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Indigenous - First Nations, Inuit and Métis children, youth and families, An Act Respecting (FNIMCYFA)
MORE CASES
Part 2
. Reference re An Act respecting First Nations, Inuit and Métis children, youth and families
In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (SCC, 2023) the Supreme Court of Canada (in an appeal initiated by reference to the Quebec CA) sets out an extended legal and social history of Canada's sad relation with indigenous children and families, including setting the present-day legal context including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the federal UNDRIP Act, and the "Act respecting First Nations, Inuit and Métis children, youth and families" (FNIMCYFA) - the latter of which was subject of an unsuccessful constitutional challenge in this case:I. Introduction
[1] In an order in council made on December 18, 2019, the Government of Quebec gave the province’s Attorney General a mandate to challenge, through a reference to the Court of Appeal, the constitutionality of the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (“Act”), on the ground that it exceeds the jurisdiction of the Parliament of Canada. Stating that the federal statute [translation] “raises fundamental constitutional issues with regard particularity to the division of legislative powers and the constitutional architecture of Canada”, the government referred the following constitutional question to the Quebec Court of Appeal:[translation] Is the Act respecting First Nations, Inuit and Métis children, youth and families ultra vires the jurisdiction of the Parliament of Canada under the Constitution of Canada?
(Order in council 1288‑2019, (2020) 152 G.O. II, 154, at p. 155) In answer to this question, the Court of Appeal held that the Act is constitutionally valid except for ss. 21 and 22(3), provisions that give the laws of Indigenous groups, communities or peoples priority over provincial laws and, as a result, exceed Parliament’s jurisdiction.
[2] With the same question before it, this Court is of the opinion that the Act as a whole is constitutionally valid. It falls within Parliament’s legislative jurisdiction over “Indians, and Lands reserved for the Indians” under s. 91(24) of the Constitution Act, 1867. Since it concerns relationships within Indigenous families and the control exercised by Indigenous communities over Indigenous children, the impugned Act relates first and foremost to what is called Indigeneity or “Indianness”, that is, Indigenous peoples as Indigenous peoples, which requires its classification under s. 91(24) of the Constitution Act, 1867.
[3] The Act is part of a broader legislative program introduced by Parliament to achieve reconciliation with First Nations, the Inuit and the Métis “through renewed nation‑to‑nation, government‑to‑government and Inuit‑Crown relationships based on recognition of rights, respect, cooperation and partnership” (preamble). The framework serving as the foundation for this reconciliation initiative by Parliament is the UNITED NATIONS DECLARATION on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (“Declaration” or “UNDRIP”), adopted by the United Nations General Assembly in 2007. That international instrument provides that “Indigenous peoples, in exercising their right to self‑determination, have the right to autonomy or self‑government in matters relating to their internal and local affairs” (art. 4). Among the matters dealt with in the Declaration, the provisions setting out “the right of indigenous families and communities to retain shared responsibility for the upbringing . . . and well‑being of their children, consistent with the rights of the child” (preamble; see also art. 14) are of particular relevance to this reference. The Declaration also refers to the right of Indigenous peoples to transmit their histories, languages and cultures to future generations (art. 13(1)), in addition to emphasizing the right not to be subjected to any act of violence, including “forcibly removing children of the group to another group” (art. 7(2)).
[4] While the Declaration is not binding as a treaty in Canada, it nonetheless provides that, for the purposes of its implementation, states have an obligation to take, “in consultation and cooperation with indigenous peoples, . . . the appropriate measures, including legislative measures, to achieve the ends” of the Declaration (art. 38). Recognized by Parliament as “a universal international human rights instrument with application in Canadian law”, the Declaration has been incorporated into the country’s positive law by the UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES ACT, S.C. 2021, c. 14 (“UNDRIP Act”), s. 4(a). This statute recognizes that the Declaration “provides a framework for reconciliation” (preamble); s. 5 of the same statute requires the Government of Canada, in consultation and cooperation with Indigenous peoples, to take “all measures necessary to ensure that the laws of Canada are consistent with the Declaration”. The statute’s preamble expressly provides that the implementation of the Declaration in Canada “must include concrete measures to address injustices” facing, among others, Indigenous youth and children.
