What Can I Say About Bill C-92

Written by Gaileen Flaman

Recently, I’ve been on a mission to understand Bill C-92, mostly because I’m working alongside Kathy, Principal of Kaniikaniit Consulting and champion of self-determination for Indigenous child and family services, but also as an act of reconciliation as it’s my desire to go beyond allyship and channel my professional skills and abilities in a way that decolonizes entrenched policies and practices that ignore or inadequately endorse an Indigenous worldview. It is our community engagement work with West Moberly First Nation that catalyzed my motivation to explore, understand, and explain the Bill in a way that makes something complex clear and conversable.

I began my search online, uncovering charts, an information sheet, and a position paper that provided some background, defined terms, and answered questions about start dates, omissions, and how to handle current situational challenges. I also discovered the First Nations Child & Family Caring Society (FNCFCS) website that has a plethora of information and resources around Jordan’s Principle and Seven Ways to Make a Difference for First Nations children and families, useful for readers interested in taking meaningful, yet manageable action.

For listeners, a three-part podcast episode of Pam Palmater’s Warrior Life can be found on Spotify, in which she interviews Cindy Blackstock (April 2019), whom many know as the activist for Indigenous child welfare. More from Cindy Blackstock as the Executive Director of FNCFCS is found on YouTube, in a four-part series “Building a New Reality for our Children” which explains what’s involved for a community or organization to take over child welfare jurisdiction. Further commentary from Monty Montgomery, Associate Professor, Faculty of Social Work at the University of Regina, and Hereditary Chief of Skin Tyee Nation, Helen Michell, round out the voices championing change in this series.

I reviewed a couple of longer videos as well, Part I (80 mins) A panel discussion with Cindy Blackstock and Hadley Friedland from a collaborative event and Part II (95 mins) A recorded Zoom discussion with Cindy Blackstock, Hadley Friedland and Koren Lightening-Earle, titled “Bill C-92: The Good, The Bad, & The Unknowns”.

Yet, the most impactful and easy-to-digest description, definition, and explanation of the Act came in the form of an online PowerPoint presentation graciously offered up from the University of Alberta’s Wahkohtowin Law and Governance Lodge. “Bill C-92 Community Guide” presented by Hadley Friedland, Assistant Professor, and Koren Lightening-Earle, Lawyer, is exceptionally helpful when struggling to figure out what the Act means. The beauty of this presentation is captured by Aaron Russell of Conference Doodles as he created this real-time translation of the community presentation into text and pictures that discuss the challenges and potential in the National Standards and Law Making.

Here's what I learned: The Bill is no longer a Bill, but an Act brought into force on Jan 1, 2020, which continues to be referred to as Bill C-92 and known as An Act Respecting First Nations, Inuit, and Metis Children, Youth, and Families. Indigenous Governing Bodies (IGB) can either notify Canada that they have enacted their own law, and/or request to negotiate a coordination agreement with Canada. While the Act presents an opportunity for Indigenous communities, it did not come in with clear guidelines, policies, or how-to’s regarding the interpretation of the law, so folks like Hadley and Koren share their interpretation through their presentation, directed to organizations looking to pursue jurisdiction.

There are two main parts to the law, the first being Inherent Jurisdiction (law-making) which is receiving lots of media attention and is a bit of a beast, and the second being National Standards (law-as-it-is-now), which our presenters suggest is a starting point towards self-determination and can have real-time impacts. Three over-arching principles shape the legislation: 1. The Best Interests of the Indigenous Child ensures the Indigenous child is always at the forefront; 2. Cultural Continuity ensures services do not contribute to assimilation and cultural destruction, and 3. Substantive Equality ensures all Indigenous children, families, and governing bodies can exercise their rights without gaps in service. Previously, family law and child welfare law did not lead to good outcomes for Indigenous children and families as they did not have an Indigenous perspective.

With the embedded New Analysis required to assess the best interest for the Indigenous child, factors such as familial, community, and cultural connections and on-going relationships are super-weighted, meaning these factors take precedent when considering what best for the kiddos. There are eight of these factors and include things like taking into account unique family systems and structures, upbringing and heritage, the child’s view and preferences, the impact of violence, and plan of care within the community jurisdiction. The delivery of child and family services required a review of Intent plus Impact, allowing space for planning preventative and prenatal care which extends into making early plans for after-care. These Preventative Provisions include two things; 1. The Best Interest of the Indigenous Child, which takes out the often-embedded socio-economic assumption when it is not relevant, and; 2. that Reasonable Effort is taken before apprehension which allows for co-creation of community-generated wrap-around services.

The terms Notice & Representation may be familiar to First Nations, but previously omitted for Inuit and Metis folks. Notice refers to the sharing of information to those responsible for the Indigenous child before any Significant Measure takes place and those entities having Representation in court and civil proceedings when desired. So, IGB such as tribal councils, bands, nations, as well as organizations granted authority to manage child welfare have Party status, just like parents and primary childcare providers. However, party status does not extend to non-Indigenous, un-related foster parents. Again, this ensures families, customs, and traditions remain intact. Significant measure refers to legal changes and also changes related to placement, sexual identity, institutionalization, service providers, coming of age, and suicidal ideation, for example, anything that would change the day-to-day life of the child, family, and care provider, and would impact timelines. The underlying message and purpose is that awareness provides an opportunity to reunify the child with themselves and their people.

A new provision allows courts to have oversight in how Placement Priorities are occurring where children must be placed in order of priority beginning with their own parents, then within their family members, then within their community, then in another Indigenous placement, and finally, other (out-of-care, non-Indigenous placements). Further, placements near siblings are prioritized as are placements considering customs and traditions. Reasonable Efforts goes along with this by documenting evidence as to why the initial placements were not sufficient and the process followed. This tool further supports community and relationships within communities. An additional provision specifies On-going Reassessment of the placement, requestable by anyone through court order, to ensure ideal placement throughout the child’s stay. Further recognition of Attachments and Emotionalities, attend to creative and diverse methods to relate and connect in community, with or without social distancing restrictions.

Inherent Jurisdiction is a bison-sized endeavor. While the Act itself is simple, the undertaking is challenging work. First Nations, Metis, and Inuit have inherent Aboriginal or Treaty Rights to self-governance and authority for Indigenous children and families, however, it has not been recognized, affirmed, nor respected for centuries of Canadian rule. This Act outlines the process for organizations to draft and administer child welfare laws and the dispute process as it fits within their own communities by, first, give notice to Canada, second, create coordination agreements within a year, and third, publish the law in place in it’s wholeness, or as steps or elements of authority.

But here’s the thing: The only clause in the Act addressing Funding holds the directive “may” in contrast to “must” which is the highly desired terminology as it ensures fiscal arrangements, substantive equality, and support for the capacity of Indigenous groups for long-term, positive outcomes for the Indigenous child. Without it, this leaves room to interpret funding as an option, not a given.

Whew, there is a lot to learn about the Act and there are good resources to educate non-Indigenous people as well as inform Indigenous communities and organizations looking to exercise their right respecting family law and child welfare. I encourage you to view the Bill C-92 Community Guide that helped inform this blog and to carry on the conversation on our Facebook page Bill C-92 and You.