Third Session, 42nd Parliament

(2022) OFFICIAL REPORT

OF DEBATES

(HANSARD)

Thursday, November 3, 2022

Afternoon Sitting

Issue No. 248

ISSN 1499-2175

The HTML transcript is provided for informational purposes only.

The PDF transcript remains the official digital version.

CONTENTS

Orders of the Day

Second Reading of Bills

Bill 38 — Indigenous Self-Government in Child and Family Services Amendment Act (continued)

K. Kirkpatrick

Hon. N. Simons

M. Lee

K. Paddon

Motions Without Notice

Schedule for House adjournment

Hon. M. Farnworth

T. Stone

A. Olsen

Royal Assent to Bills

Bill 26 — Environmental Management Amendment Act, 2022

Bill 27 — Attorney General Statutes Amendment Act (No. 2), 2022

Bill 28 — Municipal Affairs Statutes (Property Taxation) Amendment Act, 2022

Bill 29 — Mortgage Services Act

Bill 30 — Cannabis Control and Licensing Amendment Act, 2022

Bill 31 — B.C. Pavilion Corporation Act

Bill 32 — Gaming Control Act

Bill 33 — Food Delivery Service Fee Act

Bill 34 — Opioid Damages and Health Care Costs Recovery Amendment Act, 2022

Bill 35 — Income Tax Amendment Act, 2022

Proceedings in the Douglas Fir Room

Committee of the Whole House

Bill 36 — Health Professions and Occupations Act (continued)

Hon. A. Dix

S. Bond

N. Letnick

S. Furstenau

THURSDAY, NOVEMBER 3, 2022

The House met at 1:02 p.m.

[Mr. Speaker in the chair.]

Orders of the Day

Hon. M. Farnworth: In this chamber, I call continued debate on Bill 38.

In

Section A, Douglas Fir Room, I call continued committee stage on Bill

[J. Tegart in the chair.]

Second Reading of Bills

BILL 38 — INDIGENOUS SELF-GOVERNMENT

IN CHILD AND FAMILY SERVICES

AMENDMENT ACT

(continued)

Deputy Speaker: Recognizing the member for West Vancouver–Capilano.

K. Kirkpatrick: Thank you, Madam Speaker. Nice to see you in the chair.

Before we broke, I was speaking about the colonial system of child

welfare and the purposeful destruction of Indigenous families in our

history. This brings us to this bill today before us, which is a very

important piece of trying to right those wrongs as best as we can. Let’s

consider how we got here and why we’re talking about this legislation

today.

Residential schools operated in Canada for more than 160 years,

with tens of thousands of children passing through their doors. These

residential schools, this policy removed tens of thousands of Indigenous

children from their homes over several generations, aiming for

assimilation.

Many of these schools were rife, we know, with child abuse and

neglect. The legacy of residential schools and the harm, including the

intergenerational trauma caused to Indigenous families by these colonial

practices, is immeasurable. It continued as provincial child welfare

authorities continued to apprehend numbers of Indigenous children in the

1960s and ’70s, known as the Sixties Scoop.

[1:05 p.m.]

Social workers placed some of these children in residential

schools, while many others were actually adopted into non-Indigenous

homes, where they were apart from their extended family, they were apart

from their culture, their traditions, their communities and customs.

Colonialization imposed foreign and other harmful policies on Indigenous

families.

On January 6, 2016, the Canadian Human Rights Tribunal issued its

decision regarding a complaint filed in February 2007 by the First

Nations Child and Family Caring centre and the Assembly of First

Nations, which alleged that the Indian and Northern Affairs provision of

child services and their implementation of Jordan’s principle was

flawed, inequitable and discriminatory under the Canadian Human Rights

Act.

I’ll explain Jordan’s principle for those who are not familiar

with it. Jordan’s principle is named in memory of Jordan Rivers

Anderson. He was a young boy from Norway House Cree Nation in Manitoba.

Jordan was born in 1999 with multiple disabilities and stayed in

hospital from his birth.

