Second reading of Bill S-210, An Act to establish the Office of the Commissioner for Children and Youth in Canada – Sen. Francis

By: The Hon. Brian Francis

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Colourful homes, St Johns, Newfoundland

Hon. Brian Francis: Honourable senators, I rise today to speak at Second Reading of Bill S-210, which proposes to establish the office of the commissioner for children and youth. I fully support the intent behind the bill and commend Senator Moodie for her dedication. However, I am not convinced that the bill before us is the best way forward.

I am frankly disappointed by the lack of respect for, meaningful engagement with and participation of Indigenous people, which is reflected throughout the bill. I am certain that this was not done in bad faith, but because of limited knowledge and understanding of, and relationships with, Indigenous peoples. I am also mindful that an individual senator’s office does not have the capacity and resources to coordinate with numerous Indigenous governments, communities and organizations. But none of this ever justifies a failure to incorporate the unique rights, interests and circumstances of Indigenous peoples during the development and eventual implementation of legislation.

Honourable senators, to make progress toward reconciliation, lawmakers at all levels must commit to moving away from the unilateralism of the past centuries. This change requires that we all deepen our understanding of and respect for Indigenous peoples, and pursue partnership and collaboration even when it’s hard or uncomfortable.

Before I speak to the substance of Bill S-210, I want to comment on the situation of Indigenous children and youth who are by far the most marginalized and disadvantaged in Canada. A recent report on child poverty, which used census data from 2006 to 2016, found that an astounding 47% of status First Nations children in Canada live in poverty — two and a half times above the national average. The rate increases to 53% for those living on reserve. For those in Saskatchewan and Manitoba, it is 65%. The report also found that some 32% of non-status First Nations children live in poverty. Inuit children are at 25% and Métis children at 22%. None of this is accidental.

The Crown has, for centuries, sought to assimilate, dispossess and erase every aspect of Indigenous people’s existence, including our identity, language, culture and sovereignty. This legacy contributes to a complex and ongoing intergenerational trauma, and it has taken us from economic self-sufficiency to dependency. All is made worse because of the inadequate and insufficient housing, non-potable water, inferior basic services and other conditions arising from chronic underfunding and because of systemic discrimination, racism and violence.

The truth is that even the most resilient of our children and youth are hurting. A deep sense of hopelessness and even despair lingers, which no doubt contributes to the suicide epidemic affecting so many of our communities today.

Colleagues, Indigenous children and youth in Canada are frequently viewed and treated as less worthy or deserving than others. That is, of course, not true. And, as the youngest and fastest-growing segment of the population, we simply cannot continue to deprive them of attention and priority.

Indigenous children and youth want to be happy, healthy and empowered and to rebuild, revitalize and regain control over their lives and communities. Their parents, communities and organizations want to help them realize this vision. Yet progress is too often undermined by the federal government and others in positions of power, either because of disinterest, inattention or unilateral actions hidden under the veil of good intentions. A commitment to true and lasting reconciliation requires that we start to listen and act. It requires that we recognize the rights of Indigenous people and that their distinct views, interests and needs are incorporated in our decision making. It requires an emphasis on meaningful and informed dialogue and collaboration as equals, and not as subordinates.

Honourable senators, I now want to turn to Bill S-210 itself. Dr. Cindy Blackstock, a tireless advocate for Indigenous children’s rights, prepared an excellent briefing note, which requires our careful analysis. Among the shortcomings she identified in Bill S-210, it does not sufficiently acknowledge the distinct obligations Canada has toward different First Nations, Métis and Inuit children, youth, governments and communities. Such was evident to me after reading the preamble of the bill, which reads:

Whereas children and youth under federal jurisdiction — such as First Nations, Inuit and Métis children and youth — do not benefit from provincial and territorial human rights protections . . . .

This statement is inaccurate. I will not elaborate further, given that Senator Patterson alluded to this point in his speech.

Another shortcoming in the bill identified by Dr. Blackstock includes the disregard for the long-standing practices of First Nations, Métis and Inuit communities and families to safeguard the rights and best interests of their children using their laws and practices. Even more disturbing, the bill implies that the practice of separating Indigenous children and youth from their families and culture is historical rather than ongoing, which is entirely untrue. There are more Indigenous children and youth in care today than there were in residential schools at the height of their use, contributing to what has now become known as the Millennial Scoop.

Colleagues, the call for the establishment of a single commissioner with an assistant commissioner for Indigenous children and youth is another serious shortcoming in the bill. This top-down approach is not in line with one of the most basic rights of Indigenous peoples: the right to self-determination. This is our right to have control over matters that directly affect us without domination or interference, including those related to our children and youth, and to establish a relationship with the dominant society and the state based on participation and consent. The single commissioner proposed by the bill reinforces a paternalism that treats Indigenous peoples as wards of the state who require control and direction, and which emboldens those in positions of authority to justify making decisions about us without us, sometimes with devastating consequences.

A clear example is found in the application of the principle of the best interests of the child, which is grounded on Western and Euro-centric values and has been used to justify the removal of too many Indigenous children and youth from their families and communities. It is only recently that the importance of maintaining cultural continuity and ensuring substantive equality in the provision of services has been acknowledged. The coming into law of Bill C-92, which aimed to restore control over the delivery of child and family services to Indigenous communities, has been a crucial step forward. In contrast to Bill C-92, Bill S-210 feels like a step backward.

