Canada Enacts Legislation Requiring Consideration of Indigenous Children’s Culture When Making Care Placements

By: Simonne Kapadia

On January 1, 2020, Canada enacted An Act respecting First Nations, Inuit and Métis children, youth and families (“Respecting First Nations Act”), which is viewed generally as a positive, yet imperfect, step in correcting a long history of government mistreatment of Indigenous children.[1] Notably, the Respecting First Nations Act recognizes the “inherent right of self-government” of Indigenous peoples and requires that when government care programs provide services for an Indigenous child, they must do so in a way that accounts for the child’s cultural background and familial relationships.[2] The Respecting First Nations Act also requires care services to prioritize the child’s family and Indigenous culture and community when making placement decisions.[3] Codifying Indigenous peoples’ agency over the welfare of Indigenous children in government care programs is important because approximately fifty-two  percent of children in Canadian care programs are Indigenous even though the Indigenous population only accounts for about seven percent of the overall population of Canadian children.[4]

While issues related to the well-being and cultural preservation of Indigenous children in Canadian care programs persist today, the Respecting First Nations Act must be understood in the context of Canada’s history of mistreating Indigenous children and intentionally erasing Indigenous culture. [5] The Canadian government has had a contentious relationship with Indigenous communities in regard to the treatment of Indigenous children, dating back to the residential school system.[6] The residential school system formally began in 1876 with the passage of the Indian Act, which gave the Canadian federal government “the right and responsibility of educating (and assimilating) Indigenous people in Canada.”[7] As part of the residential school system, approximately 150,000 Indigenous children were separated from their families and cultures and forced to adopt tenets of Christianity and mainstream Canadian culture.[8] Additionally, there were many reports of child physical and sexual abuse originating from the residential school system.[9]

The residential school system did not end until 1996; however, beginning in the 1960s through the 1980s, in a period referred to as the “Sixties Scoop,” the care system created another avenue for government control over the Indigenous population.[10] In 1951 the Canadian federal government gave provincial governments power over Indigenous reservations and funded this transfer of power in 1966.[11] This transfer of power resulted in provincial white, middle-class social workers visiting Indigenous children’s homes and mistaking poverty, caused by years of repressive federal policies, as child endangerment and subsequently removing Indigenous children from their homes and families.[12] Many government officials involved in the Sixties Scoop also purposely used the care system as “a tool of forced assimilation.”[13] During this time, many Indigenous children were adopted by white families in the United States and Canada and permanently separated from their own families and culture.[14]

In 2007, the Canadian government and Indigenous peoples entered into the Indian Residential Schools Settlement Agreement (“IRSSA”).[15] Motivation for the Respecting First Nations Act stems, in part, from the Canadian Truth and Reconciliation Commission’s (“TRC”) Call to Action, created as part of IRSSA.[16] The TRC’s Call to Action urges the Canadian government to, inter alia, “[r]equire all child-welfare agencies and courts to take the residential school legacy into account” and prioritize Aboriginal children’s culture when making child welfare decisions.[17] Thus, the Respecting First Nations Act’s focus on prioritizing the culture and family of Indigenous children placed in the government care system, aspires to enact the principles in the TRC’s Call to Action.[18]

In addition to the TRC’s Call to Action, the United Nations Declaration on the Rights of Indigenous People (“UNDRIP”) also served as an impetus for the Respecting First Nations Act.[19] Canada fully adopted UNDRIP in 2016.[20] While UNDRIP is not legally binding, portions of UNDRIP are relevant to the Respecting First Nations Act’s provisions.[21] In pertinent part, UNDRIP “[recognizes] . . . the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children”; resolves that Indigenous children must not be “forcibly remov[ed]” from their community; and resolves that signatory governments must “take effective measures” to ensure that Indigenous children have access “to an education in their own culture and . . . language.”[22]

While an important step, the Respecting First Nations Act is not a panacea for issues related to placing Indigenous children in Canada’s care system. Criticisms of the Act include questions regarding its efficacy due to a lack of funding and whether it will create meaningful change.[23] The province of Quebec even went so far as to challenge the Act’s constitutionality on the grounds that allowing Indigenous communities to have agency over the placement of Indigenous children interferes with the province’s “exclusive jurisdiction” over child welfare matters.[24] The Canadian government has a long history of devaluing Indigenous culture and peoples and it is unlikely that the Respecting First Nations Act will, in and of itself, counteract this history. However, the Act, at the very least, demonstrates Canada’s willingness to reckon with its treatment of Indigenous peoples and children.

