Are Indigenous communities being set up to fail with the transfer of control of child welfare services?

If Ottawa wants Indigenous communities to succeed with child protection, it must provide adequate funding and safeguards against liability.

by?Cindy Blackstock, Nico Trocmé

Is Ottawa negotiating the conditions for the transfer of child welfare to Aboriginal communities to succeed, or programming their failure in advance with half-baked measures?

The federal Act respecting First Nations, Inuit and Métis children, youth and families (also known as Bill C-92) establishes a legal framework and standards for Indigenous control over child and family services. However, the Act does not guarantee adequate funding for this system reform, which risks turning promise of self-government into government off-loading.

First Nations chiefs appeared to recognize the flaws in the $47.8-billion agreement this week, voting down a resolution to accept it in whole at a special meeting of the Assembly of First Nations.

State removal of First Nations children from their families has been a hallmark of Canadian colonialism for centuries. Residential schools morphed into the current system of child welfare, one that removes children at 17 times the rate of non-Indigenous children. The removals are fueled by the intergenerational trauma, addictions, poverty and domestic violence that flow from residential schools and the systemic underfunding of First Nations children’s services. Their cumulative effects are devastating for the children, their families and their communities.

Bill C-92 creates opportunities for Indigenous communities to reverse this trend, but the right conditions must be in place to support this transfer of authority. Two legal and policy issues carry a significant risk of setting up Indigenous communities for failure.

Root causes must be addressed alongside child welfare

First, at the same time as the federal government reaffirms First Nations laws relating to child welfare, it must provide adequate and sustained funding to address intergenerational trauma, addictions, poverty, inadequate housing and domestic violence.

Funding the Indigenous child welfare system without dousing the fires that fuel the overrepresentation is a recipe for failure. Canada has historically underfunded child welfare and related public services for First Nations communities, and it is now seeking to escape accountability under binding Canadian Human Rights Tribunal orders that force it to fund equitably.

Repeated Supreme Court decisions and the United Nations Declaration on the Rights of Indigenous Peoples require Canada to negotiate fairly and transparently with Indigenous groups — a standard that the federal government has frequently failed to meet. Significantly, the Quebec Court of Appeal found the federal and provincial governments liable for providing inadequate funding to policing services run by a First Nation in 2022. It held that the governments had failed in their constitutional duty to uphold the “honour of the Crown” which requires fair, transparent and principled dealings with Indigenous Peoples. The Supreme Court of Canada heard arguments in this matter in 2024 and it’s expected that the final decision will have implications for federal funding in other areas, including First Nations child and family services.

First Nations child welfare will not be immune from failings

Second, the Government of Canada must partner with First Nations and other Indigenous communities to ensure that they can meet the potential liabilities that come with providing child and family services. Child welfare run by the state and by organizations such as churches have incurred major damages for harm to children in their care.

As Indigenous communities provide child welfare services, they must be safeguarded against absorbing the liability arising, in whole or in part, from others. The promise of self-determination to look after Indigenous children cannot become another government offload.

Moreover, the harms arising from wrongful conduct may be greater in the case of Indigenous children than of others. Intergenerational trauma and other impacts of colonialism may produce a preexisting vulnerability or lesser capacity to absorb fresh wrongs. Significantly, civil liability for negligence obliges the wrongdoer to make the victim whole. This requirement applies where the victim is unusually vulnerable and thus experiences greater than ordinary harm. The upshot, then, is that First Nations assuming responsibility for child and family services may find themselves liable for harms intensified by the past conduct of Canadian governments.

One solution to explore is a role for the Government of Canada as an insurer of last resort for large-scale liabilities for Indigenous communities engaged in child protection.

The long history of discrimination against First Nations children

The move to enable Indigenous communities to take charge of their child and family services holds much promise. Appropriate financial and legal arrangements are needed, though, to ensure that what Canadian governments hold out as a cup of reconciliation does not prove to be a poisoned chalice.

The “Final Settlement Agreement on Long-Term Reform of the First Nations Child and Family Services Program” recently drafted by the Government of Canada with the Assembly of First Nations, Chiefs of Ontario and Nishnawbe Aski Nation holds the same risks as Bill C-92. While it includes some positive elements, it falls short of respecting First Nations decision-making and adequately funding the services transferred to First Nations and the related liability.

After numerous apologies and paying over $23 billion in compensation for the children who lost their lives or their childhoods due to Canada’s discrimination, it is time the federal government learned its lessons. Trying to treat First Nations on the cheap and trample on their rights is fools’ gold. Ensuring non-discrimination and upholding United Nations Declaration on the Rights of Indigenous Peoples provides a better future for First Nations children and for the country as a whole, too.