[5] The Act challenged in this reference is therefore directly in keeping with Canada’s commitment to “implementing the United Nations Declaration on the Rights of Indigenous Peoples”, as the first recital of its preamble confirms. The preamble to the Act also refers to the calls to action of the Truth and Reconciliation Commission of Canada asking governments to “implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation” (Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (2015), at p. 191, call to action No. 43). This echoes one of the calls for justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls (see Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019), vol. 1b, at pp. 167‑218). At the centre of this process of reconciliation, the Act specifically addresses the harm caused to Indigenous children and their families. Its preamble states that “Parliament recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices”. In the preamble, Parliament also recognizes the “disruption” that Indigenous women and girls have experienced in their lives in relation to child services and “the importance of reuniting Indigenous children with their families and communities from whom they were separated in the context of the provision of child and family services”. To achieve these aims, Parliament affirms the need “to respect the diversity of all Indigenous peoples, including the diversity of their laws”, and “to eliminate the over‑representation of Indigenous children in child and family services systems”.
[6] Parliament embarked on this process of legislative reconciliation in favour of Indigenous children by taking an [translation] “unusual” approach, as the Court of Appeal put it (2022 QCCA 185, at para. 515 (CanLII)). Section 8 [SS: of the FNIMCYFA] sets out the three elements of the Act’s purpose, which are all distinct legal avenues that are combined into an organic whole and have the same reconciliatory purpose: the affirmation for Canada, made by Parliament and binding on the Crown, of the vitality of Indigenous peoples’ legislative authority in relation to child and family services, and the provision of such services on the basis of national standards. FIRST, the Act’s purpose is to “affirm the inherent right of self‑government, which includes jurisdiction in relation to child and family services” (s. 8(a)). This affirmation relates to what the Act calls the “laws” of Indigenous groups, communities or peoples, and it expresses the idea that these would be the most appropriate laws to govern the situation of Indigenous children and families. SECOND — and somewhat in counterpoint to the first purpose mentioned — the Act sets out “principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children” (s. 8(b)). The development by Parliament of national legislative standards to protect Indigenous children is a direct response to the fourth call to action made by the TRUTH AND RECONCILIATION COMMISSION. THIRD, the Act’s purpose is also to “contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples” (s. 8(c)). Again, this purpose responds to the Truth and Reconciliation Commission’s call for the Government of Canada to develop an action plan and other concrete measures to achieve the objectives of the Declaration.
[7] The three elements of the purpose set out in s. 8 reflect Parliament’s openness to using three different types of legal norms that will be interwoven in this framework for reconciliation to ensure the well‑being of Indigenous children: the legislative authority of Indigenous peoples in relation to child and family services, the legislative provisions enacted by Parliament to establish national standards, and the international standards referred to in the Declaration. The metaphor of “braiding” together these three types of norms has been helpfully proposed to explain how the Declaration should be implemented in Canada, so as to “work out how state law and Indigenous law could be interwoven, with guidance from international law, to form a single, strong rope” (G. Christie, “Indigenous Legal Orders, Canadian Law and UNDRIP”, in UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws (2017), 48, at p. 48; see also O. Fitzgerald and R. Schwartz, “Introduction”, ibid., 1, at p. 3).
[8] Announced in s. 8 and carried out by the Act as a whole, Parliament’s effort to braid this “rope” with three strands constitutes the specific framework for reconciliation when it comes to Indigenous child and family services, in the spirit of the Declaration. Canada’s commitment to implementing the Declaration and responding to the Truth and Reconciliation Commission’s call to action is thus met immediately; this avoids the uncertainties of constitutional negotiations, the slowness of treaty settlements entered into on a piecemeal basis by the Crown and each of the various Indigenous communities concerned, and the inevitable conflicts associated with court settlements (on this point, see the explanations given by K. Wilkins, “Strategizing UNDRIP Implementation: Some Fundamentals”, in J. Borrows et al., eds., Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (2019), 177).
