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An Act Respecting First Nations, Inuit and Métis children, Youth and Families: A Step Forward, But is it Enough?

3 minute read
Also authored by: Makayla Todd

For over a century, our government, through the force of law, committed atrocities against Indigenous persons, families and communities. The full extent to which Canada’s assimilative policies have affected Indigenous peoples is still very much unfolding.

As legal professionals, we must acknowledge that we are operating within a system that has been responsible for immense suffering. This legacy demands us, as participants, to prioritize accountability and action.

In recent years, there has been a shift toward an era of reconciliation, significantly driven by the Indian Residential Schools Settlement Agreement, the largest class action settlement to date in Canadian history. As a part of the settlement, the Truth and Reconciliation Commission was established.

The Truth and Reconciliation Commission (‘TRC’) released 94 Calls to Action, which provides a roadmap for meaningful change— yet the implementation of these recommendations remains slow.

Call to Action 4, calls upon the Federal Government to enact child-welfare legislation that affirms the right of Aboriginal governments to establish and maintain their own child-welfare agencies. In response to this call, the Federal Government gave Royal Assent to An Act respecting First Nations, Inuit and Métis children, youth and families in June 2019.  The Act was affirmed by the Supreme Court in 2024 and determined to be constitutionally valid.

The three stated purposes of the Act are:

  1. Affirm Indigenous peoples’ inherent right of self-government, which provides jurisdiction for Indigenous communities to govern their own child and family services.
  2. To establish national requirements for child and family services that the communities must adhere to.
  3. To take steps in furtherance of Canada’s commitment to implement The United Nations Declaration on the Rights of Indigenous Peoples resolution, in response to TRC’s call for reconciliation efforts.

Undoubtedly, the passing of the Act is an unprecedented step toward reconciliation, however, we must ask ourselves, is it enough?

Many scholars have pointed out several pitfalls in the Act. In their report, “Does Bill C-92 Make the Grade?, the Yellowhead Institute, an Indigenous-led research and education centre based at Toronto Metropolitan University,  highlighted significant shortcomings that hinder meaningful progress.

Notably, they point out that the Act is sorely lacking any concrete commitment to provide adequate funding for Indigenous Governing Bodies wishing to assert jurisdiction over their own child and welfare services.

It is one thing to simply decree that a community has the power and autonomy to govern its own affairs. However, it is entirely different when communities are provided appropriate resources to exercise their recently affirmed rights. One approach moves toward reconciliation, while the other remains insubstantial.

To actualize the intended purpose of the Act, provincial governments and pre-existing social service agencies must share their resources to help Indigenous Governing Bodies build the necessary infrastructure to support their communities. Without this collaboration, the Act remains an empty promise.

Lerners LLP recognizes our responsibility as participants in the legal system to respond to Call to Action 27 which calls “upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations.

Through our reconciliation efforts we must remember that true reconciliation can neither be comfortable nor convenient.

In solidarity,
Makayla Todd

On behalf of National Indigenous History Month Sub-Committee

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