Bill C-92, or “The Act,” applies to all Indigenous children and youth regardless of where they live in Canada and affirms the inherent right of Indigenous peoples to self-govern and to administer their own child and family services. It lays out a process by which Indigenous communities or groups can gain jurisdiction over their own child and family services.
There are two paths to jurisdiction available to Indigenous communities and groups, and each path has a different outcome. Regardless of the path chosen, an Indigenous group or community must first choose an Indigenous Governing Body (IGB) which is defined as “a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982” (Government of Canada, 2020). Once a IGB has been established and can prove its authority, either of the following two options is available:
Option 1: give notice of intention to exercise jurisdiction
The first option requires that an Indigenous community or group gives notice to the Federal Minister of Indigenous Services and the government of each province and territory in which the Indigenous community or group is located. The notice states that they plan to exercise their own laws in the area of child and family services. In this case, while an Indigenous community or group may begin to administer their own laws immediately, in the event of a conflict with provincial or federal child and family laws, Indigenous law will not prevail (Government of Canada, 2020).
Option 2: make a request to enter into a coordination agreement
For the second option, an IGB makes a request to enter into a coordination agreement with federal and provincial governments. If an agreement is reached, or “reasonable efforts were made to reach an agreement” (Government of Canada, 2020) within 12 months of the request, then “Indigenous laws would have the force of federal law and would prevail over conflicting federal, provincial and territorial laws in the event of a conflict or inconsistency” (Government of Canada, 2020).
Before the request can be made by the IGB, the Indigenous community or group must complete a rigorous number of tasks such as confirm the mandate of the IGB and develop a suite of child and family service laws, a work plan outlining plans for implementation, and a detailed budget. During the 12-month period after the request, documentation must be presented by the Indigenous party, tripartite coordination agreement meetings must be held, and work plans finalized. In the event of a disagreement during the negotiations, a tool for dispute resolution may be co-created by all parties involved (Government of Canada, 2020).
However, any further guidelines for complications arising during negotiation are vague. At the Indigenous party’s request, negotiations can extend past the 12-month period and a Coordination Agreement can be made after the 12 months is up. A new Coordination Agreement request can be made at any time (Government of Canada, 2020).
What if no path to jurisdiction is chosen?
In the event that an Indigenous community or group does not choose either of the pathways to jurisdiction over their child and family services, service providers will instead follow the minimums laid out in the National Standards of The Act (Wahkohtowin Law and Governance Lodge).
Click here to find a publication of all Indigenous communities or groups who have posted notices and requests toward self-government in Indigenous child and family services.
Critiques of The Act
There are many areas of The Act that may hinder work toward the goal of self-governing Indigenous child and family services.
One area of great concern is jurisdiction. If communities choose to give notice of their intention to exercise jurisdiction, there is no guarantee that implementation of an Indigenous community’s child and family laws will be any more than surface level, because provincial and federal laws may prevail. Space may be made for cultural connections, but not for the local Indigenous worldview and practices. Decisions about services may take even longer, as three levels of government will need to negotiate responsibilities (Metallic et al, 2020).
If an Indigenous group successfully requests, negotiates and ratifies a Coordination Agreement, all child and family laws are still subject to Section 10, the “best interests of the child,” (BIOC) (Metallic et al, 2020). The Western idea of the BIOC reinforces the individual over the collective. Within a context of intergenerational trauma, this ignores the reality that within Indigenous families and communities are generations of children whose “best interests” were explicitly denied through colonialist policies and practice. A strict adherence to the western BIOC allows Western notions of family to trump those based in an Indigenous worldview and local Indigenous culture and practice.
What’s more, the jurisdiction of the courts will not change. Provincial courts will remain the arena in which many decisions about Indigenous children, youth and families will be made, and there can be no guarantee that judges will interpret the concept of “best interests of the child” any differently than they did before the implementation of The Act, regardless of the new caveats added (Metallic et al, 2020).
For communities who do not have the capacity, the tasks required in order to assume jurisdiction may become obstacles, especially within a 12-month timeline. Capacity building requires funding, but The Act is devoid of specific references to funding commitments (Metallic et al, 2020). This means the access and opportunity for all Indigenous communities or groups to engage in this process may not be equitable.
Indigenous Child and Family Service Agencies are crucial to this change
In order to draw down jurisdiction over child and family services, an Indigenous community or group must have the capacity to complete a long checklist of tasks. Many of these tasks require the kind of knowledge held by the agencies that are already providing support and services to Indigenous children, youth, and families.
Before a request to enter into negotiations can be made, the Indigenous community must provide a detailed run-down of the child and family service legislation that will be adopted. They also must provide a work plan which includes information about who will be administering services and how services will be made available, as well as an itemized and detailed financial plan. This presents a huge challenge: it can be very difficult to know what you will need before you have even begun the work.
Indigenous child and family service agencies have been doing the work and they know where funding is lacking. They have seen the results when programs are underfunded and staff is overwhelmed. They have crucial knowledge about federal child and family laws that have hindered their work of serving families in a culturally safe and holistic way. This knowledge can be drawn upon when creating the documents necessary to enter into negotiation. After all, the 12-month timeline is short and the list of tasks associated with jurisdiction is long.
Once jurisdiction is realized, the nurturing of relationships will be crucial to the success of Indigenous child and family services. Existing Indigenous child and family service agencies have connections with service agencies both in and out of community, including within urban centres where so many Indigenous families now live. Strong and open working relationships between Indigenous governance and Indigenous child and family services leads to strong programs and supports, and existing Indigenous child and family service agencies have experience negotiating this relationship, as well as with navigating the complicated intersections with provincial and federal levels of government. Lastly, and most importantly, existing Indigenous agencies hold relationships with families. Changes in child and family legislation create risks for Indigenous families, and strong pre-existing relationships with Indigenous service providers mean risks can be mitigated through open communication and culturally rooted practice.
Today’s delegated Indigenous Child and Family Service Agencies were only ever meant to be a step in the journey toward fully realized self-governance in the area of Indigenous child and family services. This step has dragged on much further than anticipated, yet during this time, Indigenous child and family service workers have worked within hostile and restrictive environments to care for Indigenous children, youth and families. Indigenous child and family service workers have waited for a time when their work can be done in a manner that is consistent with the cultural values and practices of the Indigenous communities they work within.
Wahkohtowin Law and Governance Lodge University of Alberta. (no date). Bill C-92 Compliance Guide for Social Workers and Service Providers. University of Alberta. Retrieved from https://www.ualberta.ca/wahkohtowin/media-library/data-lists-pdfs/bill-c-92-compliance-guide-for-social-workers-and-service-providers.pdf
Director’s Forum Orientation Manual
Metallic, N. W., Friedland, H., Hewitt, J., Morales, S. & Craft, A. (2020). Special Report Series: Bill C-92: An Act Respecting First Nations, Inuit and Metis Children. Yellow Head Institute. Retrieved from https://yellowheadinstitute.org/bill-c-92-analysis/
Government of Canada. (2020). Technical Information Package: An Act respecting First Nations, Inuit and Métis children, youth and families. Retrieved from https://www.sac-isc.gc.ca/eng/1579468554846/1579468577638