[9] Nothing prevents Parliament from affirming, as it does in s. 18(1) of the Act, that Indigenous peoples have jurisdiction to make laws in relation to child and family services. This “affirmation”, through which Parliament declares that the inherent right of self‑government recognized and affirmed by s. 35 OF THE CONSTITUTION ACT, 1982 includes “legislative authority” in relation to Indigenous child and family services, certainly represents a legislative commitment that Parliament must honour in its conduct toward Indigenous peoples. Furthermore, nothing prevents Parliament from declaring, as it does in s. 7, that this commitment, like the others made toward Indigenous peoples in the Act for the protection of children, “is binding” on His Majesty. This is of signal importance, because no enactment is binding on His Majesty or affects His Majesty or His Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment, as is the case with s. 7 (see Interpretation Act, R.S.C. 1985, c. I‑21, s. 17; Wilkins, at p. 184, citing Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184, at paras. 1 and 19‑21). It is equally open to Parliament to affirm that the laws of Indigenous groups, communities or peoples will prevail over other laws in the event of a conflict. Moreover, it is clear that issues relating to the scope of s. 35 of the Constitution Act, 1982 and to the application of the doctrine of federal paramountcy are ultimately matters *** for the courts under Canadian law, not the legislative branch, since they raise questions of constitutional interpretation. Plainly, Parliament may not, by enacting an ordinary statute, amend the Constitution, including the rights protected by s. 35 of the Constitution Act, 1982, or alter the division of powers in the Constitution Act, 1867. That being said, Parliament’s jurisdiction under s. 91(24) of the Constitution Act, 1867 is a sound basis for enacting federal legislation that contains such affirmations and imposes such obligations on His Majesty, just as it is a sound basis for imposing national standards for child and family services for Indigenous children (s. 8b)). Contrary to what the Attorney General of Quebec argues, this in no way undermines the “constitutional architecture” of Canada.
II. Context
[10] For most of Canada’s history, lawmakers have wrongly employed a policy of assimilation aimed at “lifting [Indigenous peoples] out of [their] condition of tutelage and dependence, and . . . prepar[ing] [them] for a higher civilization” (Annual Report of the Department of the Interior for the Year Ended 30th June, 1876, reproduced in Sessional Papers, vol. X, No. 7, 4th Sess., 3rd Parl., 1877, No. 11, at p. xiv, quoted in Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back (1996), at p. 277; see also The Final Report of the Truth and Reconciliation Commission of Canada, vol. 1, Canada’s Residential Schools: The History, Part 1 — Origins to 1939 (2015), at pp. 107‑9). This history, which includes the residential schools policy, the “Sixties Scoop” and the harm and intergenerational trauma that resulted therefrom, is detailed in several reports published in recent decades (see, e.g., The Final Report of the Truth and Reconciliation Commission of Canada, vol. 1, Canada’s Residential Schools: The History, Part 1 — Origins to 1939 and The History, Part 2 — 1939 to 2000 (2015); Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019), vol. 1a).
[11] The effects of these government policies are still being felt today. “In tandem with the residential school system, the child welfare system . . . became a site of assimilation and colonization by forcibly removing children from their homes and placing them with non‑Indigenous families” (Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol. 1a, at p. 282). The statistics on the overrepresentation of Indigenous children in child welfare systems are quite simply staggering. According to 2016 census data, about 7.7 percent of children under the age of 15 in Canada are Indigenous, but they represent 52.2 percent of children in foster care in private homes (Indigenous Services Canada, The Government of Canada announces the coming into force of an Act respecting First Nations, Inuit and Métis children, youth and families, September 10, 2019 (online)).
[12] Over time, Canada has abandoned its policy of assimilation in favour of a policy of reconciliation. Parliament established the Truth and Reconciliation Commission of Canada and gave it a dual mandate to “reveal to Canadians the complex truth about the history and the ongoing legacy of the church‑run residential schools” and to “guide and inspire a process of truth and healing, leading toward reconciliation within Aboriginal families, and between Aboriginal peoples and non‑Aboriginal communities, churches, governments, and Canadians generally” (Honouring the Truth, Reconciling for the Future, at p. 23).
[13] The Truth and Reconciliation Commission of Canada issued several calls to action relating to the welfare of Indigenous children. Notably, in call to action No. 4, the Commissioncall[s] upon the federal government to enact Aboriginal child‑welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases and includes principles that:
i. Affirm the right of Aboriginal governments to establish and maintain their own child‑welfare agencies.
ii. Require all child‑welfare agencies and courts to take the residential school legacy into account in their decision making.
iii. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate.
