TW: Mentions of CFS
Tansi Ninôtemik,
Following up on our last post about An Act respecting First Nations, Inuit and Métis Children, youth and families (“Bill C-92”), today we focus on how courts determine which children trigger the application of Bill C-92. In November, we discussed Indigenous identity and identity fraud. Since issues of identity do not exist in isolation, they become relevant in determining the applicability of Bill C-92 when children have been apprehended.
A Bill C-92 analysis is triggered by a child’s Indigenous identity. Only two definitions offered in Bill C-92 are relevant to determining identity. [1] Section 1 outlines that, “Indigenous, when used in respect of a person, also describes a First Nations person, an Inuk or a Métis person.” Section 1 also outlines that “Indigenous peoples has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982.” Section 35(2) of the Constitution Act, 1982 states, “[i]n this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada.” [2]
Applicability may be obvious for children with Indian Act status, band membership and who live on reserve. However, for non-status Indigenous people and some Métis, the applicability of the Bill C-92 may be less straightforward. Bill C-92 does not define any of these categories of identity. The preamble of the federal Act, affirms the right to self-determination of Indigenous peoples.” [3] Given the complexities surrounding Indigenous identity we discussed in November, the preamble is of little assistance on identity. As a result, it may fall to individual judges to determine a child’s Indigenous identity.
Furthermore, the Act must be applied in conjunction with the provincial child protection legislation of the relevant province. Provincial definitions relevant to Indigenous identity can vary widely. For example, in Alberta, the Child, Youth and Family Enhancement Act (“AB Act”) defines “First Nations Individual means an Indian as defined in the Indian Act (Canada).” [4] However, in British Columbia, the Child, Family and Community Services Act (“BC Act”) defines a “First Nations child” as “a child (a) who is a member or is entitled to be a member of a First Nation, or (b) who an Indigenous authority confirms, by advising a director, is a child belonging to a First Nation.” [5] The BC Act also includes a broad definition of “Indigenous child.” [6]
Applying the constitutional concept of paramountcy, where provincial and federal legislation reach different answers regarding a child’s Indigenous identity, the federal act should prevail. However, some judges may rely on the provincial definitions when they are the only definitions readily available in the legislation. This reliance on provincial legislation may lead to uneven application of the federal Act within and between provinces.
One example of productive judicial engagement with Indigenous identity was in British Columbia (Child, Family and Community Service) v W. and H. [7] While in this case, it was accepted that Bill C-92 applied because the child’s mother held Indian Act status, it was disputed whether the child was also Métis through their father. According to Judge Mengering, in this case, “the Court [was] called upon to decide what makes a Metis child “Indigenous for the purpose of child protection proceedings.” [8] While one of the parties urged the Court to apply the test outlined in R v Powley, Judge Mengering instead held that
“[t]o require a child in care to meet the stringent three-part test set out in Powley in order to have her Metis heritage acknowledged and fostered would, I fear, lead to the loss of that cultural heritage and connection. And that is the opposite of the stated purpose for the inclusion of Metis in section 35, which is a commitment to recognize the Metis and enhance their survival as distinctive communities. The interest at stake is fundamentally different in child protection and criminal contexts.” [9]
The precedential value of W. and H. is low; It does not even bind other provincial court judges in British Columbia. However, it signals that new practices are developing in response to the Federal Act. Approaches, like the one in this case, that consider how strict application of a legal test can disrupt an Indigenous child’s connection to their culture should be adopted more broadly. Honouring the upcoming generation of future elders requires nothing less than nourishing each child’s connection to their Indigenous culture.
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An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 [Bill C-92].
The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
Bill C-92, supra note 1, Preamble, para 7.
Child, Youth and Family Enhancement Act, RSA 2000, c C-12, s 1(1)(j.3).
Child, Family and Community Service Act, RSBC 1996, c 46. s 1(1).
Ibid.
British Columbia (Child, Family and Community Service) v W. and H., 2022 BCPC 216.
Ibid at para 11.
Ibid at para 40.