Participant guide: Five-Year review of An Act respecting First Nations, Inuit and Métis children, youth and families

Background

An Act respecting First Nations, Inuit and Métis children, youth and families (the Act) took effect on January 1, 2020. Every 5 years, the Minister of Indigenous Services (the Minister) must collaborate with Indigenous Peoples to review the provisions of the Act and its operation.

This participant guide is available to anyone who wishes to provide feedback and recommendations on the Act.

Indigenous Services Canada will keep working with Indigenous partners and other stakeholders to try to reduce the number of Indigenous children in child welfare. All feedback and suggestions about the Act will be part of the review and help determine how the Act could be improved. When complete, the Minister will prepare a report for Parliament that explains the Act's successes and areas for possible improvement.

How to participate

• Send us an email: sefreforme-cfsreform@sac-isc.gc.ca
• Participate by mail:
  Five-Year Review of the Act
  Children, Families and Learning Sector
  Indigenous Services Canada
  10 rue Wellington,
  Gatineau QC
  K1A 0H4
• Complete our online response form

How the information you provide will be used

Any feedback and ideas you provide will be considered in the five-year review of the Act. Your name or personal information will not be attached to your feedback in the final report presented to Parliament.

Overview of the Act

The Act has 3 main purposes: 

• affirms the inherent right of Indigenous Peoples to govern their own child and family services
• sets out national principles for Indigenous child and family services
• contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples

The Act sets out a way for Indigenous Peoples to support their children and families. It was created after many discussions with partners, starting with the January 2018 Emergency Meeting on Indigenous Child and Family Services. At that meeting, the federal government promised to take 6 actions to reduce the number of Indigenous children and youth in care, including working together on a new law.

The Act also answers the Truth and Reconciliation Commission's Calls to Action and Calls to Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls. It was also made possible thanks to the leadership and support of Chiefs, Elders, parents, grandparents, youth and community members across Canada.

Highlights of the Act

Purpose of the Act

The Act recognizes the inherent right of First Nations, Inuit and Métis to govern their own child and family services. It creates national standards to make sure these services are culturally appropriate for Indigenous children, with the goal of reducing the number of Indigenous children in child welfare. The Act also contributes to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

1. In your experience, has the Act supported First Nations, Inuit and Métis to exercise their jurisdiction over child and family services? Why or why not?
2. To what extent have the Act's minimum standards been applied in delivering Indigenous child and family services?
3. How could the Act work better with existing Indigenous, provincial, or territorial laws or programs?
4. How well is the Act helping to implement the United Nations Declaration on the Rights of Indigenous Peoples?

Provisions of the Act

Indigenous Services Canada has heard that some of the language in the Act is not clear. Certain words and sections may be creating barriers to achieving the Act's goals. Terms and concepts that have been identified include:

• care provider (section 1)
• substantive equality (section 9(3))
• significant measure (section 12)
• needs-based (section 20(2)(c)), and
• stronger ties (section 24)

1. Is the language of the Act too complex or too vague in some areas? Where would more detail or clarification help?
2. Are there terms that are currently undefined in the Act that should be defined?
3. Do you have other recommendations to improve the Act so that it can better meet its goals?

Scope of child and family services

The Act defines child and family services as "services to support children and families, including prevention services, early intervention services and child protection services." However, it does not clearly explain what is included in this scope. Indigenous Services Canada has heard that Indigenous partners and other stakeholders often interpret "child and family services" differently.

1. Have you faced any challenges with the definition of child and family services in the Act? Can you share an example?
2. What types of programs and services do you think are part of "child and family services"?

Funding

Indigenous Services Canada has heard concerns that the Act does not include clear rules about funding. Some partners say current funding models do not fully match how the Act describes funding for coordination agreements.

Provinces and territories each have their own child and family services laws and service systems. They also fund at different levels and take different approaches to supporting Indigenous jurisdiction. Indigenous partners have told Indigenous Services Canada that fair and consistent funding is needed across all regions.

Canada currently funds three types of activities under the Act: (1) building capacity, (2) having coordination agreement discussions, and (3) implementing Indigenous laws.

1. What has been your experience with funding under the Act?
2. Do you have feedback on how Canada, provinces, or territories can fund differently under the Act?