When he was two years old, doctors said he could move to a special

home to support him for his medical needs. But there was confusion about

jurisdiction and fighting about jurisdiction in terms of who would pay

for this home-based care. Unfortunately, that meant that poor Jordan

stayed in that hospital for his entire life, until he passed away at the

age of five.

Jordan’s principle, named in his honour, says that no First

Nations child would ever experience or should ever experience

inequitable access to government-funded services again. It makes sure,

and commits this government, that all First Nations children living in

Canada can access the products, services and supports that they need,

and they can do that when they need them. This kind of funding can help

with a wide range of health, social and educational needs, including the

unique needs that First Nations, two-spirit and LGBTQ children and youth

have as well, and those with disabilities have.

The Human Rights Tribunal found that the First Nations child and

family services program continued to deny many First Nations children

and families living on reserve, and this resulted in very adverse

impacts for them. It was based on very flawed assumptions about First

Nations communities that didn’t actually reflect the actual needs of

those communities.

The tribunal also found that the program’s two main funding

mechanisms actually were incentivizing the removal of children from

their families. They found that INAC’s narrow

interpretation of Jordan’s

principle needed to be resolved.

This past January the federal government announced a $40 billion

agreement with the Assembly of First Nations to settle two class action

lawsuits. This agreement did set aside $20 billion for individual

compensation, which is unfortunately back in front of the tribunal now.

But there are $20 billion that this federal government has committed to

long-term reform of the child welfare system.

As part of Bill C-92,

An Act Respecting First Nations, Inuit and

Métis Children, Youth and Families, the government is working and has

given direction to provinces to build their own legislation, in

consultation with First Nations communities, that will help to move that

self-determination, move that self-governance of the child welfare

system back to First Nations communities, as it should be.

I want to make sure, as I’m watching the time, that I address some

of the things I think are truly key here. First Nations, Inuit and Métis

peoples in Canada have traditional systems of culture, law and knowledge

that have provided effective protection of their own children for

thousands of years. Despite their diversity, Indigenous peoples continue

to share a high value for children and an emphasis on the caring and

teaching responsibilities of extended family and community.

Self-determination means Indigenous nations and communities are at

the forefront of the development of child welfare laws, policies,

research and practice for their communities. It also means that

Indigenous peoples have the final decision-making authority over those

decisions impacting their children. This is rooted in the understanding

that Indigenous peoples are in the best position to make decisions that

impact Indigenous children, youth, families and communities.

If I may pause for a moment to ensure that I speak about those

things that I think are….

[1:10 p.m.]

I would like to highlight some of the work of the Representative

for Children and Youth. In particular, I’d like to draw on the report

entitled Skye’s Legacy . I’m going to read some of the report to

try and put a face to those children who are most impacted by our

current approach to Indigenous child welfare.

“The children found in Kamloops were separated from their parents,

siblings, extended families, territories and cultures as a result of the

residential school system that ripped them from their homes and

incarcerated them in abusive and dangerous facilities.

“Skye, the Teetlit Gwich’in Band girl who is the subject of this

investigative report by the Representative for Children and Youth…

wasn’t born until 2000, a few years after the last Canadian residential

school closed its doors. But she, too, was removed from her mother,

sister, extended family and culture as she became part of what many have

described as the modern-day residential school — our child welfare

system.

“What has become evident to the representative in the wake of the

widespread shock expressed over the Kamloops discovery is that, despite

significant undertakings — most notably, the Truth and Reconciliation

Commission and the national inquiry into missing and murdered Indigenous

women and girls — there remains a segment of the Canadian population

still” — shockingly — “unaware of the extent of the damage that is being

done and continues to be inflicted, through colonialism….

“The intergenerational damage of colonialism on Skye’s family was

profound. Her mother was removed from her own family before her first

birthday — adopted into a non-Indigenous home during the infamous period

known as the Sixties Scoop. As a child, Skye’s mother experienced

extreme abuse at the hands of people known to her and, as a result,

suffered severe and life-long mental health and substance use

challenges.

