New child welfare law means Indigenous communities’ laws about child and family services will prevail over federal and provincial laws

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Federal Bill C-92, An Act Respecting First Nations, Inuit and Métis children, youth and families, received Royal Assent on National Indigenous Peoples Day – Friday, June 21, 2019.

This means that the Bill has been approved by the House of Commons and the Senate. The Bill is now law, but is not yet in force. It will come into force on a day to be named by the Governor General, on advice of the federal Cabinet. We will be monitoring for that date, so stay tuned.  

The new law recognizes the inherent jurisdiction of Indigenous groups, communities and peoples over child and family services, which includes prevention, early intervention, and child protection services.

Under the new law, Indigenous communities can recover, develop, and enforce their own laws about child and family services. They can then choose to exercise partial or full jurisdiction over child and family services, or to work towards exercising full jurisdiction over a period of time.

Importantly, the new law means that the federal and provincial governments now recognize that there are three levels of government exercising legislative authority in the area of child and family services: Indigenous communities, the federal government, and the provincial government. When an Indigenous community enforces its own laws over child and family services, the Indigenous community’s law will prevail over both federal and provincial laws. When a law “prevails” it means that when there is conflict between the Indigenous community’s law and a federal or provincial law, the Indigenous law applies and the other law doesn’t apply.

Seems straightforward. But it’s a little bit more complicated than that.

The Indigenous law still has to comply with the Charter, the Canadian Human Rights Act, and the national principles set out in the new Act that apply to providing child and family services to Indigenous children.

Some of the national principles set out in the Act include:

  • Best interests test: A best interests test that includes factors specific to Indigenous children. Like with provincial child welfare laws such as Ontario’s Child, Youth and Family Services Act, the child’s best interests is the primary consideration when an Indigenous community exercises jurisdiction over and makes decisions about a child.

  • Substantive equality: Child and family services provided to Indigenous children have to be provided in a way that promotes substantive equality between the child receiving the service and other children.

  • Notice: Parents, caregivers, and Indigenous governing bodies have to be given notice before service providers take any significant measures in relation to an Indigenous child.

  • Prevention over protection: Service providers have to give priority to prevention services over other services, including protection services.

  • No apprehensions because of poverty: Service providers cannot apprehend an Indigenous child solely because of socio-economic conditions like poverty, lack of adequate housing, infrastructure, or the parent’s or caregiver’s health.

If your community wants to exercise authority over child and family services and have the federal and provincial governments recognize and respect your laws, the new law sets out the steps for you to get there.

Generally, the steps are:

  1. First, your community gives notice to the federal and provincial governments that you intend to exercise legislative (i.e. law-making) authority over child and family services.

  2. Then, your community may request that the federal and provincial governments negotiate a “Coordination Agreement” with you. The Coordination Agreement would set out how the three governments will coordinate services, given your community’s decision to exercise authority over child and family services. The Coordination Agreement could address any number of things, including emergency services, measures to help Indigenous children exercise their rights, and, perhaps most importantly, fiscal arrangements, i.e. $$$.

  3. Finally, if your community finalizes a Coordination Agreement OR if your community makes reasonable efforts to finalize a Coordination Agreement during the one year after giving notice under Step #1, then your community’s law about child and family services prevails over federal and provincial laws. In this way, the Act recognizes that inherent jurisdiction over child welfare doesn’t (and can’t) come from a Coordination Agreement. However, you do have to make reasonable efforts to finalize a Coordination Agreement for your law to prevail over federal and provincial laws under the Act.

This new Act can’t take away from your treaty rights or from self-government agreements. So if your community has a treaty or a self-government agreement and there is a conflict between the treaty or self-government agreement and the Act, the treaty or the self-government agreement prevails.

Throughout fall 2019, we will be running information training sessions for communities interested in exercising inherent jurisdiction over child welfare. Our first session will be in Toronto on Wednesday, October 2, 2019.

Let us know if you’d like to join us then or are interested in details about further sessions, or have questions or concerns about the Act. You can contact us here.