How to fix child welfare legislation
Cindy Blackstock says federal Indigenous child welfare legislation is full of loopholes.
There is something fitting about holding a meeting with Cindy Blackstock inside Union Station.
Blackstock, the executive director of the First Nations Child and Family Caring Society of Canada, is constantly in motion. If she’s not lecturing across the country — she was in Toronto Thursday to speak at the University of Toronto — then she can be found in communities or in a tribunal courtroom, defending the rights of First Nations kids.
She is the ideal person to give a hard critique on the new Indigenous child welfare legislation, Bill C-92, that is rapidly moving through Parliament.
“It’s important we get this right. I’ve never been one who is OK with mediocre for our kids,” said Blackstock, who has spent over 10 years fighting before the Human Rights Tribunal to force Ottawa to provide First Nations kids the same social and health services as all other children.
As it stands, the bill is a mixed bag.
The first issue is that the bill does not go far enough to hand over power to Indigenous communities to decide the fate of their own children.
The federal government says, under the new bill, in case of conflict between Indigenous law and Crown law, Indigenous law prevails.
But Blackstock disagrees, saying at first glance the bill appears to be that way, but closer inspection reveals hidden loopholes that undermine Indigenous jurisdiction.
Blackstock isn’t the only one concerned. She points to Ryerson University’s Yellowhead Institute’s report on the bill. Yellowhead asked five top legal minds to digest the legislation and grade it. They gave the bill a “D” on jurisdiction.
They say while the bill purports to uphold Indigenous peoples’ inherent jurisdiction, “there are exceptions — especially around the application of the Charter of Rights and Freedoms and interpretation of the ‘best interest of the child’ — that potentially force Indigenous governing bodies to serve as delegates of the federal government.”
The bill does little to lift Indigenous kids out of the jurisdictional nightmare that they are often in — pulled between various governments and agencies.
Clarity on jurisdiction is essential, says Blackstock, but is not on its own enough.
“We understand, those of us who have been doing this for awhile, there are some families that have a lot of trauma. There are children who will have to be in child welfare and we’ll have to engage in multi-generational, multidisciplinary treatment for that family to try and stabilize them and get them in a place where they are healthy and get them to care for their kids,” said Blackstock.
“We can’t just assume the magic ticket is taking over jurisdiction. It is not that simple.”
Another problem with the bill is that the legislation fails to guarantee adequate and consistent funding to address the inequities that underlie the child-welfare crisis in Indigenous communities.
Without this, what often sends children into state care in the first place will never disappear.
We know that to grow healthy children, families need safe housing free of mould, basic plumbing and clean, drinkable water. They need reliable electricity, access to health care and education, nutritious food and a foot in the job market. Redressing Ottawa’s longstanding failure to meet these basic needs in Indigenous communities is a prerequisite for ensuring child welfare.
A good place to start would be the adoption of the Caring Society’s Spirit Bear Plan. It asks Canada’s Parliamentary Budget Officer to cost out the shortfalls in all federally funded public services provided to First Nations children, youth and families concerning education, health, water, housing and to propose solutions.
Today, there are more Indigenous children in government care than at the height of the shameful Indian Residential School era. This won’t change until we tackle the root causes.
This legislation is a vital opportunity to fix a tragic and long-standing injustice. But it must be better.
Blackstock’s Caring Society and the legal minds at Yellowhead have both put forward suggestions and position papers on how the bill can be amended fast to make sure we don’t fail another generation of children.
“What I want is to push through the best bill we can,” Blackstock said. “If …Canada adopts mediocre then that is Canada’s business and we’ll deal with it in court. But I’m not going to support mediocre.”