What Always Was, Now Is: Bill 38 and the Provincial Affirmation of Indigenous Jurisdiction Over Child and Family Services
Co-jurisdiction is here. For the first time since contact, since a clash of sovereignties, since a stolen generation, then another, and then another, there is hope that Indigenous peoples in British Columbia will find their children, keep their children, and make laws about their children that are respected by all governments.
On November 24, 2022, Bill 38: Indigenous Self-Government in Child and Family Services Amendment Act received Royal Assent. Bill 38 will amend several key pieces of provincial legislation, including the Adoption Act, the Child, Family and Community Service Act (“CFCSA”), and consequential amendments to the Infants Act and the Public Guardian and Trustee Act. As a result, inherent Indigenous jurisdiction over child and family services is now affirmed both provincially and federally.
What does Bill 38 mean for Indigenous peoples?
Bill 38 is specifically about Indigenous peoples’ inherent right to jurisdiction over children and families, but it is also more broadly about the revitalization of Indigenous legal orders.
Apart from all its specific amendments (discussed below), Bill 38 accomplishes five main things.
First, it offers Nations deciding whether to assert jurisdiction over child and family services through codification the assurance that their laws and legal orders will be paramount to provincial law.
Second, it allows flexibility for how Nations choose to exercise their sovereignty, whether by agreement, the exercise of law-making power, or a combination of the two.
Third, it provides some measure of certainty for Indigenous Nations in British Columbia in the area of child and family services in light of the ongoing constitutional challenge to An Act respecting First Nations, Inuit and Métis children, youth and families (“Bill C-92”), set to be heard by the Supreme Court of Canada next week.
Fourth, it opens the door to future legislative amendments that affirm long-standing Indigenous jurisdiction in other arenas.
Finally, it attests to the decades-long, tireless efforts of Nations, communities, leaders, elders, families, and advocates who never gave up and never lost sight of Indigenous communities’ most precious and sacred resource—children.
What is unique about Bill 38?
The first change we see is to definitions under the Adoption Act and the CFCSA. Archaic terms like “Indian band” and “aboriginal community” are replaced with “First Nation,” “Indigenous community,” and “Treaty First Nation.” The terms “Indigenous peoples” and “Indigenous governing body” have been added with definitions harmonized with those Bill C-92 and the provincial Declaration on the Rights of Indigenous Peoples Act (“DRIPA”). The amendments also include an expanded set of criteria related to a child’s Indigenous identity that remove reliance on Indian Act registration and affirm the ability of Indigenous children, parents, and communities to determine membership and belonging.
In several instances, the phrase “consult and cooperate” replaces the word “involve”. This change emphasizes that a central purpose of the amendments is to increase the Province’s responsibility to meaningfully engage with Indigenous communities, marking a shift from a regime that is colonially and externally imposed on Indigenous families to one that is determined with the appropriate respect for Indigenous sovereignty.
Here are some key amendments to the Adoption Act:
- Affirmation of self-government. A new principle – the “self-government principle” – is codified, which requires that, where an Indigenous child’s legal guardian is the state, the Adoption Act must be interpreted and administered in accordance with Indigenous self-government, as recognized and affirmed by section 35 of the Constitution Act, 1982 and by UNDRIP.
- Free, prior and informed consent. A new requirement that the consent of the applicable Indigenous governing body be sought prior to the adoption of any Indigenous child who is in care (or who has been placed for adoption by an extraprovincial agency).
- Shared decision-making. A new division is created titled “Agreements Respecting the Declaration on the Rights of Indigenous Peoples Act”. The provisions contained in this division align the Adoption Act with sections 6 and 7 of DRIPA by setting out a framework for the shared exercise of statutory power, through “decision-making” and “statutory power” agreements, between the Province and an Indigenous governing body.
- Obligations on service delivery staff. Service delivery staff, including “child protection” workers, have a positive obligation not only to be aware of a child’s Indigenous identity but also to determine whether there is an Indigenous authority exercising jurisdiction in relation to the child.
