The Overhaul of Indigenous Child Welfare Considerations Through Federal Legislation

  • March 16, 2021
  • Imran Kamal, LSO Certified Specialist - Indigenous Legal Issues

The landscape of child welfare services to Indigenous people has been going through a desperately needed overhaul – to finally become culturally appropriate and humane, if I may be so bold. The changes to the Child, Youth and Family Services Act in 2018 and the federal legislation An Act respecting First Nations, Inuit and Métis Children, Youth and Families, (“the Act”) in 2020, provide a new framework for Indigenous legal issues in child protection law.

The federal Act sets out 2 objectives. First, it sets out Federal rules on Indigenous child welfare which includes approximately 10 substantive laws. These are mandatory and overlay on top of both provincial and Indigenous laws. They took force on January 1, 2020. Secondly, the Act recognizes inherent jurisdiction of Indigenous peoples in child welfare and creates a path for Indigenous communities to exercise that jurisdiction. This is optional for communities and can be exercised at any time (January 1, 2020 onwards).

Sections 9-17 of the Act establish substantive rules about child welfare. These federal rules layer on top of provincial and Indigenous laws. Both or all 3 apply, unless there is a “conflict or inconsistency”, in which case, Indigenous laws prevail over provincial law (section 22(3)). Sections 10-15 of the Act also prevail over Indigenous law.

Section 18(1) of the Act recognizes 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.