(Honouring the Truth, Reconciling for the Future, at pp. 143‑44) The Commission also called upon governments to adopt and implement the UNDRIP in its entirety as a “framework for reconciliation” (Honouring the Truth, Reconciling for the Future, at pp. 187‑91, calls to action Nos. 43‑44).
[14] In 2016, Canada made a commitment internationally to support the UNDRIP “without qualification” and to implement it (C. Bennett, Speech delivered at the United Nations Permanent Forum on Indigenous Issues, New York, May 10, 2016 (online)). The UNDRIP gives particular recognition to “the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well‑being of their children, consistent with the rights of the child” (preamble). It states in arts. 3 and 4, respectively, that Indigenous peoples have the right to “freely determine their political status and freely pursue their economic, social and cultural development”, as well as the right, in exercising their right to self‑determination, “to autonomy or self‑government in matters relating to their internal and local affairs”. Article 7(2) of the UNDRIP states that “Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.” Article 13(1) of the UNDRIP recognizes that Indigenous peoples have “the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures”, a right that is reinforced by the correlative duty of states to take measures to ensure that it is protected (art. 13(2)). Further, art. 38 of the UNDRIP provides that “States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of th[e] Declaration.”
[15] In 2021, Parliament enacted the UNDRIP Act, s. 4(a) of which affirms the Declaration “as a universal international human rights instrument with application in Canadian law”. It is therefore through this Act of Parliament that the Declaration is incorporated into the country’s domestic positive law. In s. 4(b), the statute states that its purpose is also to “provide a framework for the Government of Canada’s implementation of the Declaration”. In s. 5, it provides that the “Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration”. Further, s. 6(2)(b) provides that the minister responsible for the statute must prepare and implement an action plan, which must include “measures related to monitoring, oversight, recourse or remedy or other accountability measures with respect to the implementation of the Declaration”. More generally, in the preamble to this statute, Parliament emphasized the Government of Canada’s commitment to “taking effective measures — including legislative, policy and administrative measures — at the national and international level, in consultation and cooperation with Indigenous peoples, to achieve the objectives of the Declaration”. Parliament also referred in the preamble to the call for it to implement the UNDRIP made by the Truth and Reconciliation Commission in its calls to action and by the National Inquiry into Missing and Murdered Indigenous Women and Girls in its calls for justice.
[16] The call for lawmakers to pass legislation affirming self‑government for Indigenous peoples and facilitating the exercise of these rights has been echoed in other contexts. Internationally, for example, the importance of such measures has been repeatedly pointed out (see, e.g., UNDRIP, art. 38; United Nations, General Assembly, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, S. James Anaya, U.N. Doc. A/HRC/9/9, August 11, 2008; United Nations, Office of the High Commissioner for Human Rights, Statement upon conclusion of the visit to Canada by the United Nations Special Rapporteur on the rights of indigenous peoples, James Anaya, October 15, 2013 (online)).
[17] Taking legislative measures of this kind has been described as being part of a process that some have termed “legislative reconciliation”, that is, the enactment of legislation “to respect, promote, protect, and accommodate inherent rights through mechanisms or frameworks elaborated upon within the statute” (see N. S. W. Metallic, “Aboriginal Rights, Legislative Reconciliation, and Constitutionalism” (2023), 27:2 Rev. Const. Stud. 1, at p. 5). In other words, legislation of this kind does not purport to be the source of the rights in question, but rather proceeds on the premise that these rights exist. Similar initiatives have also been described as “recognition legislation”, including in the Report of the Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the Relationship (1996), at p. 314 (see also S. Grammond, “Recognizing Indigenous Law: A Conceptual Framework” (2022), 100 Can. Bar Rev. 1, at pp. 20‑21).
