Bill C-92 is Long Overdue

Bill C-92 is long overdue recognition of Indigenous right of self-government in child and family services

After much anticipation, on Thursday, February 28, 2019 the federal government introduced Bill C-92 in the House of Commons. Bill C-92, An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, finally recognizes Indigenous peoples’ inherent right of self-government in the area of child and family services.  If adopted, this Bill will acknowledge Indigenous governments’ power to adopt their own laws to regulate child and family services within their Nations.

Indigenous peoples have long been fighting for the right to establish their own laws and programs regarding children and youth in need of care and protection.  The existing approach was for Canada to fund the provinces to implement and administer provincial laws and programs in Indigenous communities.  Unfortunately, funding has been woefully insufficient compared to the levels of funding in non-Indigenous communities, and the provincial programs have done little to protect Indigenous children and youth.  The result has been a system that is taking Indigenous children and youth away from their culture, language, family and heritage at rates far greater than other communities in Canada.  In far too many cases, these young people are permanently removed from their homes, communities, language and culture.

The underlying objective of this Bill is to reduce the over-representation of Indigenous children and youth in provincial child and family services and to keep them within their own communities and culture.  The main way to accomplish this goal is by recognizing Indigenous law-making power.  The Bill  affirms  the jurisdiction of Indigenous groups to make laws in relation to child and family services as an inherent right of self-government under section 35 Constitution Act 1982.  Recognizing the inherent right of Indigenous peoples to make laws and look after the welfare of their children is long overdue and fundamental to self-government and well-being in   Indigenous communities.

Under the Bill, when an Indigenous group intends to exercise its lawmaking powers, it may notify Canada and the province in which its located.  The Bill also allows the Indigenous government to negotiate a coordination agreement with Canada and the relevant province(s). However, this is not mandatory for the Indigenous government before it can exercise its section 35 Constitution Act 1982 lawmaking powers recognized under the Bill.  If the Indigenous group does negotiate a coordination agreement, or has made reasonable attempts to negotiate such an agreement over the course of one year, the Indigenous community’s law will have the additional force of law as federal law.

Equally significant is the Bill’s assumption that, when making decisions regarding a child’s care, it is in the best interests of an Indigenous child to be connected to their culture, family and community and “cultural continuity” is an essential factor.  Cultural continuity recognizes that languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples must be transmitted to the child and that the child’s well-being is often promoted if they stay with members of their family.  The child’s culture and Indigenous heritage must be respected.  Importantly, the Bill also recognizes that a child cannot be taken from their parents solely because of poverty, which has often been the case in past.

What is uncertain is whether Canada will finally provide sufficient funding to implement this Bill and to allow Indigenous governments to build the laws and programs required to take control over this integral area of self-government.  Within the Bill there is mention of substantive equality in relation to funding, but there are not specifics regarding actual funding levels.

The Assembly of First Nations, the Métis National Council and the Inuit Tapiriit Kanatami were all present and supportive of the Bill at the press release on February 28, 2019 after the Bill was introduced in Parliament.  What remains unknown is whether the Bill will make it past the legislative process within the House and the Senate before the federal election in October 2019.

Micha Menczer