“An Act Respecting First Nations, Inuit and Metis children, youth and families” (the “Act”) came into force on January 1, 2020. Its first enumerated purpose is to “affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services.” To breathe life into this purpose, the Act contains provisions dealing with “Jurisdiction – Child and Family Services” and “Laws of Indigenous Groups, Communities or Peoples.” For example, section 18 provides that:
“The inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982, includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority.”
The importance of this section cannot be understated. It explicitly provides that Aboriginal peoples, as defined by the Constitution Act, 1982, have an inherent right to self-government which includes jurisdiction over child and family services. In other words, Parliament has once again recognized that Indigenous peoples have a right to self-determination in providing care for their children.
Continuing, section 20(1) then provides that: “If an indigenous group, community or people intends to exercise its legislative authority in relation to child and family services, an Indigenous governing body acting on behalf of that Indigenous group, community or people may give notice of that intention to the Minister and the government of each province in which the Indigenous group, community or people is located.” The key words here are “may give notice” because it gives Aboriginal peoples the choice of notifying the Minister or provincial government(s) and does not place an onus on them.
If the Aboriginal community notifies the Minister and provincial government(s), section 20(2) then allows Indigenous governing bodies to request to enter into coordination agreements with those parties. These coordination agreements would be in relation to the exercise of legislative authority, respecting, among other things:
- The provision of emergency services to ensure the safety, security and well-being of Indigenous children;
- Support measures to enable Indigenous children to exercise their rights effectively;
- Fiscal arrangements, relating to the provision of child and family services by the Indigenous governing body, that are sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities and to support the capacity of the Indigenous group, community or people to exercise the legislative authority effectively; and
- Any other coordination measure related to the effective exercise of the legislative authority.
Once an Indigenous community enacts a law it then has, during the time that it’s in force, the same force as a federal law. This means that the Indigenous law will be given priority over provincial child and family services laws. In sum, Indigenous communities and groups can develop child and family services policies and laws based on their unique histories and cultures and to find their own solutions depending on their circumstances.
The Act contains other provisions outside of the jurisdiction for child and family services. For example, it contains provisions dealing with the best interests of Indigenous children and the factors for determining that.
Paquette & Associates assist Indigenous persons and/or communities with:
- Exercising your community’s inherent right to self-government in relation to child and family services;
- Developing your community’s Indigenous laws in accordance with section 18;
- Entering into coordination agreements with the Minister and provincial government(s) under section 20; and
- Providing legal advice about the Act.