- The best interests of Indigenous children are uplifted in three ways. First, the unique interests of Indigenous children are recognized in a new set of factors to be considered when assessing the best interests of an Indigenous child, such as cultural continuity, Indigenous identity, community and familial connection, and customary planning. Second, considerations related to substantive equality are included to ensure children do not experience discrimination related to their Indigenous identity, ancestry, family status, etc. Third, the cultural rights of Indigenous children are protected and promoted with the obligation of the director, or adoption agency, to make all reasonable efforts to obtain and preserve information relating to a child’s Indigenous cultural identity and community and to share that information with the child or the child’s adoptive parent.
Here are some key amendments to the CFCSA:
- Affirmation of self-government. The “self-government principle” is also included in the amendments to the CFCSA.
- Indigenous law is law. A new section of the Act “Part 1.1 – Introductory Provisions Relating to Indigenous Laws and Indigenous child” explicitly affirms that Indigenous laws have the force of law in British Columbia, and grants Indigenous laws paramountcy over the CFCSA to the extent of any conflict or inconsistency.
- A new set of obligations on the director to determine whether there is an Indigenous authority and/or Indigenous laws with jurisdiction respecting an Indigenous child.
- Disputes over jurisdiction cannot affect a child’s care. Any disputes about the application of Indigenous laws are to be resolved through consultation and cooperation (including through mediation or another form of alternative dispute resolution), and there is now an onus on the director to ensure any disputes do not result in a disruption of services to the child.
- Taking back jurisdiction. Provincial courts will only have the jurisdiction to resolve a legal dispute arising under an Indigenous law if the Indigenous law provides for that jurisdiction. The procedures related to an application for a court order that an Indigenous law does not apply to a child expressly grant party status to a child’s Indigenous community, which ensures that the community is in a position to make representations respecting customary and traditional ways of caring for children in service of the child’s best interests.
- Indigenous authorities occupy meaningful space. New provisions that provide for Indigenous authorities to receive and respond to reports that a child is in need of protection, and to require that the director withdraw proceedings under the CFCSA when an Indigenous authority intends to provide services to an Indigenous child. The director’s withdrawal will cancel any interim, supervision, or temporary custody orders respecting the child.
- Shared decision-making. Like the Adoption Act, a new division is created respecting “decision-making” and “statutory power” agreements between the Province and an Indigenous authority, in accordance with the framework provided in section 7 of DRIPA.
- Best interests of Indigenous children. The amendments include the principles of the best interests of Indigenous children, substantive equality, and cultural continuity.
- Poverty does not equal apprehension. The amendments include a clause clarifying that poverty, the lack of adequate house or infrastructure, and the state of health of a parent does not make a child “in need of protection”.
- Indigenous Child Welfare Director. The CFCSA amendments create a new Indigenous Child Welfare Director have the same role and scope of authority as other directors but with the additional responsibility of providing advice and guidance to other directors to ensure that Indigenous children and families are being properly served under the CFCSA. This position will be filled only through consultation and cooperation with Indigenous communities.
Co-development of regulations. The Order in Council giving Bill 38 Royal Assent gives effect to 68% of Bill 38’s sections. The remaining provisions of Bill 38 are expected to be brought into force through a series of regulations. British Columbia has committed to the co-development of these regulations with Indigenous Nations.
Drafting child and family services laws. Now is a good time for Nations to assert jurisdiction and begin the process of drafting a child and family services law that reflects longstanding legal orders.
Drafting shared decision-making agreements. Nations can also choose to enter section 6 or section 7 DRIPA agreements for co-management in the delivery of child and family services.
We share a common goal with our clients: that Indigenous Nations establish and retain jurisdiction and control over their children so that, one day soon, there are no more Indigenous children in the provincial child welfare system.
We are in a new era and there is work to be done. We are with you and we remain hopeful.
Our Indigenous Law Group works in the area of child and family services to provide our Indigenous clients with the best possible service in a manner that best reflects who our clients are. If you have any questions or comments relating to what we discussed above, feel free to reach out to Merle Alexander, Nick Smith, or Hannah Park Roche from our Indigenous Law Group.