-economic conditions, including poverty, lack of adequate housing or infrastructure or the state of health of his or her parent or care provider.

4. Placement of the Indigenous Child
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Priority

‍Section 16 of Bill C-92 provides that the placement of an Indigenous child is to occur in the following order of priority:

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, community or people as the child;
4. with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or
5. with any other adult.

Placement with or near other children, customs and traditions

‍Section 16(2) provides that as the order of priority is being applied, the possibility of placing with or near children who have the same parent or are otherwise members of the child’s family must be considered when determining whether the placement is in the best interests of the child. Further, the placement of the child must take into account the customs and traditions of his Indigenous heritage, such as customary adoption.

‍Family unity

‍Pursuant to subsection (3), there must be a re-assessment on an ongoing basis of whether it is appropriate to place the child with

1. one of the child’s parents if the child does not reside with such a person; or
2. another adult member of the child’s family if the child does not reside with such a person and unless the child resides with his or her parent(s).

Attachment and emotional ties

‍If a child is not placed with his or her parents or other adult family members, then the child’s attachment and emotional ties to such family members are to be promoted, subject as always to the best interests of the child.
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PART 2
INDIGENOUS JURISDICTION OVER CHILD AND FAMILY SERVICES

Affirmation of the Inherent Right of Jurisdiction

‍Bill C-92 affirms the inherent right of jurisdiction over child and family services. The Preamble to Bill C-92 notes that Parliament affirms the right to self-determination of Indigenous peoples, including the inherent right to self-government, “which includes jurisdiction in relation to child and family services”. Similarly, section 8(a) states that among the purposes of Bill C-92 is to “affirm the inherent right to self-government, which includes jurisdiction in relation to child and family services”.

Section 18 of Bill C-92 states that the inherent right of self-government recognized and affirmed in section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority. Further, this authority includes the authority to provide for dispute resolution mechanisms.

Steps to Take to Exercise Jurisdiction
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The first step to exercising jurisdiction over child and family services is for the Nation to identify who the Indigenous governing body is. Bill C-92 purposely defines the term “Indigenous governing body” broadly (see section 1 – Definitions):

‍Indigenous governing body means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.

Thus, the governing body could be an Indian Act Band, an Indigenous form of governance, such as clan-based chiefs or matriarchs, an entity with delegated authority, etc. The Indigenous governing body could also be one or more communities; it could be an entire Nation or one or more Bands within a Nation. This decision should be made clear at the outset and any professionals involved in assisting the Indigenous governing body to exercise its legislative authority must be clear as to who their client is.

‍Second, pursuant to section 20(1), an Indigenous governing body who wishes to exercise its legislative authority over child and family services, may give notice of that intention to the federal Minister of Indigenous Services (the “Minister”) and the government of the province where the Indigenous governing body is located (the “Province”).

‍Third, after notice is provided, the Indigenous governing body may request that the Minister and the Province enter into a “coordination agreement” in relation to the exercise of legislative authority (section 20(2)). The main purpose of this agreement is to negotiate funding arrangements.

It should be noted that Bill C-92 specifically uses the words “may” with respect to the notice of intention and the coordination agreement. This is a reflection of the fact that jurisdiction over child and family services is an inherent right, rather than something given to an Indigenous peoples by a Canadian government. As such, Indigenous governing bodies are under no obligation to give notice or enter into a coordination agreement. However, practically speaking, if one does without these communications, it may be difficult to negotiate funding arrangements or determine to what extent the Indigenous law will interact together with or alongside Canadian law, especially in the case of a Nation less capable of obtaining funding from the federal government. Thus, Treaty Nations with strong negotiating powers who are able to obtain funding through their Treaty relationships may see less need for the notice and coordination agreement provisions.

‍Fourth, the Indigenous governing body adopts its Indigenous child and family services law. Pursuant to section 20(3), if the Indigenous governing body has entered into a coordination agreement or has made reasonable efforts to do so during a period of one year in which the request for a coordination agreement was made, then the Indigenous law will have the force of federal law (as per section 21(1)). Pursuant to section 22(1) and (3), to  the extent there is a conflict or inconsistency between the Indigenous law and federal or provincial law, the Indigenous law will prevail to the extent of the conflict or inconsistency with the exception of any conflict with the Canadian Human Rights Act and sections 10-15 of Bill C-92 (see sections 22 and 23).

In adopting their own Indigenous laws, Indigenous governing bodies are able to radically depart from the models found in provincial laws. They may return to their own traditional laws concerning children, youth, and families, but may also create a new model that incorporates experience from elsewhere around the world. Various Indigenous groups may also want to coordinate their Indigenous laws with neighboring Indigenous jurisdictions as in the case where a child has parents from more than one Nation.

‍SHORTFALLS OF BILL C-92

‍A number of shortcomings of Bill C-92 are easily discernible, despite its laudable goals. The most significant of these concern the incomplete recognition and affirmation of the inherent right to jurisdiction, funding, and constitutional challenges from Provinces.

