Bill C-92, An Act respecting First Nation, Inuit, and Metis children, youth and families was passed by the federal government to empower Canada’s Indigenous and First Nation communities to take control over their own child welfare systems. This was done in large part to address decades of mistreatment of Indigenous children. Indigenous children have been marginalized through both the residential school system as well as the child intervention process, through which scores of children have been removed from their communities and forced to assimilate to Caucasian foster families.
This issue is of particular importance in the province of Alberta. Just this past November, the Edmonton Journal reported that the province was on track to record a record-breaking number of deaths among Indigenous children and young people in the child intervention and youth support system. Alberta’s Children’s Services reported that between April and October 2021, 30 children or young adults had died, with four more deaths reported by November 21st. Before the end of the year, the total had already matched the number of deaths in the same group for all of 2020.
Given these statistics, many First Nations in the province have been looking to expedite the process of moving control over child welfare matters from the province to individual Nations. The first step in the process is creating a law that will govern child welfare within the First Nation community and giving notice of the community’s intention to take jurisdiction over the matter. From that point, the community has one year to negotiate a three-party agreement with the provincial and federal government to transfer files to the Nation and establish specifics around funding. If an agreement has not been reached after one year, but good faith efforts have been made to do so, the law passed by the respective Nation is meant to supersede any provincial or territorial authority.
Since Bill C-92 came into effect, a number of Alberta’s First Nations have taken steps to transfer oversight back to their local communities.
In late 2021, a group of three small First Nations in Northern Alberta voted in favour of a new law that will form the basis of the group’s eventual control over child welfare matters affecting their communities. Awas’ak Wiyasiwewin, which is Cree for “Children’s Law”, was passed with an overwhelming majority vote of 616 to 70. The three Nations involved are Loon River First Nation, Lubicon Lake Band, and Peerless Trout First Nation are all part of the Kee Tas Kee Now Tribal Council. These Nations have taken steps that they hope will help them ensure that the children of their communities, both on and off-reserve, will receive care that emphasizes community oversight and follows their traditions and customs.
The law puts a great deal of focus on prevention by providing for at-risk families from prenatal care through to fostering situations, if necessary. The various programs will be overseen by the newly-created Office of the Onikanew, which translates to “he or she who leads”. According to Gladys Okemow, Chief of the Peerless Trout First Nation, the hope is that the law will empower families and prevent the need for intervention whenever possible:
Under this new system, we will focus on prevention. We will identify those that are at risk and we will provide services to the parents, children, (and) families, and support them to ensure that no child is ever removed from their family except as a last resort.
The law also creates a new dispute resolution process that allows child welfare matters to be determined by a Tribunal of community members. The Tribunal will hear disputes and provide recommendations to the Office of the Onikanew. The process is designed to make the hearing of disputes fairer by eliminating the inherent power differential that the court process can present and to keep decisions pertaining to local children within the community. To date, the group has said that negotiations with the province have been progressing well.
Unlike the group above, another Alberta First Nation is reporting difficulty in the process of taking control over child welfare matters. According to Darin Keewatin, executive director of the Asikiw Mostos O’pikinawasiwin Society, the province has been unresponsive and uncooperative in the process started by the Louis Bull Tribe in October of 2020.
According to Keewatin, while the Nation’s law came into effect in October of 2021, the province has so far refused to enter into an agreement to transfer jurisdiction over child welfare matters. He said the province took control over negotiations regarding the agreement and demonstrated little respect for Nation’s authority over these matters. The province issued a statement in response to Keewatin’s claims through the office of Children’s Services Minister Rebecca Schultz:
Throughout trilateral discussions with Louis Bull Tribe and the federal government, our primary goal continues to be ensuring the best possible care for Indigenous children and youth. A co-ordination agreement is critical to articulate roles and responsibilities to ensure service gaps are not created and that children are not put at risk.
For now, Keewatin continues to push for an agreement. However, given the Alberta government’s response to date, he remains skeptical that the law is doing what the federal government intended.
The family law lawyers at Mincher Koeman regularly work with and represent 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 been affected 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 contacting us at 403-910-3000 or online.
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