Liberals' Indigenous child welfare bill just about 'politics,' says prof who saw draft

Ottawa's promised "turning point" Indigenous child welfare legislation seems to have been designed with politics in mind because it sounds good but doesn't change much, according to an Ojibway academic who reviewed a draft version of the bill.

Draft bill suggests only Indigenous groups with provincial, federal agreements could create own rules

Dennis McPherson, associate professor of Indigenous learning at Lakehead University, said the draft child welfare bill does not recognize true Indigenous jurisdiction over child welfare or guarantee any funding for communities. (Submitted)

Ottawa's promised "turning point" Indigenous child welfare legislation seems to have been designed with politics in mind because it sounds good but doesn't change much, according to an Ojibway academic who reviewed a draft version of the bill.

Dennis McPherson, associate professor for Indigenous Learning at Thunder Bay's Lakehead University, said the draft version of the bill does not recognize true Indigenous jurisdiction over child welfare or guarantee any funding for communities.

"It doesn't change a whole lot as far as I can see, in that the ultimate voice is still the minister," said McPherson.

He was once a child services worker in his home community of Couchiching First Nation in the early 1980s and was involved in the early proposal development of the Weechi-it-te-win and Dilico First Nations child welfare agencies in Ontario.

CBC News obtained a draft copy of the bill, titled the Indigenous Family Unity Services Act, and provided it to McPherson for review.

"I didn't read anything where anything is transferred to the Aboriginal community themselves, it still reports back to the minister and the minister has to make a report back to the two houses of Parliament," said McPherson.

"It's just plain politics."

The Trudeau Liberal government announced its plan to table the bill last November during a news conference on Parliament Hill.

Then-Indigenous Services minister Jane Philpott said the bill would mark a "turning point" for the federal government, breaking a more than 100-year-long pattern of destructive policies aimed at Indigenous children. Philpott was shuffled to the Treasury Board in January.

Sections in draft bill triggered concerns

Prime Minister Justin Trudeau told an Assembly of First Nations meeting in December that the bill would be tabled by the last week of January.

That date has come and gone as the parliamentary calendar ticks down to just 12 weeks before expected dissolution and the beginning of the next federal election campaign.

AFN National Chief Perry Bellegarde wrote Trudeau on Friday urging the prime minister to intervene in the development of the bill to ensure First Nations concerns over jurisdiction and funding for child welfare were addressed in the final version of the proposed law.

Federal officials shared the draft version of the bill with members of AFN's legislative working group — with representatives from all provincial regions — in late January and it drew immediate negative reviews.

CBC News has obtained the the same draft version and learned that some of the main problems with the draft bill stemmed from sections 11(1) and 17, which taken together, suggest that only Indigenous groups that strike agreements with Ottawa and the provinces can pass their own child welfare laws.

Funding mentioned only in preamble

"To us, that is nothing more than a delegated authority," said a source involved in the co-development talks from the Indigenous side.

"It may be necessary to have an agreement on different things, but it shouldn't be coerced, or it shouldn't be something you have to enter into before you exercise the authority."

The source, who was granted anonymity due to the confidentiality undertakings required for involvement in the co-development process, said the other main problem with the draft bill is that it mentions funding only in the preamble, not in the main text of the bill.

This means funding levels for child welfare would remain at the whims of whatever federal government is in power, said the source.

Courtney Skye, research fellow at the Yellowhead Institute at Ryerson University, said she was surprised Ottawa gave itself such little time to get the child welfare bill done. (CBC News)

Provinces accused of playing spoilers

The text of the draft bill also states that the minister should review the legislation, once passed, every five years and report back to Parliament on how the bill is working and provide recommendations for possible changes.

Courtney Skye, research fellow at the Yellowhead Institute at Ryerson University, said she was surprised by the late timing of the Liberal government's announcement to bring forward the bill.

"They should have been doing this work right from the very beginning because it is such a huge undertaking," said Skye, who was also provided the draft bill by CBC News for review.

"I don't think it's what communities are expecting when it comes to that national transformation," she said.

AFN Manitoba regional Chief Kevin Hart, chair of the AFN legislative working group, said Ottawa knows the First Nations position is non-negotiable and section 11(1) needs to change.

"For us, as First Nations, it's time for us to put our foot down that it's not OK for other people to dictate that it's not right for us to look after our children," he said.

Manitoba Assembly of First Nations regional Chief Kevin Hart, whose portfolio includes child welfare, says jurisdiction is non-negotiable. (Tyson Koschik/CBC)

Hart said he believes provinces like Manitoba are playing spoilers in the bill's development because they don't want to surrender their control over child welfare to First Nations.

"The provinces have commodified our children; they use them as economic leverage and it's an industry in our province," he said.

"So I can see them behind the scenes saying the sky is going to fall."

Minister's office says work ongoing with bill

Prime Minister Justin Trudeau acknowledged Monday that provinces are pushing back.

"Regardless of the fact that some provinces may not want to lose their control over child and family services, it is essential for this country that we stop taking Indigenous kids out of their community and out of their culture," said Trudeau, during a news conference in Vancouver.

Indigenous Services Minister Seamus O'Regan's office said in a statement that the provincial input is being weighed along with feedback from Indigenous groups in developing the final draft of the bill for tabling "shortly."

"At the end of the day, this legislation must be in the best interest of the child and that is how we are proceeding," said the statement.

About the Author

Jorge Barrera

Reporter

Jorge Barrera is a Caracas-born, award-winning journalist who has worked across the country and internationally. He works for CBC's Indigenous unit based out of Ottawa. Follow him on Twitter @JorgeBarrera or email him jorge.barrera@cbc.ca.