On January 1, 2020, An Act Respecting First Nations, Inuit and Métis children, youth and families (the “Act”) came into force. This Act establishes national principles to be applied to all First Nation, Inuit, and Métis children who are in the child and family services system and also allows Indigenous rights and title holders to exercise legislative authority through their chosen government or entity in the area of child and family services.
Under the Act, every child and family service provider will have to follow the national principles established in the Act in relation to the care of Indigenous children. The national principles will apply in addition to existing provincial or territorial laws and they include acting in the best interests of the child, as well as preserving cultural, familial and territorial connections. The Act also provides that children should not be removed from their family solely on the basis of socio-economic conditions, lack of housing or infrastructure, or the state of their caregiver’s health.
The Act sets out a priority for placement of Indigenous children and requires an ongoing review of the child’s placement. The priority includes the child’s parents, the child’s family, a member of the child’s community, a member of another Indigenous community and finally a non-Indigenous adult. The Act defines family in a broad manner to include a person considered to be a close relative of the child by either the child or by the Indigenous group to which the child belongs.
Before the Act came into force, Indigenous child and family services were governed by provincial or territorial legislation. The Act affirms the inherent right of self-government including jurisdiction in relation to child and family services.
Indigenous governments or entities can enact their own child and family services law as long as they provide notice to Indigenous Services Canada of their intention to do so. If the Indigenous government or entity seeks to have their child and family services law supersede provincial law, it will be required to enter into a co-ordination agreement with the federal and provincial governments. Once an agreement is reached or if an agreement cannot be reached after a year, the Indigenous law will be passed with the same effect as federal law, allowing it to prevail over provincial and federal law.
If an Indigenous government does not want to enter into a co-ordination agreement, they can enact a law and inform Canada of their intention to pass the law; however, without seeking to enter into a co-ordination agreement, the provincial law will prevail in the event there is a conflict between the provincial and Indigenous laws.
United Nations Declaration on the Rights of Indigenous Peoples
Another stated purpose of the Act is to contribute to the implementation of the United Nations Declaration of the Rights of Indigenous Peoples.
While this Act takes positive steps towards recognizing the jurisdiction of Indigenous peoples over child and family services, it creates substantial limits on the exercise of that jurisdiction. The Act places limits Indigenous jurisdiction in relation to child and family services, by setting out minimum standards, making Indigenous laws subject to the Charter of Rights and Freedoms, and stating that federal Cabinet has the power to make regulations.
Finally, there is no binding commitment to properly fund Indigenous child and family services. The Act appears to leave the question of funding to be negotiated in co-ordination agreements. This does not address the systemic and chronic underfunding by Canada in relation to First Nations children in care recently recognized by the Federal Court in the Case. The Act is silent on how those Indigenous government or organizations not wanting to enter into co-ordination agreements will be funded and it may exacerbate underfunding by creating additional jurisdictional disputes over funding for child and family services implemented under co-ordination agreements.