To be consistent with the right to self-determination, I and others reason that the role of a national children’s commissioner must include a dedicated Indigenous children’s commissioner. The Assembly of First Nations, for example, passed resolutions supporting independent oversight bodies to protect the unique needs, rights and views of First Nations children and youth. Only a dedicated First Nations or Indigenous commissioner would fit this vision.

We should also take note from Australia, where they established a National Children’s Commissioner in 2012. Last year, an enlightening position paper, which was signed by over 70 organizations and 7 of the country’s children’s commissioners and guardians, called for the urgent establishment of a commissioner for Indigenous children and youth on an equal footing as a national children’s commissioner, noting that this would be consistent with the right to self-determination. The position paper also maintains that the role must be filled by a person with the necessary qualifications, knowledge and experience and, more significantly, be filled by an Indigenous person with the requisite cultural understanding and relationships to understand and promote the best interests of Indigenous children and youth. I completely agree. We need more Indigenous-led solutions. Excluding Indigenous people from the table is what has led to today’s problems.

Professors Hadley Friedland and Naiomi Metallic, who are also advocates for Indigenous children’s rights, brought other shortcomings in the bill to my attention. Perhaps the most significant is that:

Indigenous children are the only children directly under federal jurisdiction (s. 91(24) jurisdiction concerning various essential services provided to Indigenous families, particularly those on reserve), but appear to be relegated to a secondary status in this Bill by not having Indigenous children being the focal point of the Act. This makes no sense because Indigenous children are the only children Canada’s jurisdiction directly impacts.

The professors mentioned that this bill does not refer to relevant legislation, such as the Department of Indigenous Services Act, which confirms the responsibility of the Minister of Indigenous Services to provide services to Indigenous peoples, including First Nations children and families on reserve, and An Act respecting First Nations, Inuit and Métis children, youth and families, also known as Bill C-92, which applies only to Indigenous children, setting out minimum standards judges must consider in child welfare hearings and implicates the federal government in negotiations with Indigenous governments for funding and services in relation to the exercise of Indigenous self-government over child and family services.

The professors also warned me that the bill does not mention remedies or what a person or court can do if the law is not being complied with. This is an important shortcoming for Indigenous children and youth, especially considering a recent provincial court decision in Alberta where the judge states that Bill C-92 does not give her the jurisdiction or authority to order remedies if the government does not comply with what the law says they must do.

Colleagues, the lack of binding mechanisms significantly undermines the capacity of this bill to achieve its stated objective, which is to ensure federal accountability for the rights of children and youth, especially those most vulnerable.

Consider, for example, that in 2016, Canada was found guilty by the Canadian Human Rights Tribunal of discriminating against children who live on reserve by wilfully and recklessly underfunding child welfare and other services and was subsequently ordered to compensate individual First Nations children and some parents or grandparents affected. The federal government has yet to do so. It also continues to underfund health and social services for First Nations children living on reserve. This bill will, regrettably, not change this.

Having the authority to investigate, make findings and recommendations is valuable, but many studies, reports and inquiries have already drawn our attention to the issues. Indigenous people have a good understanding of what needs to happen. The problem is a lack of political will to do so.

Why, then, does this bill rely on the goodwill of the federal government and other parties to uphold the rights of Indigenous children and youth when it has been proven, time and time again, to be insufficient?

Colleagues, it is also noteworthy that Canada has been called out on multiple occasions for not having a centralized mechanism to compile and analyze disaggregated data related to children. The Calls to Action specifically refer to monitoring and assessing neglect investigations, issuing annual reports on the number of Indigenous children in care, the reasons for apprehension, the total spending on services by child welfare agencies and the effectiveness of various interventions. None of this is reflected in Bill S-210.

Even if the bill was amended to address this shortcoming, the rights of Indigenous communities to own, control, access and possess information about their peoples must be respected, as it is fundamentally tied to self-determination and to the preservation and development of culture.

In closing, honourable senators, I want to make clear that I am not in any way opposed to protecting and promoting the rights of children and youth. It would be absurd for anyone to insinuate as much. I just do not think that Bill S-210 is the answer, at least not for Indigenous children and youth. What I do know is that this bill makes no more than a passing reference to Indigenous groups. It is wrought with colonialistic and paternalistic attitudes, and lacks substance because of its little regard for the distinct needs, rights and views of Indigenous children and youth and their parents, communities and governments.

Indigenous people need a seat at the decision-making table from the beginning to the end as equal partners. We must be afforded the meaningful opportunity to collaborate in the development of bills that touch upon matters that affect us. Had this happened with Bill S-210, there would not be so many shortcomings. Since it did not, we will now be asked to consider numerous amendments in an attempt to salvage a flawed bill. This leads me to ask: Are we really prepared to unilaterally impose another bill on Indigenous people without the time to adequately involve them or consider how their rights are impacted? I do not feel comfortable proceeding this way. I would much rather take more time and do it in a respectful and culturally appropriate manner. Thank you. Wela’lioq.

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