ABPC: Federal Legislation Takes Precedent Regarding Notice in Indigenous PGO Matters

Our firm has written extensively on matters involving child apprehension and child protection of Indigenous and First Nations children in the past. Today we will focus on a recent decision of Alberta’s Provincial Court, which has provided much-needed guidance with respect to conflicting notice provisions relating to Permanent Guardianship Orders (PGOs) under provincial and federal law.

Background to the Director’s PGO Application

The matter at hand involved a teenage boy who had been in the care of the Director of Children’s Services in Alberta for 740 days. The boy’s mother had adopted him at birth from an Inuit family in the Northwest Territories, and had struggled with raising him since that time. She suffered from addiction and mental health issues and as a result could not provide a safe environment for him or his siblings. The boy’s grandmother, his other guardian, had taken him in intermittently throughout his life. However, she was unable to ensure his safety, particulaly as he got older and developed addiction and behavioural issues of his own. He had also been diagnosed with various mental health issues such as bipolar disorder, ODD, ADD and FASD. Rather than following medical adivce, the boy chose instead to self-medicate with drugs and alcohol. He had also become involved in gang activity. The grandmother was the one who had initially reached out to the Director for assistance in caring for the boy when she became unable to manage him. During his time in temporary care, she had gone to extensive lengths to maintain the child’s connection to herself and his siblings.

The child’s mother opposed the PGO application, however, she was unable to provide sufficient information as to how she would be able to provide adequate care for him. The grandmother expressed a deep commitment to her grandson and his wellbeing. Her response to the PGO application was a strong concern that a PGO would result in a loss of contact between the boy and his family members. They were all quite bonded, and she wanted to ensure they maintained regular contact.

The boy himself opposed the PGO application, again out of a concern he would lose contact with his family, and control over his own decisions.

Conflicting Notice Requirements

The key issue, in this case, came down to notice to the Inuit settlement where the child was born. The boy’s counsel challenged the motion for summary judgment, saying it would be inappropriate to move forward without adequate notice as directed in the federal An Act respecting First Nations, Inuit and Metis children, youth and families, which had come into force January 1, 2020.

The provincial legislation was narrower, as provided under s. 107 of the Children, Youth and Family Enhancement Act (“CYFEA”), which required notice only in matters involving a “First Nation Individual” and “a member of a band”. Under the provincial legislation, notice is not required in cases involving Inuit or Metis children. The court considered this discrepancy, and invited the parties’ input on whether the federal Act applied in this case, and also notified the Attorneys General of both Canada and Alberta.

The Attorney General for Alberta responded by saying notice was not required to the Inuit settlement, as the federal Act did not apply until an Indigenous governing body had been notified it was acting on behalf of an Indigenous group or community under s. 12 of the CYFEA. The court responded as follows:

Respectfully, I do not agree. Section 12 requires notice to be given to an Indigenous governing body in matters affecting an Indigenous child. There is no requirement that the Indigenous governing body give any notice to anyone of their intention to act on behalf of a group, community or people. If the Indigenous governing body wishes to participate, it would need to satisfy the Court that it in fact is authorized to act on behalf of the group, community or people. Section 20 of the federal Act requires the Indigenous governing body to give notice to the Minister if it wishes to exercise its legislative authority. This is significantly different then giving notice to the Indigenous governing body and seeking any input they wish to make as it relates to an Indigenous child in child protection proceedings.

Accordingly, it is my view the provisions of section 107 of the CYFEA remains underinclusive where there is an Inuit or metis child, and the provisions of the federal Act are paramount. This appears to be an oversight on the part of the legislature.

As this was the first case to examine the legislation and how it is to be interpreted, there is room for change as more cases go before the courts and appeals are heard. However, as the first case to be heard on the matter, the law in Alberta, for now, is that the federal legislation will be viewed as paramount in matters where it conflicts with the provincial CYFEA. The more inclusive notice provisions set out in the federal Act should be applied in matters going forward.

It remains to be seen whether the provincial legislation will be amended to include the broader requirements set out in the federal Act. However, if courts continue to follow the precedent set in the case at hand, it seems inevitable.

The family law lawyers at Mincher Koeman regularly work with First Nations on child protection matters. We are passionate advocates of the rights of First Nation children to maintain cultural and community connections throughout the child welfare process. We understand how the system works, and we know how to effectively challenge or advocate at each stage. If your family has become by the child intervention process, or you are seeking guardianship of a child who is the subject of an intervention, please contact our office to discuss your options by calling us at 403-910-3000 or by contacting us online.