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[1] An Act Respecting First Nations, Inuit and Méits Children, Youth and Families, S.C. 2019, c. 24 § 35 (Can.) [hereinafter the Respecting First Nations Act]; Brett Forester, Federal Indigenous Child Welfare Bill C-92 Kicks In- Now What?, APTN News (Jan. 1, 2020), https://www.aptnnews.ca/national-news/federal-indigenous-child-welfare-bill-c-92-kicks-in/

 (stating that the Act is a result of much advocacy work and research, but that issues regarding a lack of funding and vague verbiage remain); See generally Yellowhead Institute, The Promise and Pitfalls of C-92: An Act Respecting First Nations, Inuit, and Métis Children, Youth and Families (2019) (discussing five major “pitfalls” of the Respecting First Nations Act).

[2] Respecting First Nations Act §§ 8, 11(b)-(c).

[3] Id. § 16.

[4] Reducing the Number of Indigenous Children in Care, Gov’t of Canada, https://www.sac-isc.gc.ca/eng/1541187352297/1541187392851 (stating that according to 2016 Census data “52.2% of children in [Canadian] foster care are Indigenous, but account for only 7.7% of the child population”) (last visited Aug. 23, 2020).

[5] See generally National Collaboration Centre For Aboriginal Health, Indigenous Children and the Child Welfare System in Canada(2017) (discussing contemporary issues related to the well-being of Indigenous children in Canadian care systems).

[6] Tabitha Marshall, Indian Residential Schools Settlement Agreement, Canadian Encyclopedia (last edited Jan. 16, 2020), https://www.thecanadianencyclopedia.ca/en/article/indian-residential-schools-settlement-agreement.  

[7] Id. (noting that while the residential school system formally began in 1876, the action of taking Indigenous children away from their families originated with colonization).

[8] A History of Residential Schools in Canada, CBC News (last updated March 21, 2016) https://www.cbc.ca/news/canada/a-history-of-residential-schools-in-canada-1.702280.

[9] Id.

[10] Canada Confronts Its Dark History of Abuse in Residential Schools, Guardian (Jun. 6, 2015), https://www.theguardian.com/world/2015/jun/06/canada-dark-of-history-residential-schools; James Sinclair Niigaanwewidam, Sharon Dainard, Sixties Scoop, Canadian Encyclopedia (last edited Oct. 22, 2019), https://www.thecanadianencyclopedia.ca/en/article/sixties-scoop.

[11] Katie Hyslop, How Canada Created a Crisis in Indigenous Child Welfare, Tyee (May 9, 2018), https://thetyee.ca/News/2018/05/09/Canada-Crisis-Indignenous-Welfare/.

[12] Niigaanwewidam, supra note 11.

[13] Christopher Dart, The Sixties Scoop Explained, CBC, https://www.cbc.ca/cbcdocspov/features/the-sixties-scoop-explained (last visited Aug. 23, 2020).

[14] Niigaanwewidam, supra note 11.

[15] Marshall, supra note 6.

[16] Respecting First Nations Act, S.C. 2019, c. 24 Pmbl. (Can.); Marshall, supra note 6.

[17] Truth and Reconciliation Comm’n of Canada, Calls to Action 1 (2015).

[18]  See Respecting First Nations Act §§ 8, 11(b)-(c).

[19] Id. at Pmbl.

[20] Tim Fontaine, Canada Officially Adopts UN Declaration on Rights of Indigenous People, CBC (May 10, 2016, 1:16PM), https://www.cbc.ca/news/indigenous/canada-adopting-implementing-un-rights-declaration-1.3575272.

[21] United Nations Permanent Forum on Indigenous Issues, Frequently Asked Questions on the Declaration on the Rights of Indigenous Peoples 2.

[22] UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples Pmbl., Art. 7 § 2, Art. 14, § 3 (2007).

[23] Forester, supra note 1; Yellowhead Institute, supra note 1 at 4.

[24] Benjamin Shingler, Jessica Deer, Quebec Wants Out of New Federal Indigenous Child Welfare Law, Citing Threat to Provincial Jurisdiction, CBC News (Dec. 19, 2019, 3:42 PM) https://www.cbc.ca/news/canada/montreal/quebec-bill-c92-indigenous-child-welfare-1.5402968.