[18] Certain legislative initiatives predicated on the recognition of Indigenous rights have been adopted. For instance, the Indigenous Languages Act, S.C. 2019, c. 23, begins by stating in its preamble that “the recognition and implementation of rights related to Indigenous languages are at the core of reconciliation with Indigenous peoples and are fundamental to shaping the country, particularly in light of the Truth and Reconciliation Commission of Canada’s Calls to Action”. . K.R. v Children’s Aid Society of London and Middlesex
In K.R. v Children’s Aid Society of London and Middlesex (Div Court, 2023) the Divisional Court critically considers the trial judge's treatment of the federal "Act Respecting First Nations, Inuit and Metis Children, Youth and Families":[46] The most significant of these is the Appellant mother’s claim that the trial judge did not properly consider and apply An Act Respecting First Nations, Inuit and Metis Children, Youth and Families, S.C. 2019, c. 24 (the “Federal Act”). I disagree. The trial judge’s reasons on both the question of whether the Children were in need of protection and his disposition analysis reference the Federal Act and apply it to the facts. The trial judge properly instructed himself as to the requirements of the Federal Act (see, inter alia, para. 17 of his reasons). Finally, the trial judge also criticized the Society (at para. 106) for its delay in trying to obtain help from the First Nation and other Indigenous organizations. All of these factors demonstrate that the trial judge was alive to the requirements of the Federal Act and to the importance of the Children’s Indigenous heritage. He was entitled to make findings of fact and apply those facts to the law, which he did. There is no reversible error.
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[57] The trial judge’s reasons on access are relatively brief. The trial judge identified the decision in Kawartha-Haliburton Children’s Aid Society v. M.W. 2019 ONCA 316, (2019) 432 D.L.R. (4th) 497 as confirming that, even after being placed in Society care, a child can still have a meaning and beneficial relationship with a parent and that preserving that relationship justifies access. The trial judge also stated that the Federal Act needed to be taken into account.
[58] However, he did not grapple with either the significance of the Federal Act’s provisions with respect to access or the circumstances that already existed on the ground at the time of trial. In failing to address either of these issues, the trial judge erred in law and made a palpable and overriding error in respect of the access that he ordered.
[59] The concerns with the trial judge’s reasons start with section 17 of the Federal Act, which provides as follows17 In the context of providing child and family services in relation to an Indigenous child, if the child is not placed with a member of his or her family in accordance with paragraph 16(1)(a) or (b), to the extent that doing so is consistent with the best interests of the child, the child’s attachment and emotional ties to each such member of his or her family are to be promoted. [60] This provision emphasises that the ties to the child’s family members are to be promoted. It is a requirement that must be fulfilled in deciding access subject to the best interests of these Children.
[61] While the trial judge considered the Federal Act in detail in his analysis of the other issues, he did not consider it sufficiently in making his decision to reduce access from weekly to bi-monthly. This failure is magnified by the fact that the level of access that existed at trial was being successfully maintained. In these circumstances, if the trial judge was going to reduce the access, it was incumbent on him to both ground the decision on the facts as he found them and then provide an adequate explanation as to why the access should be reduced despite the important role of promoting ties to family where Indigenous children are not placed with a family member, as set in the Federal Act. I agree with the Children’s Lawyer that the Federal Act must be integral to determining the level of access in this case.
[62] The Respondents note that the fresh evidence suggests that the current reduced access is not going smoothly. As noted by the Children’s Lawyer, change may mean that issues arise and this does not necessarily result in the need for or justification of reduced access. Promoting attachment and emotional ties to the Children’s Indigenous mother and siblings may need a period of transition. Further, the Appellant mother’s fresh evidence suggests that there are steps that the Society and the foster mother could be taking to assist with the process. .
[63] Having regard for the imperatives under the Federal Act and the evidence before him about the current access, I reluctantly conclude that the trial judge erred in reducing the access that was already ongoing.
[64] The trial judge erred in law in failing to give full effect to the provisions of the Federal Act on the subject of access. Based on the facts as the trial judge found them, the legislative imperative of s.17 of the Federal Act and bearing in mind the fresh evidence as it has been presented to us, there does not appear to be basis to reduce the access below what existed at the time of trial. . Children’s Aid Society of London and Middlesex v. T.E.
In Children’s Aid Society of London and Middlesex v. T.E. (Ont CA, 2023) the Court of Appeal considered the child protection regime involving indigenous children, including relevant provisions of the federal "First Nations, Inuit and Métis children, youth and families (An Act respecting)":[32] The federal legislation, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, s. 13 (the “Federal Act”) provides:In the context of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child,
(a) the child’s parent and the care provider have the right to make representations and to have party status; and
(b) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which the child belongs has the right to make representations. [Emphasis added.] [33] “Care provider” is defined, in s. 1 of the Act, as “a person who has primary responsibility for providing the day-to-day care of an Indigenous child, other than the child’s parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs”.
