How an overhaul of the child welfare system could keep more Mi'kmaw youth close to home

Federal funding and provincial government co-operation are key to making sure a major overhaul of Canada's child welfare system becomes a reality in Nova Scotia, says an assistant professor at Dalhousie University. 

Bill C-92 — An Act Respecting First Nations, Inuit and Métis Children, Youth and Families — became law in January 2020 to reduce the number of Indigenous children in foster care by allowing communities to create their own child welfare systems.

"One issue that those of us who've been looking at this ... are concerned about is just ensuring that there's going to be adequate funding and support for these things and that provinces just don't say, 'Oh, it's a federal thing,'" Naiomi Metallic with Dalhousie's Schulich School of Law told CBC Radio's Information Morning this week.

Many see the current overrepresentation of Indigenous youth in foster care as a modern-day residential school system, and there have been renewed calls for meaningful change as Canadians reckon with the lasting trauma of that system.

Host Portia Clark spoke with Metallic about what the new legislation means for Mi'kmaw children, families and communities. Their conversation has been edited for clarity and length.

What does this bill do, Prof. Metallic? 

The first thing it does is it sets forward a set of national standards that are to guide the delivery of child welfare services across the country. Before this, it's all been provincial standards, and they vary in terms of the level of protection or special protections they provide to Indigenous children and families and communities.

The second thing that it does is it recognizes the inherent right of Indigenous communities to govern over the area of child and family services, so it sets out a process that allows Indigenous communities to take over legislating in the area of child and family services and also adjudicating in the area. 

When you say Indigenous communities, do you mean whole First Nations or bands? 

The language used in the act is Indigenous governing bodies, and that allows for some flexibility because currently in Canada, many communities are sort of stratified along bands but those are not traditional. These are Indian Act created structures and many communities are working with each other on various projects to sort of ... reconstitute themselves to look like their original nations. 

Often it's felt that in projects around self-government and Indigenous laws, working together in greater collectives is a good thing so the law allows for working at sort of these broader levels and creates flexibility so groups could be working as all 13, for example, in Nova Scotia or other side groups. 

Essentially, does it allow them to come up with some kind of bill for themselves over how foster care or care of children who need extra help for a given time, temporarily or for longer term, how that would work? 

That's exactly what it allows communities to do, is to develop their own laws and standards with respect to children in need of protection, prevention, addressing families that may be at risk of having a child taken into care. 

The only sort of caveat to that that the bill puts in place is that the standards can't be deviating from the national standards that are set. But the national standards are all about ameliorating and addressing long-standing issues to make sure that Indigenous children stay in their communities so it's unlikely that many Indigenous communities would actually deviate from that. The Charter of Rights and Freedoms has to be respected as well, but there's also flexibility in how the charter might apply to an Indigenous community versus, let's say, the provincial government. 

What would be an example of a big change that an Indigenous community might make in rewriting its own child welfare laws with the Indigenous perspective in mind and the welfare of an Indigenous child in mind?

There's been a lot of critique over the years since, you know, provincial child welfare legislation has been applied to Indigenous communities that has led to ... this overrepresentation of Indigenous children. And also the argument that Euro-Canadian standards about the family and child protection do not necessarily reflect or are similar to Indigenous values. 

The concept of the nuclear family, that a family is mom, dad and 2.3 kids or something like that.... I, certainly from the Mi'kmaw perspective, see people playing a role in taking care of children as being much broader than just the mom and the dad, right? Aunties, uncles, grandparents, neighbours, you know, the communities seem to have a role, so Indigenous standards might reflect an understanding of a broader sense of community. 

Another one is in the Canadian system, adoption usually means sort of a severing or cutting of all those previous familial ties. Most Indigenous communities, although a grandma might raise a child, they're not going to be seen as losing that connection with their original family.

I think also taking into account current realities that Indigenous communities face because of colonialism, like how underfunding of housing and social assistance and other things impact on communities.... I think these would all be more responsive to the realities of Indigenous communities and are also their world views. 

Would this mean that more children would be likely to be placed with an auntie or someone in the immediate or extended family instead of going into foster care and then never coming back? 

That's exactly the purpose, and that's actually the purpose of the national standards, too. They actually require social workers to look at that as options, and one would expect that in the Indigenous laws that get developed — and there's already been two that have become law so far — that would be the emphasis as well, and also prevention.

Under the current system for Indigenous child welfare, if the child goes to foster care, stays there for a while, is it considered to be in the best interest just to remain in that foster care, even if it's away from their culture and community?

That's been a big part of the problem. It actually gets called attachment theory. There was a Supreme Court of Canada decision from the 80s called Racine that said that when you're balancing the best interest of the child, if it comes to a matter of balancing attachment to foster family, let's say if they've been with the foster family for several months, versus the connection to culture and language and community, they say that actually attachment is the more important thing for children to have. 

But there's been a lot of social studies that have looked at this further and question that. Even the experience of the Indigenous child at the centre of Racine by 12 or 13 [years old], her relationship with her foster family broke down and then she just bounced around until she was an adult in child care. The national standards put an emphasis on this and ensure the Indigenous laws will, too, about those connections to community and keeping the child within the community, you know, as much as possible. 

I understand Quebec has challenged this law, though. On what grounds? 

I'm actually counsel for one of the intervening parties in that case, but Quebec is challenging on constitutional grounds. One [argument is] that the federal government cannot pass national standards with respect to Indigenous people that might have an effect on how provincial governments carry out some of their services. But we have other examples where that is the case, so I don't know about that one.

And the other argument is that Canada should not be able to recognize Indigenous inherent jurisdiction without the say of the provinces, and that's, I think, on shaky ground as well. But we'll wait and see what the Quebec Court of Appeal thinks about that. They're hearing it in September.