Twenty-second Report: Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, with amendment and observations
The Standing Senate Committee on Aboriginal Peoples has the honour to present its
Your committee, to which was referred Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, has, in obedience to the order of reference of June 10, 2019, examined the said bill and now reports the same with the following amendments:
1. Preamble, page 2:
(a) Replace line 4 with the following:
“needs of Indigenous elders, parents, youth, children, per-”; and
(b) replace line 32 with the following:
“in relation to Indigenous children and young adults, including post-majority care;”.
2. Clause 1, page 3: Replace lines 12 and 13 with the following:
“children and families, which could include prevention services, early intervention services, child protection services, adoption services, reunification services and post-majority transition services.”.
3. New clause 5.1, page 4: Add the following after line 21:
“5.1 If there is a conflict or inconsistency between the provisions of this Act and the provisions of Nunavut legislation relating to child and family services, and the provisions of the Nunavut legislation provide a level of services that meets or exceeds the level of services provided for by the provisions of this Act, the provisions of the Nunavut legislation prevail to the extent of the conflict or inconsistency.”.
4. Clause 8, page 4: Replace lines 27 and 28 with the following:
“(a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;”.
5. Clause 9, page 5: Replace line 20 with the following:
“(c) a child’s best interests are often promoted when the”.
6. Clause 14, page 9: Add the following after line 2:
“(1.1) A health care facility, health care provider or social worker must demonstrate that services that promote preventive care have been provided to support the child’s family and to serve the best interests of the child before any action can be taken to remove the child from its family.
(1.2) Within 24 hours after receiving documentation that could lead to an intervention by the service provider, a health care facility, health care provider or social worker must notify the child’s family and the service provider must not proceed with any intervention unless he or she can demonstrate that preventive care measures to prevent the removal of the child from his or her family have been explored and exhausted.”.
7. New clause 15.1, page 9: Add the following after line 15:
“15.1 If an Indigenous child is at risk of being placed on the basis of or as a result of his or her socio-economic conditions, including poverty or lack of adequate housing or infrastructure, positive measures must be taken to remediate any neglect related to the socio-economic conditions of the child’s parent or care provider.”.
8. New clause 19.1, page 11: Add the following after line 2:
“19.1 (1) Unless another forum is specified in an applicable Indigenous law, all proceedings under this Act are to proceed in the court that normally hears proceedings in relation to the protection and placement of children.
(2) For greater certainty, any matter that involves the application of the provisions of this Act may be heard in the court referred to in subsection (1).
(3) Nothing in this Act confers any jurisdiction on the Federal Court of Canada in respect of proceedings relating to child and family services.”.
9. New clause 30.1, page 15: Add the following after line 27:
“30.1 (1) The Minister must establish an advisory committee, in consultation with Indigenous governing bodies, to advise and assist the Minister on matters concerning child and family services that relate to Indigenous children and to individuals to whom those services are provided.
(2) Within two years after the coming into force of this Act, and every year after that, the advisory committee must prepare and submit a report to the Minister on its activities and findings, the operation of this Act and any other matter that it considers relevant.
(3) The Minister must include the advisory committee’s report in his or her report on the review prepared under section 31.”.
10. Clause 31, page 15: Add the following after line 32:
“(1.1) When undertaking the review, the Minister must specifically study the adequacy and methods of funding and assess whether the funding has been sufficient to support the needs of Indigenous children and their families.”.
LILLIAN EVA DYCK
Observations to the Twenty Second Report of the Standing Senate Committee on Aboriginal Peoples (Bill C-92)
Clause 4: Minimum Standards
During its clause-by-clause consideration of Bill C-92, concerns were expressed with respect to clause 4 of the bill, which states that:
For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act.
The committee was concerned that this clause imposes a limit on provinces or territories whose existing legislation exceeds the level of services that are provided for in the bill. The example of Nunavut was of particular concern to the committee. While the departmental officials clarified that where provincial or territorial legislation relating to child and family services is seen as providing a level of services that exceeds Bill C-92’s standards this would not be considered to conflict or be inconsistent with the bill, the committee believes that this clause should be amended to make this point clear.
In addition, some Indigenous communities have expressed concern that clause 4 means that provincial or territorial legislation prevails in relation to child and family services. While the departmental officials explained that clause 4 only applies where an Indigenous community has not exercised its jurisdiction over child and family services, the committee believes that this clause should be amended to clarify this point.
Clause 20: Coordination Agreement
With respect to coordination agreements discussed in clause 20, the committee emphasizes that the following principles need to be considered in negotiating such an agreement:
(a) the agreement should fulfill the purposes and principles of this Act;
(b) fiscal arrangements referred to in (c) (below) should provide for adequate funding to cover the actual costs of
(i) child and family services, including core and operational costs and capital funding, and
(ii) the development of Indigenous laws and any supporting institutions and services required to enable the Indigenous governing body to exercise its legislative authority in relation to child and family services;
(c) any provision for funding provided under the agreement should be periodically reviewed and adjusted to account for inflation, demographic changes, changes in the needs of children and families and any unforeseen community emergencies that place higher numbers of children and families in need of child and family services; and
(d) the agreement should reflect any recommendations contained in the report referred to in clause 31(3) of Bill C-92.
First Nations Statistical Institute
During study on Bill C-92, the committee heard witness testimony regarding the importance of gathering, managing and interpreting statistics related to those covered by the provisions of this proposed statute.
It was also noted during testimony that Canada once had a First Nations Statistical Institute(FNSI). Federal funding for this institution was halved in 2012-2013 and finally eliminated in 2013-2014.
The federal government created the First Nations Statistical Institutein 2006 under the provisions of the First Nations Fiscal and Statistical Management Act. Thus, attempting to amend Bill C-92 to reinstate this institution falls outside of the latter bill’s scope.
It is however noted by the committee that the federal government should strongly consider amending the First Nations Fiscal Management Act at the first opportunity, in order to bring about the reintroduction of this important institution to aid in the efficacy of Bill C-92 by providing the necessary and proper means of managing statistics so critical to ensuring the effectiveness of the Act.