(Editorial) Indigenous Child Welfare Legislation: A Historical Change or Another Paper Tiger?

For millennia before colonization, First Nations laws regarding children flourished across what is now known as Canada. These laws were ignored by colonial forces who imposed their own version of child welfare on First Nations families. This resulted in what the 2015 final report of the Truth and Reconciliation Commission of Canada (2015) called “cultural genocide.” The reassertion of First Nations laws that are derived through community consultation processes presents a promising alternative to the reliance on provincial or territorial laws that apply today. On November 30, 2018, Minister Philpott of Indigenous Services Canada, accompanied by leaders from the Assembly of First Nations, Métis National Council, and Inuit Tapiriit Kanatami announced that the federal government would table historic “Indigenous” child welfare legislation in the House of Commons, early in 2019 (Indigenous Services Canada, 2018). It seems like good news but will it really build healthy families and, over time, reduce the over-representation of First Nations children in care or is it another colonial paper tiger? The answer is – it depends. But red flags are already flying, such as the pan-Indigenous approach, the lack of a clear funding base, and a lack of attention to the child welfare needs among and between First Nations, Métis, and Inuit. On its face, the proposed legislation seems to respond to calls by First Nations to recognize their child welfare laws (Royal Commission on Aboriginal Peoples, 1996; McDonald & Ladd, 2000) but the federal proposal is for “Indigenous” legislation not “First Nations” legislation. The problems with this approach are not just nomenclature, there are vast differences in the way First Nations, Métis, and Inuit child welfare are structured, legislated, and funded. Creating one piece of legislation to cover this broad landscape presents the real risk that the legislation will be so watered-down that it does not meet anyone’s needs. There are over 100 First Nations child and family service agencies in Canada delivering services on- and, in some cases, off-reserve (First Nations Child and Family Caring Society of Canada, n.d.). As a funding condition to deliver services on-reserve, the federal government requires First Nations agencies to operate under provincial or territorial child welfare laws. Where First Nations agencies serve off-reserve populations, funding comes from the respective province or territory. First Nations not served by a First Nations child and family service agency receive child welfare services from the respective province or territory (Blackstock, 2017). Meanwhile, Inuit and Métis child welfare is delivered differently. For Inuit living in Nunavut, child welfare services are delivered by the territorial government, whereas provincial child welfare authorities deliver services to Inuit living in other areas of Canada. Other than the Nunavut government, there are no Inuit agencies that provide the full range of child welfare services. Métis agencies exist in some parts of the country. These agencies provide a range of child welfare services and operate pursuant to provincial or territorial laws and funding regimes. There are no direct federal child welfare programs for Inuit and Métis. The pan-Indigenous nature of the proposed legislation raises concerns that it will not adequately reflect Canada’s funding obligations to First Nations or the significant expertise and experience that First Nations child and family service agencies have developed over the past 40 years. Take, for example, the need for federal legislation to preserve the hard-won equitable funding arrangements the Canadian Human Rights Tribunal (First Nations Child and Family Caring Society of Canada et al. v Attorney General of Canada, 2016 CHRT 2, 2016 CHRT 10, 2016 CHRT 16, 2017 CHRT 14, 2018 CHRT 4) ordered Canada to provide to First Nations …