Order Fixing January 1, 2020 as the Day on which that Act Comes into Force: SI/2019-96
Canada Gazette, Part II, Volume 153, Number 19
Registration
SI/2019-96 September 18, 2019
AN ACT RESPECTING FIRST NATIONS, INUIT AND MÉTIS CHILDREN, YOUTH AND FAMILIES
Order Fixing January 1, 2020 as the Day on which that Act Comes into Force
P.C. 2019-1320 September 6, 2019
Her Excellency the Governor General in Council, on the recommendation of the Minister of Indigenous Services, pursuant to section 35 of An Act respecting First Nations, Inuit and Métis children, youth and families, chapter 24 of the Statutes of Canada, 2019, fixes January 1, 2020 as the day on which that Act comes into force.
EXPLANATORY NOTE
(This note is not part of the Order.)
Proposal
Pursuant to section 35 of An Act respecting First Nations, Inuit and Métis children, youth and families (the “Act”), this Order in Council fixes January 1, 2020, as the day on which the Act comes into force.
Objective
So that Indigenous peoples can benefit from the Act, it must be brought into force. The Act upholds the right of First Nations, Inuit and Métis of self-government affirmed by section 35 of the Constitution Act, 1982, which includes jurisdiction in relation to child and family services and establishes national principles such as best interests of the child, cultural continuity and substantive equality to help guide the provision of child and family services in relation to Indigenous children. These principles will guide Indigenous communities, provinces and territories on the delivery of child and family services, help keep families together, and help reduce the number of Indigenous children in care.
Background
The Act was introduced in Parliament as Bill C-92 on February 28, 2019. It received royal assent on June 21, 2019.
The Act is the culmination of extensive engagements that began in the fall of 2016, when the Government of Canada led a process to seek input from a range of partners on how to improve the First Nations Child and Family Services program and what a program reform could achieve. This engagement process was an opportunity for the Government to hear from First Nations child and family services agencies, communities, youth and families, leadership and organizations, as well as provincial and territorial governments.
The Act also builds on an emergency meeting on Indigenous child and family services held in January 2018 with Indigenous partners, provincial and territorial representatives, youth, experts and advocates. Further to the emergency meeting, the federal government committed to six points of action to address the over-representation of Indigenous children and youth in care in Canada and reform Indigenous child and family services, including the co-development of legislation on Indigenous child and family services.
Throughout the summer and fall of 2018, Indigenous Services Canada engaged with First Nations, Inuit and Métis leaders and experts, as well as with Treaty Nations, provinces and territories, and those with lived experience, on options for potential federal legislation. As part of that engagement, the Government of Canada held over 65 engagement sessions across the country and met with nearly 2 000 participants. Additional engagements took place with Indigenous and provincial and territorial partners in January 2019 to gather feedback on the content of the Bill.
Implications
The Act is designed for Indigenous peoples to exercise partial or full jurisdiction over child and family services at their own pace. Depending on the path chosen by an Indigenous community, the exercise of their jurisdiction could result in their laws prevailing over federal, provincial and territorial laws. Once the Act is in force, it would apply to child and family services provided by any agency, whether directly by provinces and territories, or agencies delegated by First Nations, Inuit or Métis.
The Act also seeks to achieve the following goals: help shift child and family services programming toward prevention and early intervention; have Indigenous children stay with their families and communities; ensure that Indigenous children receive culturally appropriate services and grow up immersed in their communities and cultures; uphold the principle of the best interests of the child so that it is always applied in making decisions in the context of the provision of child and family services in relation to Indigenous children; and provide a framework to facilitate the exercise of jurisdiction by communities over child and family services.
Section 35 of the Act specifies that its provisions come into force on a day or days to be fixed by Order of the Governor in Council. This Order fixes January 1, 2020, as the day on which the Act comes into force.
The Act will not come into force until January 2020, to take into account requested lead time by provinces and territories. While provinces and territories have expressed support for the Act, they have requested some lead time to prepare for the implementation. This includes time to make required adjustments to their regimes and to adequately train services providers.
Indigenous communities, groups and peoples
Bringing the Act into force will ensure that Indigenous peoples can benefit from its framework, and will allow Indigenous peoples to exercise jurisdiction over child and family services. It is expected that a number of Indigenous organizations will initiate development of their legislation and encourage internal engagement of their constituent as soon as the Act comes into force.
Until the Act comes into force on January 1, 2020, child and family services will continue to be provided under the current regime.
Provinces and territories
Having a coming-into-force date of January 1, 2020, will respond to the requests made by provinces and territories to have more time to prepare for the implementation of the Act in their respective jurisdictions, including making the required changes or adjustments to their regimes, properly training service providers and preparing courts on the new principles established by the Act.
