Program Highlights on Bill C-92 and its Practical Impacts

On November 28, 2019, the Ontario Bar Association’s (the "OBA") Aboriginal Law and Child and Youth Law Sections hosted a program titled: “Legislative Spotlight: Bill C-92 and Its Impact On Your Practice” (the “OBA Program”). This timely program was intended to provide a space for interdisciplinary discussion on the impacts of the implementation of the new federal Indigenous child welfare legislation, Bill C-92: An Act respecting First Nations, Inuit and Métis children, youth and families (the “Act”), which comes into force January 1, 2020. As stated by Marvin Bernstein at the OBA Program, this Act is historic and has the potential to be ground-breaking. Courtney Skye further explained that this is the first time Canada has, in a concrete way, acknowledged and made space for Indigenous nations to make and enforce laws on their own, laws that are paramount to federal and provincial laws. However, this piece of legislation and the process leading up to its implementation have not been without scrutiny. Several important questions have been left unanswered.

As a response to the Truth and Reconciliation Commission’s Calls to Action #4, some have heralded the Act as much-needed in response to the crisis of overrepresentation of Indigenous children in care and praised it for being the first federally enacted legislation that affirms the inherent jurisdiction of Indigenous Peoples in relation to child and family services. Meanwhile, there has been significant criticism of the Act’s lack of specific funding mechanisms, its process being rushed and without proper consultation and its potential for perpetuation of colonial practices. There are no regulations at this time and many specifics are left to be determined. This is of particular concern to Indigenous communities, frontline workers, lawyers and agencies in terms of how its implementation will look come January 1. The legislation attempts to balance the need to provide clear guidelines to ameliorate the current state of colonial systems regulating Indigenous child welfare while providing the space for Indigenous communities to assert their own laws and customs with their appropriate definitions and processes in relation to child and family services. This balancing attempt may have unwittingly resulted in confusion around the practical impacts of the Act.