Question Period Note: C-92 Implementation Child and Family Services

• The Act’s national guiding principles must be applied by all who provide child and family services to First Nations, Inuit, and Métis children and families including provinces, territories, and service providers.

• This will ensure that the best interests of the child, cultural continuity, and substantive equality are the guiding principles and priorities in the delivery of services to Indigenous families.

• The implementation of the Act is fundamental to addressing the over-representation of Indigenous children in care. We must continue to work together to end this ongoing crisis impacting Indigenous children, parents and families.

Indigenous Services Canada (ISC)’s First Nations Child and Family Services (FNCFS) Program provides funding to support the safety and well-being of First Nation children on reserve. Funding is provided to FNCFS agencies, provinces and the Yukon Territory to support the delivery of prevention and protection services on-reserve. ISC does not deliver the services. These services are provided in accordance with the legislation and standards of the province or territory of residence and in a manner that is reasonably comparable to those available to other provincial residents in similar circumstances, within ISC’s Program authorities. Funding under the FNCFS Program is provided according to a prevention-based funding model.

In 2016, the Canadian Human Rights Tribunal (CHRT) found Canada’s FNCFS Program to be discriminatory and ordered Canada to immediately remedy the discrimination. On February 1, 2018, the Tribunal added items to its previous order, including paying the actual costs of FNCFS agencies in prevention and other areas. The Department is working closely with the parties to the complaint – the Assembly of First Nations, the First Nations Child and Family Caring Society, the Chiefs of Ontario, Nishnawbe Aski-Nation, the Canadian Human Rights Commission and Amnesty International – to fully implement the various orders of the Tribunal.
The Act respecting First Nations, Inuit and Métis children, youth and families (Act) was co-developed with Indigenous partners and received Royal Assent on June 21, 2019. The Act came into force on January 1, 2020.
As of January 1, 2020, every service provider delivering child and family services in relation to Indigenous children must follow the minimum standards of the Act.
As part of the July 2020 Economic and Fiscal Snapshot, the Government of Canada has committed almost $542 million over five years, starting in 2020-21, to support the implementation of an Act respecting First Nations, Inuit and Métis children, youth and families which came into force on January 1, 2020. This historic legislation enables First Nations, Inuit and Métis to choose their own solutions for their children and families. Funding for the operationalization of the Act is requested separately once tripartite coordination agreements are reached,
Section 25 of the Act requires that certain information provided under section 20 be posted online or made accessible to the public. On its website, ISC now displays the notices provided under section 20 of the Act as well as information provided to ISC concerning Indigenous child and family services laws developed under the framework made pursuant to the Act. As of December 2, 2022, there are 19 coordination agreement discussion tables across Canada.
There are fundamental relationship issues between Canada and some provincial and territorial partners. Without the active participation of provinces and territories at Coordination Agreement discussions, there is a real risk that the aspirations of Indigenous Peoples will not be met. In a number of jurisdictions, the differences are due to fundamentally different views on the rights of Indigenous groups and go beyond a division of funding responsibilities. Canada’s interpretation of the force of federal law for Indigenous laws has also strained relationships with partners. Canada’s position is that an Indigenous law gains force of federal law only in the province or territory with which a coordination agreement was concluded or reasonable efforts were made to do so by the Indigenous governing body within 12 months. This incremental approach towards achieving force of federal law provides time for the Indigenous governing body to put the necessary resources in place in advance of the Indigenous law achieving force of federal law in a specific province or territory, but will require extra resources since multiple coordination agreements might need to be put in place

If pressed on guiding principles
• The Act sets out national principles such as the best interests of the child, cultural continuity and substantive equality to help guide the provision of child and family services to Indigenous children and families.

• The Act establishes that the best interests of the child must be given primary consideration when providing child and family services to Indigenous children.

• The enactment of this legislation is for the benefit of Indigenous children, taking into consideration their unique circumstances and needs including preserving their connection to their languages, cultures, customs and traditions.

