Ottawa failed to work with First Nations to prepare for new child welfare law, says AFN national chief

Assembly of First Nations National Chief Perry Bellegarde says Ottawa has failed to work with First Nations to prepare for a new Indigenous child welfare law coming into force Jan. 1, 2020, according to a letter sent to Indigenous Services Marc Miller Wednesday.

The new law creates national standards on how provincial and territorial child welfare agencies deal with apprehended Indigenous children. It also carves out jurisdiction for Indigenous governing bodies — First Nation, Inuit and Métis — to pass laws governing their own child welfare systems that would trump provincial, territorial and federal laws.

Federal officials have said the delay in preparing for the law, which was passed in June, was caused by the federal election and the so-called “caretaker convention” that prevents the government from making major decisions during the writ period.

Bellegarde’s letter acknowledges that explanation but says it falls short.

“At this point, there has been no adequate collaboration or cooperation in preparing the implementation pathway for the legislation,” says Bellegarde in his letter to Miller, obtained by CBC News.

The letter calls on Miller to agree to a “political accord” that would guide the law’s implementation through a First Nations lens.

“We urge you to complete this work with us on an urgent basis,” says Bellegarde’s letter.

Miller’s office said they only received the letter Wednesday and need to give it “appropriate consideration” before commenting on it.

Indigenous Services Minister Marc Miller listens to chiefs as they speak during a session at the AFN Special Chiefs Assembly in Ottawa Dec. 3, 2019. (THE CANADIAN PRESS)

Miller’s office said the minister’s department has the lead on implementing the law.

Bellegarde’s letter says the government should not take a pan-Indigenous approach to implementation.

The letter was sent hours before AFN chiefs passed a resolution calling on Ottawa to provide funding and engage directly with First Nations and regional bodies to implement the new law.

‘The game changes’

AFN Manitoba regional Chief Kevin Hart, who is responsible for the child welfare portfolio, said First Nations would need about $3.5 billion over five years in transitional funding to take over jurisdiction of their child welfare systems.

Justice Minister David Lametti faced questions from Assembly of First Nations chiefs about the uncertainty surrounding Bill C-92, which comes into force Jan. 1, 2020. (THE CANADIAN PRESS)

Under Bill C-92, an Indigenous governing body can implement its own child welfare laws and run all aspects of a child welfare system within a year of notifying Canada of its intention.

Indigenous governing bodies also have the option of striking agreements with provincial governments on their proposed child welfare laws and systems — but a deal isn’t necessary.

“Jan. 1, the game changes,” said Splatsin First Nation Chief Wayne Christian.

Christian said his community has managed to take jurisdiction over its own child welfare services, under its own laws, through an agreement with Canada and British Columbia.

He said that through C-92, the Secwepemc Nation as a whole (of which Splatsin is one of 17 members) could develop national child welfare laws.

He said the law also would allow First Nations to deal with each other on child welfare matters — such as the decision on where to place a child — without needing to work through provincial or territorial governments.

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Following a speech at the AFN’s annual December meeting in Ottawa, Justice Minister David Lametti faced questions from chiefs on the uncertainty around Bill C-92’s looming implementation.

Lametti said that the bill would be implemented “piece by piece” and that the ultimate goal would be to reduce the number of children taken into care.

“We have to move from apprehension to prevention,” said Lametti.

‘Going to the brink’

However, Lametti and Crown-Indigenous Relations Minister Carolyn Bennett, questioned by reporters, could not clarify how Ottawa was prepared to deal with the national standards that come into force under the law on Jan. 1.

“This is really going to the brink,” said Mary Ellen Turpel-Lafond, British Columbia’s former child advocate and an adviser to the AFN’s chiefs committee on children and family services.

Under the law, provincial child welfare agencies must alert an Indigenous governing body if a member child is about to be apprehended or if a decision is about to be taken regarding the child’s care.

The law also would end “birth alerts” — the practice of social workers warning hospitals about at-risk pregnant mothers without their consent — by requiring an agency to engage in pre-birth and post-birth prevention work to avoid separating the child from the mother. In the event that a child needs to be apprehended, the law requires agencies to first attempt placement of the child with extended family, or within their own First Nation.

Only if those options fail can a child be placed outside of their First Nation, according to the law.

Turpel-Lafond said that, come Jan. 1, child welfare agencies across the country will be facing a number of variables in a situation where an Indigenous child needs to be removed from a home.

“These are the judgments that have to be made immediately. The question is, whose lap does it fall into?” said Turpel-Lafond.

“We have this legislation and we don’t know how it should be applied because we’ve had no discussions.”

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