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Canada continues shirking its human rights obligations to First Nations children

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Parliament Hill, Ottawa. Image credit: Nancy Girard Bégin/Flickr

The federal government has once again proven that legislative initiatives tend to be effective deflections from their ongoing failures to address human rights abuses against Indigenous peoples. Bill C-92: An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (2019) was heralded by the Assembly of First Nations (AFN) and the federal government as the solution to the "humanitarian crisis" of First Nations children in foster care. The AFN in particular pushed hard for the legislation to pass in Parliament, despite widespread opposition and protests from First Nations from all over Canada. First Nations legal and child welfare experts also warned Parliament that C-92 did not align with Canada's political promises and could in fact make things worse. They were right.

No statutory guarantee of funding

There are many substantive problems with C-92, but the most obvious is that there is no statutory guarantee of funding for First Nations in the legislation. In other words, there is no judicial right that a First Nation could use in court to force federal compliance in relation to funding under the act. This concern was raised and effectively ignored by the AFN in its push to have the bill pass into law -- all while federal officials were assuring First Nations that funding would follow. As expected, funding did not follow and to make matters worse, it looks like the federal government used C-92 as an attempt to insulate itself from the orders of the Canadian Human Rights Tribunal (CHRT).

The federal government has confirmed that it does not consider itself to be bound by CHRT orders to end racial discrimination in funding against First Nations children in foster care, once First Nations assume jurisdiction under C-92.

"Since (Bill C-92) falls outside the scope of the CHRT orders, the CHRT orders will not apply to a First Nation that has assumed jurisdiction."

Federal officials further clarified that:

"There is no funding stream for the long-term operationalization of an Indigenous governing body's law once they begin exercising jurisdiction."

This confirmation comes from the federal government's response to questions posed by the First Nations Child and Family Caring Society in their ongoing litigation at the CHRT. Canada is effectively telling First Nations: sure, you can assume jurisdiction over housing, education, health care and child and family services; but if you do, your funding will be cut or reduced. Oh, and by the way, you assume all the liability.

The whole point of the CHRT's original decision was for Canada to stop racially discriminating against First Nations children in foster care and their families. One of the primary reasons why First Nations children are apprehended and placed in foster care at such high rates is due to the purposeful, chronic and racially discriminatory underfunding of essential social services for First Nations -- like child and family services. Ironically, one of the most striking pieces of evidence in the CHRT hearing came from the government's own internal documents that confirmed that federal underfunding leads to higher rates of First Nation child apprehensions. Yet Canada continues to underfund child and family services and all services like housing, health care, education, water and mental health services like suicide prevention on reserve. It is no coincidence then, that First Nations have the worst socioeconomic conditions of all groups in Canada.

Transfer of federal liability

This follows a similar pattern in federal legislative initiatives over the last few decades, where under the guise of addressing a breach of Indigenous rights, they instead use legislation to deflect from the matter and find ways to insulate the federal government from liability and/or transfer federal liability to First Nations. Bill C-3: Gender Equity in Indian Registration (2011) was supposed to end sex discrimination against First Nations women and their descendants in Indian registration. Instead it created new discrimination and in Section 9 insulated itself from any legal claims by those Canada had discriminated against for decades. Similarly, in Bill S-3: An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur general) (2017), Canada once again failed to address all forms of sex discrimination and via Section 10 purports to insulate itself from liability for the discrimination endured by First Nations women and their descendants.

In enacting legislation, even in relation to First Nations, the federal government should always be assumed to be acting in the best interests of the Crown first, despite its fiduciary and other legal obligations to First Nations. C-3 and S-3 are just two legislative examples of explicit insulation of liability from Canada's own wrongdoing. Another example is the Safe Drinking Water for First Nations Act (2013), which has done little to remedy the ongoing lack of clean drinking water and sanitation on all First Nation reserves but helped deflect media attention away from the crisis. Yet the legislation creates more problems than it solves including the creation of new ways to imprison First Nations members who breach the water laws; ensure federal laws are paramount over First Nation laws; and the inclusion of Section 11 which purports to limit liability for both the provincial and federal governments.

'Draw down' jurisdiction?

In this context, it becomes apparent that First Nations who "draw down" jurisdiction under C-92 may be assuming significant financial and legal liability without corresponding legal protections and guaranteed, long-term needs and rights-based financial supports. Take a scenario where a First Nation band member is receiving federal support for health needs for their children under Jordan's Principle and then the band assumes jurisdiction. What happens to the funding support for this First Nation band member and their children if -- as the federal government has confirmed -- they will not be bound by CHRT orders to provide funding to First Nations for critical programs like Jordan's Principle (a child-first policy that is meant to ensure First Nations children have access to the same government services that other children do)? Does the member seek funding from the First Nation and if so, how will the First Nation provide this funding if the federal government ends Jordan's Principle funding to First Nations under C-92?

The AFN has a lot to answer for in its support of C-92 without ensuring the free, prior and informed consent of First Nations, and worse, for forging ahead when so many First Nations leaders and First Nation child welfare experts were against the legislation as it read. First Nations who have given notice or are contemplating giving notice that they want to "draw down" jurisdiction over child and family services under C-92 are likely shocked to hear these concerning revelations by the federal government. This is not something the government shared during review of the bill or has included in their information packages online.

'Trust us' mantra is not enough

Were it not for the ongoing legal actions by the First Nations Child and Family Caring Society to hold the federal government to account to comply with CHRT orders, we might not know the gravity of the funding situation. Canada must now answer for this bad-faith funding shell game to undermine the basic human rights of First Nations children. The "trust us" mantra is not enough when the issue is the ongoing genocide of First Nations. It is long past time for full transparency and to stop ducking its human rights obligations to First Nations children and families.

Pamela D. Palmater is a Mi'kmaw lawyer and member of the Eel River Bar First Nation in New Brunswick. She teaches Indigenous law, politics and governance at Ryerson University and heads Ryerson's Centre for Indigenous Governance.

This article was originally published by The Lawyer's Daily on February 8, 2021, part of LexisNexis Canada Inc. Some edits have been made for style and to include references.

Image credit: Nancy Girard Bégin/Flickr

Presentation to Senate Committee on Bill C-92 First Nation, Inuit, Metis Child Welfare

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