Bill C-92

An insufficient bill that lacks concrete support to Indigenous communities

What is C-92?

Legislation that the federal government of so-called-Canada passed in 2019.

It is intended to recognize and affirm the inherent right of self-government held by First Nations – in relation to child and family services.

It confirms that such rights are existing inherent Aboriginal and treaty rights in section 35 of the Constitution Act, 1982.

C-92 can be seen as a step in the right direction towards Indigenous self-government…

Unfortunately (and unsurprisingly) it misses the mark.

What’s Wrong with C-92?

Vague Wording

The Problem

The term ‘best interest of the Child’ (BIOC) appears frequently throughout the bill – but it lacks clear definition.

This vagueness can lead to biased interpretations by child welfare professionals and maintain the current system (An Act respecting First Nations, Inuit and Métis children, youth, and families, 2019).

Research findings suggest that many social workers and judges are posed with limited creative solutions in the child welfare system, ultimately leading them to decide that apprehension is in the BIOC, without support to address colonialism, and trauma from ongoing white supremacy and intergenerational trauma.

The Solution

To make sure the term “Best Interest of The Child” isn’t left open to different interpretations, we need clear rules. These rules should say that if a child can’t be placed with their Indigenous group, efforts must be made to do so.

If this cannot occur, the following documentation should be completed:

Affidavit evidence that the child is unable to be placed within the custody of the Indigenous group.
An access order for a family or community member to visit as part of the permanency order – including long-term funding for travel to and from the community.

Lack of Funding

The Problem

The case ‘First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada’ found First Nations are adversely impacted by the services provided by Crown–Indigenous Relations and Northern Affairs Canada and often denied services as a result (2016).

This history of knowingly underfunding First Nations child welfare services makes us hesitant to accept that Bill C-92 will be any different from previous child welfare legislation.

Bill C-92 doesn’t commit to adequately fund existing First Nation child welfare services according to equality standards set by the Tribunal in Caring Society. It also lacks assurances for funding future self-government initiatives by Indigenous groups over child welfare services, as well as support for developing and implementing Indigenous child welfare laws and related essential services impacting child welfare (Walqwan Metallic et al, 2019).

Also, Bill C-92 doesn’t clearly say who should handle funding. It needs negotiations between Indigenous communities and Canada, but the province also needs to be involved. This confusion makes it unclear who’s responsible for what.

The Solution

Provide adequate funding through clear channels.

Create federal funding commitments to Indigenous and First Nations child welfare organizations. Ensure the funding is adequate to meet the needs of the children within the reserve and requiring services.

Ensure the budget reflects and includes children and families who are non-status, Inuit, off-reserve, and Métis.

Coordination between provincial and federal governments to fund Indigenous bodies of governance implementing Jordan’s Principle.

Create clear funding obligations for the provincial government to provide.

No Accountability

The Problem

Canada has maintained that it has no constitutional or legal obligation to provide adequate essential services to First Nations on reserve or other Indigenous peoples located elsewhere (Walqwan Metallic et al, 2019).

The First Nation Caring Society decision confirmed otherwise. “The Tribunal found that Canada plays a primary role in child welfare services on reserve pursuant to its s. 91(24) constitutional jurisdiction and ultimately has the power to remedy inadequacies with the provision of child and family services and improve outcomes for children and families” (Walqwan Metallic et al, 2019).

Yet, Bill C-92 has no mention whatsoever of its responsibility to provide essential and adequate services to Indigenous people.

The Solution

Hold the Canadian Federal government accountable to the ongoing injustices of Indigenous peoples.

Introduce independent decision makers into the decision-making and legislative process.

Allow First Nations the ability and power to meaningfully and impactfuly oppose legislation and policy making.

Unclear Jurisdiction

The Problem

In 1867, Canada’s Constitution Act assigned provincial governments the jurisdiction for child welfare.

However, it also gave the federal government jurisdiction over “all matters relating to ‘Indians and lands related to Indians, (Walqwan Metallic et al, 2019).

This overlap continues to fuel a distracting argument between the federal and provincial governments over who is responsible for the welfare of Indigenous children – simultaneously denying Indigenous communities the right to self-government.

Bill C-92 may take strides in affirming Indigenous communities by stating “the rights and jurisdiction of Indigenous peoples in relation to child and family services” (Bill C-92, 2019).

However, no outlined boundaries on jurisdiction means Bill C-92 still allows the federal government space to infringe on that right and to re-assert control.

The Solution

So-called-Canada must recognize the First Nation’s right to self-determination under UNDRIP by creating a detailed path of jurisdiction between provincial and federal governments.

We also need changes to the most important rules so that they are accessible and every community member can understand them – including Indigenous children who are residing off-reserve, are non-status, Métis, and/or Inuit.