‍Incomplete recognition and affirmation of an inherent right

‍Bill C-92 recognizes and affirms that jurisdiction over child and family services is an inherent right. Recognition under Bill C-92 means that it has the force of a Canadian federal law and prevails over federal and provincial laws. However, this inherent right that pre-existed colonization, is now subject to or influenced by the constraints of federal law, with respect to the new minimum standards, and provincial law with respect to laws that do not conflict with the Indigenous law. This problem is especially apparent in the context of Treaty Nations. No Treaty ever ceded jurisdiction over children and families. Moreover, such Treaties were made prior to the provinces coming into existence. Therefore, it makes little sense as to why a Nation should be expected to negotiate anything at all with a Province.

‍Funding

‍Unfortunately, Bill C-92 falls short of guaranteeing funding. It, therefore, becomes important to interpret the provisions of Bill C-92 in a way that will allow for adequate funding through negotiations. To start, it does recognize the vital need for sustainable funding with respect to administering the Indigenous child and family services law. Thus, the Preamble states:
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And whereas 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;

Further, section 20(2)(c) provides that the coordination agreement will include:

(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 in order to secure long-term positive outcomes for Indigenous children, families and communities and to support the capacity of the Indigenous group, community or people to exercise the legislative authority effectively;

Without a guarantee of funding, it is possible that Indigenous law can be developed and implemented but then be starved with the resources required to survive. Further, there is a notable power imbalance when it comes to negotiating with Canada for funding. Given the history of inadequate funding for Indigenous children and family services, these are significant concerns.

‍Constitutional challenges to Bill C-92 from Provinces

‍So far, one Province, Quebec, has decided to challenge the constitutional validity of Bill C-92 with respect to the division of powers between the federal government and the Provinces, arguing that child and family services, according to section 92 of the Constitution Act, 1867, is within the exclusive jurisdiction of the Provinces. For its part, the federal government argued that laws respecting Indigenous peoples fall under the federal government’s exclusive jurisdiction, pursuant to section 91. In Reference to the Quebec Court of Appeal re An Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185 (CanLII), the Quebec Court of Appeal held that Bill C-92 was mostly constitutional except with respect to sections 21 and 22(3). This case will most likely be appealed and heard in the Supreme Court of Canada. However, the constitutional challenge may be repeated by other Provinces and shows that they may not be open to negotiating coordination agreements. This all causes uncertainty for Indigenous groups looking to rely on Bill C-92 in the meantime.

‍GOING WITHOUT BILL C-92

‍Due to the shortfalls of Bill C-92, some Indigenous governing bodies will wish to develop and exercise legislative authority without regard to Bill C-92. Thus, a Treaty Nation may negotiate funding based on its Treaty relationship with the Crown and ignore Provinces altogether. Nations may also avail themselves of other sources of federal funding. However, for other Nations, such negotiating power may be limited and they may choose the framework of Bill C-92. It is for each Indigenous governing body to decide for itself the correct path.

‍CHILD AND FAMILY SERVICES LAWYERS

‍DuMoulin Boskovich LLP has extensive experience in assisting First Nations and individuals with their legal needs. We are currently offering services to Indigenous groups in developing and exercising their legislative authority over child and family services, whether or not the Indigenous governing body chooses to follow the Bill C-92 framework. Typically, our services begin with developing a proposal for funding from the federal government to build capacity in preparation for exercising jurisdiction over child and family services.

The government of Canada has committed over $542 million over five years, starting in fiscal year 2020 to 2021, for capacity building. The maximum amount of funding for Indigenous governing bodies by Canada is currently as follows:
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Once this funding is obtained, we then work with our partners to provide a complete service offering to the Indigenous governing body. We provide everything needed, including child and family services program and policy development, law development, digital solutions for information and data management, liaising with other Indigenous communities on modalities, negotiating a coordination agreement, and liasing with Canada on funding agreements. Currently, the federal government has set aside $19.8 billion to fund Indigenous child welfare practice.

We would be pleased to speak with your Nation or Indigenous governing body about how we may assist you in developing and exercising legislative authority over child and family services.

About the author:
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Mark G. Carter is a lawyer at DuMoulin Boskovich LLP. He is passionate about the issue of Indigenous jurisdiction over child and family services. Several high profile members of his family have fought for decades for the rights of Indigenous peoples. In the 1960’s, Mark’s grandmother, Jean Frances Marguerite Carter, worked as the Assistant Director of the Vancouver Indian Centre (today the Vancouver Aboriginal Friendship Centre) alongside Chief Leonard George, then Director of the Vancouver Indian Centre. Together, they spearheaded the first movement to rescue Indigenous children who were taken by the government and placed into the child welfare system. They were successful in bringing many children home to their families and communities.

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