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[56] The motion judge allowed the father’s motion to withdraw the Society’s protection application. This was procedurally flawed, as only the Society is in a position to withdraw its own application. That said, it is appropriate to decide this issue on the merits.
[57] The motion judge based the decision to dismiss the proceedings on the existence of the CCA. To understand the significance of the CCA, and the positions of the parties, it is necessary to review the concepts which underly a customary care agreement.
[58] Customary care is defined by legislation. Customary care agreements are not.
[59] Section 2 (1) of the CYFSA provides that “customary care” means “the care and supervision of a First Nations, Inuk or Métis child by a person who is not the child’s parent, according to the custom of the child’s band or First Nations, Inuit or Métis community”.
[60] As this court confirmed in Dilico, at para. 35, customary care is the preferred approach for a First Nations, Inuk or Métis child in care. This is consistent with federal and provincial legislation, as well as the principles housed in the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3.
[61] Section 80 of the CYFSA directs Societies to make all reasonable efforts to develop a plan for customary care for a First Nations, Inuk or Métis child in need of protection.
[62] Customary care agreements are the agreements that implement the plan for customary care. They are agreements between the parties, a representative of the First Nation, and the Society that set out a plan for the child’s care, in accordance with the objectives of the legislation, rather than through the usual child protection proceedings. Customary care agreements represent a cooperative and community-based approach to the wellbeing of First Nations, Inuit and Métis children in care.
[63] At issue is whether, and to what extent, customary care agreements are subject to court supervision. The appellant says that they are. The respondents, on the other hand, submit that the courts have limited, if any, supervisory role because Oneida has inherent jurisdiction to care for their own children.
[64] Thus, the parties fundamentally differ as to the nature and effect of customary care agreements generally and, specifically, the CCA in this case.
[65] The appellant submits that customary care agreements are an invention designed to circumvent the provisions of the CYFSA and are “now being used to justify where a child resides outside the purview of the courts”. Consequently, issues such as mandatory timelines and a careful analysis of the best interests of the child are completely avoided. The appellant submits that customary care and customary care agreements have been conflated and that the agreements are being used to give the relevant band the unilateral authority to decide where, and with whom, the child resides, outside of the purview of the courts and the necessary best interests analysis.
[66] The appellant says that, if Oneida seeks to exercise inherent jurisdiction, they need to follow the steps necessary to implement self-government, as set out in s. 20 of the Federal Act:20 (1) If an Indigenous group, community or people intends to exercise its legislative authority in relation to child and family services, an Indigenous governing body acting on behalf of that Indigenous group, community or people may give notice of that intention to the Minister and the government of each province in which the Indigenous group, community or people is located.
Coordination agreement
(2) The Indigenous governing body may also request that the Minister and the government of each of those provinces enter into a coordination agreement with the Indigenous governing body in relation to the exercise of the legislative authority, respecting, among other things,
(a) the provision of emergency services to ensure the safety, security and well-being of Indigenous children;
(b) support measures to enable Indigenous children to exercise their rights effectively;
(c) fiscal arrangements, relating to the provision of child and family services by the Indigenous governing body, that are sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities and to support the capacity of the Indigenous group, community or people to exercise the legislative authority effectively; and
(d) any other coordination measure related to the effective exercise of the legislative authority. [67] Absent these steps, and those that follow in ss. 21-24, the appellant submits that the community will be left without the rule of law and, therefore, the respondents should be precluded from claiming sole authority over children subject to customary care agreements.
[68] The respondents submit that customary care agreements reflect the inherent right of First Nations to self-government and must be viewed through the lens of the history of residential schools and the need for reconciliation. The agreements must be respected because First Nations must make decisions regarding the care of their own children.
[69] The respondents go further to say that they, not the courts, have jurisdiction over their children. They rely on provincial and federal legislation.
[70] As per s. 1(2) of the CYFSA, one of the purposes of Act is as follows:First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family. [71] Similarly, s. 18 of the Federal Act provides:(1) The inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.
(2) For greater certainty and for the purposes of subsection (1), the authority to administer and enforce laws includes the authority to provide for dispute resolution mechanisms. [72] The respondents submit that parties to a customary care agreement have full authority over the care of the child and the court has a minimal supervisory role. Based on these principles, the motion judge was correct to dismiss the proceedings based on the CCA.
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