In March 2020, Cowessess First Nation members decided they want to assert their rights for their children and families in need of help under Canada’s landmark Bill C-92, which empowers Indigenous communities to reclaim jurisdiction.
Previously, the community (east of Regina) and every other First Nation in Canada was stripped of its decision-making power over children in care in 1951.
“This responsibility is a part of the long-term goal of controlling our own plan to self-government based on our Inherent Rights and Treaty relationship,” Chief Cadmus Delorme with the Cowessess First Nation said in a statement on Twitter on Monday.
“The coordination agreement is a transition plan to assure the transfer of jurisdiction is professional and at the pace of Cowessess First Nation.”
Cowessess is also the site of a former residential school where, last month, ground-penetrating radar detected an estimated 751 unmarked graves.
Although the community is the first to exercise this right, several other Indigenous groups have also notified the federal government that they intend to handle their own child and family service.
Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, called the act “a very important and historic piece” and would like to see more First Nations across Canada enact it.
“The key is whether or not the federal government is going to provide the resources that will be needed to ensure all the children see full benefit from that legislation,” she said.
Here’s what to know about Bill C-92, the act the First Nation used to regain control of its child welfare.
What is Bill C-92?
Bill C-92, also known as the ‘Act respecting First Nations, Inuit and Métis children, youth and families’ was passed in June 2019 but came into force on Jan. 1, 2020.
Under this law, Indigenous communities have the right to exercise jurisdiction over child and family services, based on their own history culture and law.
The jurisdiction is recognized as federal law and given priority over provincial child and family services laws.
The act allows Indigenous groups two options to exercise its jurisdiction.
Option one means Indigenous groups can exercise their jurisdiction, but their laws on child and family services do not trump federal, provincial and territorial laws.
Option two allows Indigenous communities to exercise their jurisdiction, but their laws on child and family services prevail over federal, provincial and territorial ones.
Why is it being used?
The aim of the bill is to reduce the number of Indigenous children in provincial care.
A child welfare system led by Indigenous communities is a departure from how Canada’s current system works, which sees provinces remove children from their caregivers and place them into a government-run welfare system.
The current federal system has been widely criticized for the inability to address the overrepresentation of Indigenous children in care and for not meeting the cultural needs of those children.
For example, 2016 federal data found over half of the children (52.2 per cent) under age 15 in foster care in Canada were Indigenous, despite Indigenous children only accounting for 7.7 per cent of the child population.
The history of Indigenous children in care stretches back to the forceful placement of kids in residential schools and the Sixties Scoop, where thousands of Indigenous children were taken from their homes by child welfare service workers between the 1960s and 1980s and placed with mostly non-Indigenous families.
The conditions that cause so many Indigenous kids to land in the child welfare system are “related to the intractable legacies of residential schools including poverty, addictions, and domestic and sexual violence,” according to a Truth and Reconciliation Commission (TRC) report.
But Bill C-92 aims to help fix the child welfare crisis.
The legislation addresses the TRC’s fourth call to action which demands the government “enact Aboriginal child-welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases.”
“The closer decision-makers are to the children, the better they’ll do,” Blackstock said. “This is going to reaffirm in terms of that cultural match in terms of the law and the experience with the children.”
How is Cowessess First Nation using it?
The ability for First Nations to take charge of their own social services came into effect on Jan. 1 under Bill C-92.
So far Cowessess First Nation is the only band to enact it, which gives the band full coast-to-coast jurisdiction over its children in care anywhere in the country.
The band office previously verified 165 Cowessess kids currently in government care, spread out between Manitoba and British Columbia.
Cowessess released their draft legislation, called the Miyo Pimatsowin Act, on Dec. 13, 2019, which officially launched on April 1, 2021. Miyo Pimatsowin means “living a good life” when translated from Cree.
The Miyo Pimatsowin Act focuses on keeping children with their families, whether it’s an immediate or extended family member within the community. Developing ways to help prevent the need for child apprehension is one of the main goals of the act.
In March, the band launched the Eagle Woman Tribunal (EWT), which will make the decisions on child welfare concerns, including custody disputes and citizen appeals.
Eagle Woman Tribunal said it aims to help community members in child welfare disputes find their own resolutions but facilitating talking and healing circles with the help of mediators.
There are nine people on the tribunal board: three on-reserve members, three off-reserve members and three non-members.
Tribunal decisions will be final and binding under federal law.
The child welfare services will be held at the Chief Red Bear Children’s Lodge, the First Nation’s child safety service, which provides preventative and protective services to keep families together.
The final say on what happens to children in need will fall on the lodge’s CEO, Eva Coles — rather than a provincial judge or minister.
The lodge employs fewer than 20 people, but Chief Delorme told Global News earlier this year that it will expand to 60 in the coming years.
Cowessess previously stated it is hoping for roughly $20 million annually from both levels of government to operate the lodge.
The Federation of Sovereign Indigenous Nations (FSIN), which represents 74 Saskatchewan First Nations, also announced last year that it wanted $360 million from Ottawa over five years to apply the legislation on reserves.
Shortcomings of the bill
One of the main criticisms of the bill was that the act does mention funding, but nothing concrete.
“… the Government of Canada acknowledges the ongoing call for funding for child and family services that is predictable, stable, 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,” the act states.
However, Trudeau on Tuesday pledged $38.7 million to support the implementation of the Cowessess First Nation’s Child and Family Services system.
“At the end of the day, it will mean fewer children and youth in care,” he said.
Trudeau added that the federal government is working with other First Nations across the country to reach similar agreements.
“Never again should kids be taken from their homes, families and communities,” he said. “My commitment is this: that we will continue to work as a partner with all communities on what they need to thrive.”
Blackstock said she was hopeful but “cautious” that Trudeau would commit to funding this piece of legislation.
“”The key is whether or not the funding is going to be there to make sure the key drivers from over-representation, the poverty, the mental health and addictions flowing from residential schools, whether supports are going to be adequately funded,” she said.
Blackstock explained there are other First Nations hoping to follow a similar path as Cowessess and pursue autonomy of their child welfare. However, unless there is concrete funding in place, many bands may be cautious to go this route.
“They don’t want to have a law that is just a paper tiger,” she said.
–With files from Global News’ Emerald Bensadoun, David Baxter, David Giles and The Canadian Press