Law aims to affirm Indigenous rights
Lawyers are closely monitoring a new child welfare framework that came into effect on Jan. 1, which will likely have the biggest impact on clients with Indigenous backgrounds.
Bill C-92, which received assent in June 2019, “affirms the rights and jurisdiction of Indigenous peoples in relation to child and family services.” The law allows for an Indigenous governing body to exercise legislative authority over safety, fiscal support and rights for Indigenous children, by way of a coordination agreement with the government.
Given that many aspects of child welfare were previously executed at the provincial level, the implementation of the bill will mark a shift, notes Judith Rae, a partner at Olthuis Kleer Townshend LLP.
“This brings in a lot of change. The first change is that there are new federal rules taking effect January 1,” she says.
“Any entities — government, child welfare agencies, Indigenous peoples and others involved in the child welfare sector — they are going to be looking to lawyers to get advice on those federal rules, compare them to the existing provincial rules, and take a close look at what needs to be done differently right away.”
Within the new regime, the government is setting out to acknowledge “the legacy of residential schools and the harm, including intergenerational trauma,” as well as “the disruption that Indigenous women and girls have experienced in their lives in relation to child and family services systems” and “the right to self-determination of Indigenous peoples, including the inherent right of self-government.”
“It asks lawyers to be open minded, creative, flexible . . . . when giving advice to building that change,” says Rae. “And this is a sector that is overdue for a change in direction.”
Even with the new bill now in effect, it remains unclear how some of the new framework will be implemented, says Rae, who notes that the language of Bill C-92 was somewhat vague, partly to complement language used across all the provinces, territories and First Nations.
“As Canadian lawyers we bring a pretty strong familiarity with federalism, and the possibility for overlap between jurisdictions and the multiple layers of laws that apply. We have a strong legal framework for dealing with that in our jurisprudence,” says Rae. “There's hope out there that those changes will be positive.”
One particular focus of the Bill is what factors should be used to “determine the best interests of an Indigenous child.” The Yellowhead Institute, a First Nation-led think tank, suggests that Indigenous communities should define what “best interests of the child” means in the context of their visions of child welfare jurisdiction.
“’Best interest of the child’ is this kind of famously fuzzy concept,” she says. “Deep cultural values [go] into that . . . . I know some First Nations, some Indigenous peoples are against the term altogether, because it's been applied in such a colonial, oppressive way. And some are comfortable with the term.”
Rae says it’s possible that as of the new year, cases already within the system will be impacted by the Bill C-92 framework. However, it’s yet to be seen how the courts, or any forthcoming regulations, will implement aspects of the law.
“There hasn't been very much federal outreach on the implementation of the law, given the timing . . . . most of that period was an election period,” says Rae of the bill’s implementation over the past six months. “I would urge lawyers out there who are involved in the sector to be proactive with your clients about it, make sure they're aware of it.”
Lawyer Sarah Clarke says it will be important for lawyers to get up to speed.
“I think the most challenging thing for lawyers is going to be when either the coordination agreements come into effect, or the sunset clause sets, and communities are adjudicating their own laws,” says Clarke.
“That is going to be procedurally complicated. It's going to be extremely exciting. It’s going to be something to be celebrated. And it's also going to be logistically complex. And we don't know exactly what it's going to look like, or how that's how it's all going to fit together. And for lawyers who practice in this area, I think just being alive to the fact that this is coming is really, really important.”