“Skye herself was removed from her mother’s care at age five. RCY’s

investigation shows that once this occurred, MCFD focused almost solely

on finding Skye an adoptive home, rather than on ways to support the

potential return to her mother’s care or even a way for Skye to continue

a relationship with her mother.

“That focus resulted in three failed adoption plans for Skye before

she was 12. These took a heavy emotional toll and resulted in the

severing of any continuing relationship between Skye and her sister.

Potential placements for Skye with extended family were not fully

explored, and a nurturing placement with an Indigenous foster family was

inexplicably severed, as was a relationship with a trusted

counsellor.

“During her nearly 12 years in care, Skye was moved 15 times…in

eight different foster homes” — this poor young girl — “attended eight

schools and had 18 different social workers. She wasn’t provided with

opportunities to connect with her Dene culture in any meaningful way,

and she never got the chance to visit her home territory of Fort

McPherson, Northwest Territories, despite clearly expressing her desire

to do both.

“The cumulative result was that Skye wasn’t able to realize the

sense of belonging that all humans need and seek. The focus on legal

belonging, adoption, came at the expense of…other elements of belonging

for Skye, including connection to family, culture, community and

physical place, and resulted in her searching for identity and

meaningful connections throughout her short life, which ended with her

tragic overdose death on her 17th birthday in August 2017.”

Madam Speaker, this is a very hard report to read by the

representative. I must express my appreciation for the work of the

representative and the people in her office, because the investigative

reports that they do, the work that they do with children and families,

must be very, very difficult. I am afraid that Skye’s story is

representative of many, many stories of many, many Indigenous children

who have been taken into care.

When we look at Bill 38 before us today, we know that it must

align with the federal principles and also respond to the Truth and

Reconciliation Commission’s calls to action for child welfare, 1 to 5.

That means monitoring and assess­ing neglect

investigations.

[1:15 p.m.]

It means providing adequate resources to enable Aboriginal

communities and child welfare organizations to keep Aboriginal families

together, where it is safe to do so, and to keep children in culturally

appropriate environments, regardless of where they reside.

It needs to ensure that social workers and others who conduct

child welfare investigations are properly educated and trained about the

history and the impacts of residential schools.

It needs to ensure that social workers and others who conduct

child welfare investigations are properly educated and trained about the

potential for Aboriginal communities and families to provide more

appropriate solutions to family healing versus requiring that all child

welfare decision-makers consider the impact…. And require all

decision-makers to consider the impact of residential

schools.

This is a very important piece of legislation. As I said earlier,

we are concerned that although there has been consultation with a number

of Indigenous groups and Indigenous governing bodies in British

Columbia, it hasn’t been all of them. The feedback that we’re hearing,

the calls that we’re getting, is really saying that even where

consultation occurred, they did not see the actual legislation until

that legislation was presented here in the House.

As we all know, sometimes, with the best of intentions, when we

put things down on paper, there may be unintended consequences.

Legislation needs drafting over and over and over to get it right, and

when we are talking about something that impacts our children, something

as important as our families, something that is so key to

reconciliation, where we have made this commitment to reconciliation, it

cannot be rushed, and it cannot be done without the full consideration

and consultation with all of those who will be impacted by

this.

This is not legislation where the light switch is going to flick

and suddenly all First Nations communities will have jurisdiction over

their children. This is something that MCFD will have to work long and

hard at for many years. It may be decades before all of these agreements

can be reached and we can see that true reconciliation and true

self-determination with child welfare is a reality.

We are in complete support of meaningful legislation and

mechanisms to return the care of Indigenous children to their own

families and culture. We must also remember that our action has to go

beyond just these amendments, and we must address those social

inequities that remain that Indigenous peoples face as a result of the

systemic injustices to both the past and present.

We need to make sure that we do this the right way. We need to

make sure that we walk along with those families, walk along with those

children, and we ensure that they have what they need to be successful

as communities.

I thank the House for giving me the opportunity. I thank all of

those staff and ministry members, who I know have worked long and hard

on this. We need to work harder, and we need to make sure this is the

right piece of legislation that is going to truly meet our obligation of

reconciliation.

