What is ‘An Act respecting First Nations, Inuit and Métis children, youth and Families’?
The Act was developed in response to Indigenous advocacy and the Truth and Reconciliation Commission’s Calls to Action. As of January 1, 2020, the Act applies across Canada.
The purpose of this Act is to:
(a) affirm the inherent right of self-government, which includes jurisdiction over child and family services;
(b) set out ‘National Standards’ that must be followed when providing child and family services to Indigenous children; and
(c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’).
What are these ‘National Standards’?
Best interests of the child
This includes a set factors used to assess what is in a child’s best interest.
Cultural continuity
The recognition that the cultural is essential to a child’s wellbeing and that the government must not contribute to assimilation or cultural destruction.
Substantive equality
The commitment that children, their families and the IGB must all be able to exercise their rights. Indigenous children must not experience gaps in service.
What are the ‘Best Interests of the Child’?
The Indigenous laws will NOT be applied if they are deemed contrary to the ‘Best Interests of the Child’. The Act sets out primary considerations of a child’s best interest. It includes:
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- the child’s physical, emotional and psychological safety, security and well-being;
- the importance, for that child, of having an ongoing relationship with their family and Indigenous group, community or people to which they belong; and
- preserving the child’s connection to his or her culture.
Secondary considerations include:
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- the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
- the child’s age and stage of development;
- the nature and strength of the child’s relationship with his or her parents, care provider and any member of his or her family;
- the importance of the child’s ongoing relationship with his or her Indigenous family, community, language and territory;
- the child’s views and preferences, considering the child’s age;
- any plans for the child’s care including care in accordance with the customs and traditions of the Indigenous group;
- any family violence and its impact on the child, whether it is direct, indirect and whether the violence is physical, psychological or emotional; and
- any civil or criminal proceeding, order, condition, or other measure that is relevant to the safety, security and well-being of the child.
However, the ‘Best Interests of the Child’ are to be interpreted in a way that is consistent with the Indigenous law of the community to which the child belongs.
What is an Indigenous Governing Body?
BEFORE taking jurisdiction over child and family services, a section 35 rights-bearing Indigenous group must first authorize an Indigenous governing body (“IGB”) to represent it.
According to an Act respecting First Nations, Inuit and Métis children, youth and families, an Indigenous governing body means 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.
Who can become an IGB?
A council
A government
Any other entity as long as they are authorized to act on behalf of the Indigenous group or community
What does an IGB do?
They must have a mandate or statement of goals
They have to draft the Indigenous laws and decide how services will be delivered and who will do it
They will meet with the federal and provincial governments and enter into a “coordination agreement” which involves discussion about funding, liabilities and what to do when the provincial, federal and Indigenous law conflict with one another.
What is ‘Jurisdiction?
Jurisdiction means the power or authority to make laws, interpret them and apply them within a specific area. In this case, the jurisdiction is over child and family services.
The Indigenous communities of South Island have always had laws and took care of children and families long before provincial and federal laws were made.
An Act respecting First Nation, Inuit and Métis children, youth and families recognizes the inherent right of Indigenous self-government, which includes jurisdiction over child and family services.
This Act provides a way for Indigenous communities to go back to using their own laws and exercising their power and authority over children and families. Under the Act, Indigenous communities can:
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- draft their own child and family service laws;
- administer and enforce these laws; and
- provide dispute resolution mechanisms.
However, there are certain limits to the power and authority that Indigenous communities can exercise. This will be explained in further detail.
What are the Limits to Indigenous Jurisdiction?
An Act respecting First Nations, Inuit and Métis children, youth and families provides a way for Indigenous communities to take back their authority and power over child and family services. It recognizes the inherent Indigenous jurisdiction over this area BUT sets out certain limits.
When there are conflicts or inconsistencies between federal, provincial and Indigenous laws, the Indigenous law generally wins out.
However, Indigenous laws are subject to the application of the Charter of Rights and Freedoms and the Canadian Human Rights Act.
Additionally, when a child belongs to two Indigenous groups or has ties to multiples communities, the Indigenous laws of the group deemed to have ‘Stronger Ties’ will apply.
The Indigenous laws will NOT be applied if they are deemed contrary to the ‘Best Interests of the Child’. The Act sets out what considerations are made in this assessment.
In summary, Indigenous jurisdiction is limited by the Act in three major ways:
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- Indigenous laws must be consistent with the Charter of Rights and Freedoms and the Canadian Human Rights Act.
- Children who belong to multiple Indigenous groups will fall under the jurisdiction of the community that they have ‘Stronger Ties’ to.
- Indigenous laws are not applicable if they are contrary to the ‘Best Interests of the Child’.
What is a section 35 rights-bearing Indigenous group?
Section 35 is the part of the Constitution that recognizes Aboriginal rights
Aboriginal peoples include the “Indian, Inuit and Métis peoples of Canada”