If pressed on Jurisdiction
• Section 35 rights-holders and their Indigenous governing bodies wanting to develop and enact their own laws, and have them be paramount over provincial and federal laws, now have the space to do so.

• Should any Indigenous group or community wish to exercise their jurisdiction over child and family services, they could notify the Minister of Indigenous Services and the government of each province or territory in which they are located and begin exercising their jurisdiction.

• We are supporting Indigenous self-determination that will lead to Indigenous children that are supported and cared for with connection to community and culture.
On Capacity-Building / Funding for Communities
• With the implementation of this Act, we are laying out a flexible pathway for Section 35 rights-holders and their Indigenous governing bodies to transition toward their own child and family services models and laws.

• The Government of Canada has committed over $425 million in funding, beginning in fiscal year 2020-2021 and extending over five years, to support Indigenous groups in building their capacity to exercise jurisdiction in relation to child and family services under the framework of the Act.

• This funding will support Indigenous communities and groups as they work towards jurisdictional development and the exercise of jurisdiction while preparing Indigenous governing bodies to participate at coordination agreement discussions.

• We will continue to engage with partners to assess and address long-term funding needs.
If pressed on the transition
• This Act was co-developed with partners.

• We continue to work with partners on the implementation of the Act and are committed to supporting and engaging with partners, including through distinctions-based governance mechanisms and the co-development of long term funding frameworks.

• We are dedicated to working in partnership towards the shared goal of improving the safety and well-being of Indigenous children and families.

If pressed on engagement/co-development process
• The Government of Canada engaged broadly at all levels during the co-development of the Act, seeking to ensure that a variety of stakeholders and perspectives were heard throughout the process.

• In the spirit of continued co-development of the Act’s implementation, we are committed to ongoing collaboration with partners, including Provinces and Territories, which will serve to reform the child and family services landscape.

• We will be working directly with Indigenous partners at the community, regional and national levels to ensure a diverse range of Indigenous voices are able to express their views and recommendations on elements related to the implementation of the Act.

If pressed on provinces and territories
• While most provinces and territories are generally supportive of the objectives of the Act, concerns have been expressed regarding the constitutional validity of the legislation by Quebec, financial implications, as well as operational and implementation questions.

• Provinces and territories are key players in the provision of child and family services, and without their collaboration, the ability to conclude coordination agreements to ensure services are coordinated and transferred to the Indigenous governing bodies is severely limited.

• It is Canada’s position that the Act is a valid exercise of its jurisdiction. Moving forward, we will continue to work trilaterally to conclude coordination agreements, and engage provinces and territories to work together in the area of shared jurisdiction.
If pressed on funding from provinces and territories
• Some tripartite coordination discussions and the subsequent implementation of Indigenous laws have been delayed by a lack of financial commitment from a province.

• Canada provides contributions to provinces and territories for all citizens, including Indigenous people, therefore Canada expects that provinces will continue to provide financial support to Indigenous child and family services.

• We will continue to work with provinces and territories to find a path forward that respects the inherent rights of Indigenous peoples, and the timely implementation of Indigenous laws.

If pressed on the appeal to the Supreme Court
• After careful consideration, Canada is appealing to the Supreme Court of Canada the Quebec Court of Appeal’s conclusion that sections 21 and 22(3) of the Act are invalid.

• These sections are a central part of the groundbreaking framework provided by the Act, as they establish a clear and simple rule for resolving conflicts between Indigenous and provincial laws. This is the reason why Canada is appealing.

• Canada looks forward to the Supreme Court of Canada’s direction on the best approach to ensuring that Indigenous communities can effectively exercise their jurisdiction, unencumbered by conflicting laws.
If pressed on Force of law
• An Indigenous law will gain force of federal law in the province or territory in which a coordination agreement has been concluded, or reasonable efforts were made by the Indigenous governing body to do so in accordance with the Act.

• The Act’s incremental approach towards gaining force of federal law better supports the implementation of Indigenous laws, helping avoid potential gaps in services and protecting Indigenous children’s best interests.

• We will continue to work with partners to support coordination agreement discussions and the implementation of Indigenous laws.