An Act respecting First Nations, Inuit and Métis children, youth and families (S.C. 2019, c. 24)
Full Document:
Assented to 2019-06-21
An Act respecting First Nations, Inuit and Métis children, youth and families
S.C. 2019, c. 24
Assented to 2019-06-21
An Act respecting First Nations, Inuit and Métis children, youth and families
SUMMARY
This enactment affirms the rights and jurisdiction of Indigenous peoples in relation to child and family services and sets out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children, such as the best interests of the child, cultural continuity and substantive equality.
Preamble
Whereas the Government of Canada is committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples;
Whereas Canada ratified the United Nations Convention on the Rights of the Child and the International Convention on the Elimination of All Forms of Racial Discrimination;
Whereas Parliament recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices;
Whereas Parliament recognizes the disruption that Indigenous women and girls have experienced in their lives in relation to child and family services systems and the importance of supporting Indigenous women and girls in overcoming their historical disadvantage;
Whereas Parliament recognizes the importance of reuniting Indigenous children with their families and communities from whom they were separated in the context of the provision of child and family services;
Whereas the Truth and Reconciliation Commission of Canada’s Calls to Action calls for the federal, provincial and Indigenous governments to work together with respect to the welfare of Indigenous children and calls for the enactment of federal legislation that establishes national standards for the welfare of Indigenous children;
Whereas Parliament affirms the right to self-determination of Indigenous peoples, including the inherent right of self-government, which includes jurisdiction in relation to child and family services;
Whereas Parliament affirms the need
to respect the diversity of all Indigenous peoples, including the diversity of their laws, rights, treaties, histories, cultures, languages, customs and traditions,
to take into account the unique circumstances and needs of Indigenous elders, parents, youth, children, persons with disabilities, women, men and gender-diverse persons and two-spirit persons,
to address the needs of Indigenous children and to help ensure that there are no gaps in the services that are provided in relation to them, whether they reside on a reserve or not,
to eliminate the over-representation of Indigenous children in child and family services systems, and
to enact legislation for the benefit of Indigenous children, including First Nations, Inuit and Métis Nation children;
Whereas the Government of Canada is committed
to working in cooperation and partnership with Indigenous peoples to support the dignity and well-being of Indigenous children and youth and their families and communities, as well as the achievement of their full potential, and to respecting, strengthening and building on the accomplishments of Indigenous peoples in this regard,
to achieving reconciliation with First Nations, the Inuit and the Métis through renewed nation-to-nation, government-to-government and Inuit-Crown relationships based on recognition of rights, respect, cooperation and partnership, and
to engaging with Indigenous peoples and provincial governments to support a comprehensive reform of child and family services that are provided in relation to Indigenous children;
And whereas the Government of Canada acknowledges the ongoing call for funding for child and family services that is predictable, stable, sustainable, needs-based and consistent with the principle of substantive equality in order to secure long-term positive outcomes for Indigenous children, families and communities;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Interpretation
Marginal note:Definitions
1 The following definitions apply in this Act.
- care provider
care provider means a person who has primary responsibility for providing the day-to-day care of an Indigenous child, other than the child’s parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs. (fournisseur de soins)
- child and family services
child and family services means services to support children and families, including prevention services, early intervention services and child protection services. (services à l’enfance et à la famille)
- coordination agreement
coordination agreement means an agreement referred to in subsection 20(2). (accord de coordination)
- family
family includes a person whom a child considers to be a close relative or whom the Indigenous group, community or people to which the child belongs considers, in accordance with the customs, traditions or customary adoption practices of that Indigenous group, community or people, to be a close relative of the child. (famille)
- Indigenous
Indigenous, when used in respect of a person, also describes a First Nations person, an Inuk or a Métis person. (autochtone)
- Indigenous governing body
Indigenous governing body means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982. (corps dirigeant autochtone)
- Indigenous peoples
Indigenous peoples has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982. (peuples autochtones)
- Minister
Minister means the Minister designated under section 6. (ministre)
Marginal note:Rights of Indigenous peoples
2 This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.
Marginal note:Conflict — existing agreement
3 If there is a conflict or inconsistency between a provision that is in an agreement — including a treaty or a self-government agreement — that contains provisions respecting child and family services, concluded before the day on which subsection 18(1) comes into force, between an Indigenous group, community or people and Her Majesty in right of Canada or of a province and a provision of this Act or the regulations, the provision that is in the agreement prevails to the extent of the conflict or inconsistency.
Marginal note:Minimum standards
4 For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act.
Marginal note:Nunavut Act
5 Subject to section 4, nothing in this Act affects the Legislature for Nunavut’s legislative powers referred to in section 23 of the Nunavut Act.
Designation of Minister
Marginal note:Order in council
6 The Governor in Council may, by order, designate any federal minister to be the Minister referred to in this Act.
Her Majesty
Marginal note:Binding on Her Majesty
7 This Act is binding on Her Majesty in right of Canada or of a province.
Purpose and Principles
Marginal note:Purpose
8 The purpose of this Act is to
(a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services;
(b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and
(c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
Marginal note:Principle — best interests of child
9 (1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.
Marginal note:Principle — cultural continuity
(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:
(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;
(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;
(c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;
(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and
(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.
Marginal note:Principle — substantive equality
(3) This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts:
(a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child’s participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs;
(b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;
(c) a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression;
(d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and
(e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children.
Best Interests of Indigenous Child
Marginal note:Best interests of Indigenous child
10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.
Marginal note:Primary consideration
(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.
Marginal note:Factors to be considered
(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including
(a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage;
(b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life;
(d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs;
(g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and
(h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
Marginal note:Consistency
(4) Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs.
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