11,000 children caught in jurisdictional limbo

Opinion

Hey there, time traveller!
This article was published 03/01/2020 (1173 days ago), so information in it may no longer be current.

The new federal law titled An Act Respecting First Nations, Inuit and Métis children, youth, and families (also called Bill C-92) came into effect Wednesday.

Passed in the days before the federal election, the law proposes to establish protections for Indigenous children and their families, as well as hand over responsibility for Indigenous child welfare to Indigenous governments — who receive responsibility once institutions, policies and laws are developed and approved (presumably based on Indigenous cultural values, principles, and histories, but the law is vague on this).

Arguably, it was one of the most important bills Prime Minister Justin Trudeau has passed and is a “signature” policy representing reconciliation.

It responds directly to the Truth and Reconciliation Commission (and specifically the fourth “call to action,” that “minimum standards” be created to protect and empower Indigenous children and families). It resembles a U.S. law passed in 1978, which helped reduce the over-representation of Indigenous children in care.

It’s also a law that tries to engage the over-representation of Indigenous children in care, an emergency that leads to massive costs for everyone.

The law has been criticized heavily for its paternalistic attitude, lack of funding and resources for planning and delivery, and necessary legal changes to ensure the handover is a success. Most First Nations have begun planning the process of implementation anyway.

Still, there are many mountains ahead for Indigenous communities and governments. While virtually every Indigenous community I know wants control over the future of their children, there are infrastructure, funding, and human challenges. Most have to do with the fact many communities live under the devastating Indian Act and experience a situation history has created that I call: “too many needs and not enough to deal with them.”

Among all First Nations in Canada, communities in Manitoba are some of the most ready to begin.

Not only are there more then 11,000 Indigenous children in care in this province (representing around 90 per cent of the entire system) but for decades, Indigenous groups and governments here have been establishing their own child welfare organizations. Today, there are at least 17 First Nations- and Métis-run organizations that seem poised to lead Manitoba’s transition.

Still, and for the reasons above, change will take time.

“Mistakes will be made,” Indigenous Services Minister Marc Miller announced on Friday. “Change will not come overnight.”

Miller now is saying that “until Indigenous laws are in place, services to Indigenous children will continue as before. However, every Indigenous child and family services provider will have to apply the basic principles set out in the act.”

First Nations readiness, however, might not be the real challenge with implementing the law. The problem is with provincial governments that hold jurisdiction over child welfare and departments that are deeply tied to the child welfare system, such as education and health.

In the weeks leading to the implementation of the act, provincial ministers called on the federal government to give them direction on how to hand Indigenous children to Indigenous-run organizations.

They got almost no response, leading to confusion, uncertainty, and an emerging jurisdictional conflict between provinces and First Nations.

Questions about what meets “minimum standards” of protection for Indigenous children and how Indigenous organizations can take control of their own affairs — as well as who approves this handover — are undefined.

Manitoba Families Minister Heather Stefanson said in November: “This is not the way to bring about reforms in such an important area as this that will have an impact on the most vulnerable people in our society, which is our children. This is unacceptable.”

As a result of this confusion, the Quebec government has challenged the legality of the law. It has applied to the province’s Court of Appeal for exemption and a constitutional “exclusivity” over Indigenous child welfare. Alberta is threatening a similar case.

The provinces will likely lose these applications, but these questions represent a longstanding constitutional problem in Canada.

For services like health, education, and child welfare, Canadians deal with provincial governments.

First Nations, on the other hand, share relationships with the Crown (and its proxy, the federal government) so they receive services from the federal minister of Indigenous services.

First Nations have fought very hard for this legal relationship with the Crown — creating the basis for treaties, land, claims, and rights — so this cannot change.

But it might have to.

The provinces, which up to this point carry jurisdictional control over Indigenous children, must now work with First Nations, Inuit, and Métis governments on how the handover will take place, whether they like it or not.

The federal government should be taking the lead on what defines this new relationship, but it’s not.

This has left a rather revolutionary possibility of First Nations and provinces working together absent of the federal government – or not.

If goodwill existed on both sides, this could work.

Because money, power, and children are involved, it won’t.

First Nations don’t want to work with provinces for legal reasons.

Provinces don’t want to work with Indigenous governments for jurisdictional reasons.

Meanwhile, 11,000 children wait, and an emergency continues.

 

Niigaan Sinclair is Anishinaabe and is a columnist at the Winnipeg Free Press.