Hon. N. Simons: It’s a real pleasure to be able to speak to this piece of

legislation which, everyone will acknowledge, has been a long time in

coming. The history of our Indigenous child welfare system in British

Columbia has been one that has been identified as being most emblematic

of our colonial history and of all the most negative impacts of

colonization.

I just think it’s important to pay tribute to some of the early

fighters against the system that resulted in so many young children

being removed not just from their immediate family but from their

communities. Those people set the stage for this ongoing but challenging

fight to reassert authority over child welfare.

[1:20 p.m.]

The reassertion of the authority over child welfare is something

that Indigenous people have been trying to do since the arrival of

settlers and the imposition of colonial laws on communities

here.

I think about not just the residential school system, which was

fundamentally at the core of the genocidal attempt to, essentially, ruin

the cultures of communities that were here already. The residential

school system and the criminal justice system and all the systems that

were geared to oppressing Indigenous people all had their own unique

impacts on societies that were here already.

I think about the resistance of families, when they hid their

children from the residential schools. I think of the resistance of

families, when they saw outsiders coming to tell them how to live their

lives and what to do. And I can only imagine the courage it took to be

as strong as they were, fighting against the immoral and strong efforts

of the settling culture here.

Their resistance and their resilience, which is sometimes a word

we overuse, cannot be overstated. It was because of that resistance and

resilience that the communities survived to thrive again and to pay

tribute to those who fought individually as community members — seeing

their neighbours and their families being harmed — and organized against

a very powerful government to gather the strength of the common voices

of Indigenous people here in British Columbia and across Canada to fight

against policies that were so detrimental to their

communities.

I think about the Indian Homemakers Association — Grand Chief Dr.

Rose Charlie of the Chehalis in the Stó:lō Nation — and the moccasin

walks that were geared to raise money in order to organize Indigenous

people to fight, essentially, against the oppression that was so strong

in the child welfare system and so strong in the criminal justice

system. These were women whose circumstances were not…. They were not

wealthy. They had to raise every bit of funding themselves in order to

arrange for the first leadership gathering of First Nations chiefs in

the late ’60s.

Rose Charlie was instrumental in bringing those chiefs together,

and much of her life was devoted to finding and garnering the strength

of Indigenous communities to fight against the child welfare system.

That fight led to others — led to the strengthening of their children to

continue that fight, continue that resistance against the system that

was so destructive.

Looking back at that kind of leadership, we can say we’re not here

because we’ve made a decision today. We’re here because of the powerful

voices of the past that continue to resonate and to show us why the work

we’re doing today is so important.

You can’t have autonomy unless you have authority over how your

children are treated, how your children are raised and how your children

can prosper. And the child welfare system was simply an element of that

colonial system that wreaked havoc and destruction.

[1:25 p.m.]

Not starting with the Indian Homemakers Association…. That was a

movement that came from community, that came from aunties and grannies,

for the most part, women in communities who were raising children in the

midst of ongoing residential schools, ongoing overcriminalization of

communities, ongoing policies that resulted in poverty, ongoing policies

that resulted in exclusion. The racism inherent in the structures of the

system resulted in a child welfare system that didn’t protect children,

didn’t protect communities, didn’t protect families.

The work that was done by those voices who were struggling to be

heard for generations…. I hope people see this legislation as a good and

important acknowledgment that their fight was the right fight, and while

the impacts of past policies continue to impact us now, this is a very

important place to continue the next part of the battle.

In the ’90s, when I was a child protection social worker and I

worked with different communities, it became clear to me that the system

wasn’t really doing very much to help.

Social workers themselves were working in a system that was

troublesome. Social workers saw poverty, and they saw more poverty in

Indigenous communities. They saw the impacts of past colonial practices

disproportionately resulting in worse health outcomes, worse educational

outcomes, worse employment outcomes.

The system kept going in the same way. You see a problem. The

solution is to protect the child by taking them out of a bad situation,

never really allowing the opportunity for eliminating the root causes.

