The 2016 Census revealed that First Nation, Inuit and Métis children represented only 7.7% of all children under the age of 15 in Canada but accounted for 52.2% of children in foster care. In response to the over-representation of Indigenous children in care — aptly described as a humanitarian crisis, the federal government committed to developing legislation aimed at reforming the provision of Indigenous child and family services across Canada. The government acknowledged that children were being removed from their families and communities at disproportionate rates due to factors such as poverty, intergenerational trauma and culturally biased child welfare practices.¹ Further, in recognition of the inherent right of Indigenous peoples to self-determination and to ensure an appropriate remedial response to the crisis, the government endeavoured to develop national principles in collaboration with Indigenous peoples. This co-development process was not only an important step toward repairing the broken child welfare system — it was also consistent with the broader goal of reconciliation and Canada’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples.

In the drafting process, the government held 65 engagement sessions with nearly 2000 participants comprised of representatives from First Nations, Inuit, Métis and Treaty nations, self-governing First Nations, provinces and territories, as well as experts and advocates and importantly, youth survivors of the foster care system.² The nationwide engagement process culminated in the creation of An Act respecting First Nations, Inuit and Métis children, youth and families³ (“Act”) that came into force on January 1, 2020. The Act could, with adequate resources, alter the way in which child protection is administered to Indigenous children and families. An overarching emphasis on the need to preserve cultural continuity by keeping Indigenous children connected to their families and communities is readily apparent throughout the legislation. The preambular language is symbolic as it acknowledges the harmful impact of colonization on Indigenous peoples.

The Act affirms the rights of Indigenous peoples to exercise jurisdiction over child and family services; adopts a best interests of child framework similar to what already exists in BC and imposes substantive equality principles on decision-makers. It prioritizes preventative services and prenatal care over other services to prevent apprehensions and specifically sets out that “a child must not be apprehended solely on the basis of his or her socio-economic conditions, including poverty, lack of adequate housing or infrastructure or the state of health of his or her parent or the care provider.” Importantly, the Act sets out a priority scheme for placement of a child that places significant emphasis on preserving the child’s connection to family, community and culture.

The BC government made some changes to the Child, Family and Community Service Act in May of 2018 to counter the overrepresentation of Indigenous children in foster care — by setting out a child’s right to maintain a connection to their community and culture. The amendments also carved out space for Indigenous families and nations to take part in the decision-making process — and for greater information sharing to allow for their meaningful involvement.

The Act, however, goes significantly further as it contemplates the granting of exclusive jurisdiction to Indigenous nations to decide what is best for their children. In principle, the potential of this ameliorative legislation is far reaching. However, implementation of the Act depends greatly on adequate financial resources to ensure that preventative services are available to Indigenous children and families, and to give Indigenous nations the capacity to exercise its inherent jurisdiction over their children.

¹ bit.ly/bt0220fr-1 | ↩
² ibid | ↩
³ bit.ly/bt0220fr-2 | ↩