Somehow the final passage ("royal assent") of this bill in Canada
slipped our attention back in June. Initially, we saw it referred to as a
"Canadian ICWA", but it seems fair to say that it doesn't quite achieve
that level of protection for Native children
and families. If nothing else, it illustrates just how differently the
Canadian government engages with the tribal nations within its borders
compared to the U.S.. We want to add a
large caveat, which is that none of us are experts on Canadian law or child welfare.
However, those that are put together a really helpful publication which
is available here, and is well worth your read (it made us think about
if ICWA would get passing grades):
From the Jurisdiction section of the report:
Why We Give the Bill a ‘D’ on this:
IN A HISTORIC FIRST FOR CANADA, the Bill purports to recognize
Indigenous peoples’ inherent jurisdiction. For example, section 8(a) of
the Bill affirms “the rights and jurisdiction of Indigenous peoples in
relation to child and family services”. This positively
worded language is also noted in the Bill’s introduction and summary.
Similarly, section 18(1) states 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.” Section 18(2) affirms that this right
includes the right to “provide for dispute resolution
As there are no section 35 cases that recognize an inherent right of
self-government for Indigenous Peoples or that have recognized an
Aboriginal or Treaty right over child and family services law-making,
this is a significant step forward.
This is not, however, a recognition of jurisdiction that removes all
federal or provincial oversight, power or intervention. By recognizing
jurisdiction over child and family services as a section 35 right, the
federal government immediately re-asserts its
power to unilaterally infringe or limit that right, a power upheld by
court cases such as Sparrow. The legislation sets legal limits in terms
of Indigenous laws being subject to Charter and Canadian Human Rights
Act and the BIOC. It also sets practical limits
in terms of the virtual necessity of negotiating coordination
agreements with the federal and provincial governments, and in the
glaring absence of any provisions for funding. At best, this could be
interpreted as an acknowledgment of concurrent (or shared)
jurisdiction, a matter on which Bill C-92 should be more clear.
Further, section 23 states Indigenous laws only authoritative if they
can be applied in a way that “is not contrary to the best interests of
the child.” As previously stated, Indigenous laws have upheld the best
interests of Indigenous children for thousands
of years. The concern about this limit is how the BIOC doctrine has
been interpreted and applied by courts, non-Indigenous governments and
decisions makers to apprehend Indigenous children and separate them from
their families, communities and territories
for the past 50 plus years.
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