Having the Act come into force in January 2020 reconciles the interests of both Indigenous peoples and the provinces and territories and will help build stronger relationships between Canada and these partners. This will result in an easier transition toward the implementation of the Act and will, in turn, contribute to the reduction of Indigenous children in care in provincial and territorial child and family services systems.
Financial
It is anticipated that the legislation will create new funding pressures in the following areas in the initial years following coming into force: partner engagement on implementation of the legislation through the four distinction-based transition governance structures; capacity-building activities with First Nations, Métis and Inuit (i.e. community engagement, planning, research, coordination, and initial drafting of Indigenous child and family services laws); and support of Indigenous groups for coordination agreement discussion.
Gender-based analysis plus
A gender-based analysis plus (GBA+) was done to guide the development of the Act. The analysis considered a broad range of information, including reports from Indigenous organizations, peer-reviewed literature, third-party reports and statistical reports from Statistics Canada and the Public Health Agency of Canada, reports of the Minister’s Special Representative on First Nations Child and Family Services program reform, and engagement reports.
The preamble of the Act explicitly recognizes the disruption that Indigenous women and girls have experienced in their lives in relation to the child and family services systems. It also recognizes the importance of supporting Indigenous women and girls in overcoming their historical disadvantage and highlights the importance of taking into account the unique circumstances and needs of Indigenous Elders, youth, children, persons with disabilities, women, men, and gender-diverse persons and two-spirit persons in the context of child and family services.
The Act aims at eliminating the over-representation of Indigenous children in child and family services systems, ensures that preventive care must be prioritized over other services, including apprehension, and provides that Indigenous children should not be apprehended solely on the basis of their socio-economic conditions. Overall, the Act is part of a comprehensive reform that respects the diversity of all Indigenous peoples and invests in children as a means of protecting Indigenous languages, knowledge, identities and cultures in a sustainable manner.
Consultation
The Government of Canada engaged broadly at all levels during the co-development of the Act with the aim of having a variety of players and perspectives heard.
On January 25 and 26, 2018, the Minister of Indigenous Services Canada hosted an emergency meeting on Indigenous child and family services, involving national, regional, and community organizations representing First Nations, Inuit and Métis, as well as Treaty Nations, self-governing First Nations, provinces and territories, experts, and those with lived experience, including Elders, youth and women.
Further to this meeting, the federal government committed to six points of action to address the over-representation of Indigenous children and youth in care in Canada. One of the points of action was a commitment to “work with our partners to support communities to exercise jurisdiction in the area of child and family services, including exploring co-developed federal legislation.”
Following the emergency meeting, the Government of Canada engaged extensively with partners, including those from the emergency meeting. Over 65 engagement sessions were held across the country with nearly 2 000 participants.
In October 2018, the Government of Canada participated in a reference group consisting of delegates from the Assembly of First Nations, Inuit Tapiriit Kanatami and the Métis National Council.
The reference group proposed legislative options grounded on what was heard through the engagement process. They recommended the adoption of broad-based legislation that would seek to affirm the rights of Indigenous peoples to make laws with regards to child and family services and that would help to keep families together. They also recommended broad principles to guide the delivery of child and family services to Indigenous peoples.
In-person engagement sessions were also conducted in January 2019 with key Indigenous partners and provincial and territorial representatives on the proposed content of the Bill. As a result of the discussions on the content of the Bill, adjustments that could strengthen the proposed legislation were proposed and the Bill was modified.
Provinces and territories have been engaged throughout this process. In relation to the coming into force, provinces and territories have expressed the need for time to properly prepare for the implementation of the Act and are generally supportive of the coming into force of the Act in this manner.
The Government of Canada intends to continue with the spirit of co-development during the implementation phase of this Act. To aim for a smooth transition and implementation, Indigenous Services Canada is exploring, with partners, the creation of transition governance structures, with distinctions-based underpinnings. Members could include representatives from First Nations, Inuit, Métis, self-governing and Treaty Nations, provincial and territorial representatives, child advocates, and others with relevant experience and knowledge to provide advice and recommendations. These governance structures, for example, could identify tools and processes to assist communities as they progress toward assuming responsibility over child and family services. Such governance structures could also assess gaps and recommend mechanisms to guide future funding methodologies. Indigenous Services Canada continues to engage with partners and assess long-term needs and funding gaps.
Contact
For more information, please contact
Isa Gros-Louis
Director General
Child and Family Services Reform
Indigenous Services Canada
Gatineau, Quebec
Telephone: 819‑718‑0563