Care provider

Indigenous Services Canada has heard concerns how the Act defines "care provider." Some Indigenous partners feel the definition is too broad. On the other hand, some other partners and stakeholders believe the broad definition is appropriate.

1. How broad should the definition of "care provider" be?
2. Is the current definition appropriate in some parts of the Act, but not others? If so, why?

Significant measures

Indigenous Services Canada has received feedback about section 12 of the Act, which deals with "significant measures." This section says that service providers must notify the parent, care provider and Indigenous governing body before any significant action that could affect the child. The Act does not explain how this should work. For example, whether notice should be given when the measure is first considered or just before it happens. It also does not say what kind of notice to use (email, phone call, letter, etc.).

There is uncertainty about what counts as a "significant measure": 

• Some Indigenous partners want a broad definition that includes not only major life changes but day-to-day actions like scheduling a medical appointment.
• Other stakeholders, including some service providers, prefer a narrower definition focused on legal status or placement, such as changes to a foster caregiver or court proceedings
• Some Indigenous groups believe they should define "significant measure" themselves through their own laws or coordination agreements

1. Should the Act include specific requirements for giving notice? If yes, what should they include?
2. Should "significant measures" be defined in the Act? Why or why not? If yes, what should be part of the definition?

Compliance with minimum standards

Indigenous Services Canada has heard concerns that the minimum standards in the Act (meant to make sure child and family services are culturally appropriate) are not always being followed. The minimum standards are described in the Context section above.

1. How well do service providers follow these standards when delivering child and family services?
2. What could help make sure that the minimum standards are understood and followed?
3. Should ISC create a list of best practices or guidelines to make implementation more consistent? How should these be created?
4. Do you have any other ideas for monitoring or improving compliance among service providers?

Socio-economic conditions

Section 15 of the Act says a child cannot be removed from their living situation just because of poverty or other socio-economic issues. Before removing a child, service providers must make reasonable efforts to keep the child with a parent or another family member.

Indigenous Services Canada has heard that systemic inequalities between Indigenous and non-Indigenous communities need to be considered, and that solutions to address the root causes of socio-economic challenges are needed. Indigenous partners and other stakeholders have also said that "reasonable efforts" may be interpreted differently across provinces, territories and service providers.

1. What challenges have you seen when applying this section?
2. Are there any best practices that could be shared with service providers when applying this section?

Substantive equality

Section 9 of the Act says it should be interpreted and administered in accordance with the principle of substantive equality. Indigenous Services Canada has heard that the meaning of substantive equality in the Act is unclear, and some people think a clearer definition would help.

1. Should the Act provide a clearer definition of substantive equality? Is the current wording enough? Why or why not?
2. What do you think are the most important parts of a definition of substantive equality? 
3. Do you think the Act is currently being applied in a way that respects substantive equality?

Force of federal law

The Act says that Indigenous laws can have the same legal impact as federal law in a province or territory if certain conditions are met. This happens after a coordination agreement has been signed by all parties, or if the Indigenous governing body (IGB) makes reasonable efforts to reach an agreement within one year of requesting it.

IGBs say that the one-year timeline helps keep Canada, provinces, and territories focused on reaching an agreement quickly. But negotiations often take 18 to 36 months or longer. Some IGBs have raised concerns about funding challenges when their laws are in force before the coordination agreement is finished.

1. Should the Act define what "reasonable efforts" means? If yes, what should be included in that definition?
2. What has your experience been with the one-year timeline?

Indigenous laws in the courts

Some Indigenous partners and other stakeholders have raised concerns about court jurisdiction. The Act does not say which courts can hear cases about Indigenous laws being applied under it. Some Indigenous laws include their own systems for resolving disputes. Conflicts can arise between Indigenous laws and provincial or territorial laws. These conflicts may involve how services are coordinated, the rights of caregivers and family members, and how the laws work together. Indigenous governing bodies and legal experts have also said judges need ongoing training to ensure Indigenous laws are understood and applied correctly in court.

1. Based on your experience, how well are the courts understanding and applying Indigenous laws under the Act?
2. What changes would you suggest to the Act to make court jurisdiction clearer?