An Overview of An Act respecting First Nation, Inuit and Metis children, youth and families

December 9, 2020

In Canada, child welfare (the term used to describe a set of government and private services designed to protect children and encourage family stability) has historically fallen under the control of the provinces and territories. Each province and territory has its own specific Act and regulations that direct specified entities to manage, control, and monitor child welfare services for that region. In Saskatchewan, The Child and Family Services Act is the applicable legislation. The actual entities that provide child protection in Saskatchewan are primarily the Ministry of Social Services and the First Nations Child and Family Services Agencies. Historically the federal Government of Canada has not played the leading role in the development or delivery of child services but has always played a supporting role for specific programs and initiatives.

Recently the child welfare process in Canada has undergone a significant evolutionary process in response to a range of social, cultural, political, and economic issues. This resulted in new legislation and the expansion and transformation of roles and responsibilities in specific areas of child protection. This article will look at certain aspects of this recent legislation.

Bill C-92 was first introduced to the Canadian parliament in February 2019 and was entitled An Act respecting First Nation, Inuit and Metis children, youth and families ("the Act"). Bill C-92 was co-developed with Indigenous, provincial, and territorial partners with the goal of recognizing and affirming the rights of Indigenous governments and organizations to exercise their jurisdiction over First Nation, Inuit and Metis child and family services. The drivers of this initiative were significant and numerous. These were brought into focus during a consultation process in 2018 and 2019 which included valuable input from First Nations, Inuit, and Metis leaders and experts as well as from numerous federal, provincial, and territorial governments, agencies and Indigenous organizations with a stake and interest in the undertaking. The objective was to ensure that Indigenous peoples could play a more significant role and provide their own solutions for their families and children, reduce the number of Indigenous children and youth in care, keep Indigenous youth connected to their culture, community and family roots and ensure the power to administer and direct these outcomes lay in the appropriate hands. Bill C-92 came into force on January 1, 2020.

As Bill C-92 is now in effect and governments, organizations, communities, and legal practitioners are applying this legislation, it may be helpful to review some of the foundational legal impacts of Bill C-92. Bill C-92 brings great value to Canada but with that value comes the potential for greater complexity for those who need to use, interpret, administer and implement the law as the transitions embodied in the Bill C-92 occur.

As of January 1, 2020, there are three components to child welfare legislation in Canada.

  1. There is, for the first time, a direct federal component (the Act);
  2. There is legislation that exists or may exist for each Indigenous group or community in Canada; and,
  3. There is the existing provincial and territorial legislation that has been long-standing in Canada.

The federal component, Bill C-92, serves as a set of national principles that oversee the continued evolution of the child welfare system for Indigenous peoples. Bill C-92 provides certain "minimum standards" for the provision of all family and child services for Indigenous people. It is not meant to preclude any greater protections that could exist in the legislation provided by the provinces\territories or Indigenous groups. Bill C-92 is not meant to be a detailed and all-inclusive description or template for all child welfare law in Canada. Much of the legal implementation and concrete detail resides in the other components. Bill C-92 also relates uniquely and directly to Indigenous peoples and does not focus on provincial/territorial law for non-Indigenous citizens of Canada. Bill C-92 provides a number of crucial legal definitions, processes, and principles that were deemed necessary by all involved to improve child and family services for Indigenous peoples, including:  

  • The affirmation of Indigenous jurisdiction over matters regarding their child and family services.
  • An overarching framework to be used by Indigenous groups and communities to emphasize and exercise their jurisdiction in these matters.
  • A declaration and the associated mandatory provisions that detail that the "best interests" of an Indigenous child must be the primary consideration in all decisions and actions as related to the care of that child. These provisions stipulate that all persons, entities and courts must strictly adhere to these provisions.
  • A defined "order of placement" to be used when determining the placement of an Indigenous child in support of the belief that a child should, when at all possible, stay with their families and communities and connections to their culture should be promoted.
  • The clear provision that "cultural continuity" should be a guiding principle in all matters related to child welfare including family, culture, community, language, customs, traditions and location.
  • The declaration that the principle of "substantive equality" must be used in the interpretation and administration of Bill C-92 as it relates to the child's rights, the family's rights, the Indigenous governing body's rights, and children with disabilities.
  • Outlines the manner in which family services are to be provided to an Indigenous child including their safety, security, well-being, culture, and family origins.

Section 20 of Bill C-92, entitled Coordination and Application, outlines the various pathways and procedures to be used by Indigenous governing bodies if they wish to exercise their jurisdiction over family and child services legislation for their specific group or community. The outlined processes are independently available to every Indigenous group or community's governing body and are time flexible. Bill C-92 discusses the notice and coordination agreements that can be undertaken between the Indigenous governing bodies, the Minister of Indigenous Services, and the province or territory where the group is located to move these efforts forward.

What is important to understand is that all parties involved with child and family services law in Canada that involves Indigenous peoples will need to follow the minimum standards established in Bill C-92. From a practical point of view, given that the preponderance of the actual detailed law resides in the provincial/territorial legislation, much of the daily functioning of the legislative system will remain similar but with some possible over-riding modifications. If an Indigenous group or community have not yet completed the process of adopting or establishing policies or law in this area then the same will apply - Bill C-92 will be in force, provincial/territorial legislation will apply, and all existing services and agencies will be continued as is for Indigenous children and youth.

Valuable information for this blog post on Bill C-92 came from the Act itself, various Government of Canada documents focused on explaining and clarifying the Act, and a broad range of responses by the Indigenous communities, legal practitioners and media involved in interpreting, implementing and using the provisions of the Act.

About the Author: 

Connor is an associate with the Regina office.

About McKercher LLP:

McKercher LLP is one of Saskatchewan's largest, most established law firms, with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have helped our firm to rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2019/20). Integrity, experience and capacity provide innovative solutions for our clients' diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.

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