Why do we have this poverty? Why do we have these kinds of

outcomes?

Residential schools are so clearly part of that, the interruption

of what were usually family stories and historical stories and cultural

stories, the interruption of language learning. All the things that

disconnected people from one another resulted in the outcomes that we’d

seen for so long.

In the ’90s, certain tragedies, child welfare tragedies, got the

attention of the public finally, individual stories like the story of

Matthew Vaudreuil. What happened there? We said: “We need to do

something about this.” Justice Gove was tasked with the challenge to try

to figure out how to make important changes to the child welfare system

so that tragedies could be avoided.

When you’re talking about child protection, you’re talking about

challenging situations. Sometimes children need to be protected. What

Justice Gove found was that we needed a system that was more culturally

appropriate, that was delivered by people who understood the community

better, that understood the causes and the potential solutions to the

challenges that were real.

The government of the day started a program to restore authority

for child welfare to Indigenous communities. Progress was being made.

There was — what was it called? — the Aboriginal social worker training

program. The Aboriginal operation standards were being developed by

Indigenous people with the support of government to say: “Okay, we need

to do child welfare differently, especially when it comes to child

welfare in Indigenous communities.”

[1:30 p.m.]

It was at that time that I started working in an Indigenous

community as a director of health and social services. My responsibility

included child protection, also known as family support, family

preservation. The systems were being developed to ensure that children

could be protected within their culture, within their community.

Unfortunately, there were changes made that stopped that process or that

progress from happening, and we’ve lost time. We have lost time. We

needed to do this so long ago, and we’ve still lost time.

I would say that it’s fundamentally important to know that the

history of Indigenous child welfare isn’t something that has been the

same since settlers arrived. Child welfare became an issue when the

settlers got here and started imposing their perspective. They created

poverty, and they created situations where people were suffering more. I

think it’s important to know that in the early 2000s, the child welfare

system underwent some massive changes, which resulted in the stopping of

the progress that was being made towards the reassertion of Indigenous

authority over their own children.

Budget cuts, the elimination of the child and youth advocate, the

elimination of the Mental Health Advocate, the elimination of the

children’s commissioner. As I mentioned, the budget cut almost 12

percent in one fell swoop in the early 2000s. Those resulted in actual,

on-the-ground, negative consequences. It just saddens me that we lost a

decade when there had been clear, forward progress in this area. We have

to remember that budget decisions have an impact on individual little

children. We need to consider that when we make changes to budgets that

are so significant, such as those that were made in the early

2000s.

They were referred to by Justice Hughes, who was the next judge to

do a review of the child welfare system. He said that there was an

“unimaginable degree of change” within the system, which resulted in

more chaos in the child welfare system. And Justice Hughes was appointed

to look into the child welfare system because of another tragedy,

another tragedy that I was more personally associated with.

I was hired by the previous government to conduct an independent

review of the death of a child who had died on Vancouver Island. I was

asked to look into the circumstances surrounding that child’s death. The

report I wrote was delayed, and when it was finally released it was

fairly heavily redacted, but it led to Justice Hughes being appointed to

look at a system that had seen the elimination of all oversight, the

elimination of 12 percent of its budget and a regionalized approach that

changed the system from 11 regions to five, all in a very tight time

frame that resulted in some chaos.

Changes being made to the system to save money were misaligned

entirely, resulting in bad communication between offices. At no time do

I ever call into question the wishes of any social worker or the heart

of any social worker who is attempting to ensure a child is safe, but

when the system doesn’t support good social worker practice, we need to

look at the system. Justice Hughes did look at the system and said that

we need oversight of the child welfare system.

[1:35 p.m.]

In the mid-2000s, work that was done in this House, with the

opposition facing a government that had been in power when these

positions were eliminated — when these budgets were cut, when these

systems were interrupted, when the progress was diverted — resulted in

government deciding to create the position of a Representative for

Children and Youth.

It wasn’t a child advocate. It wasn’t a children’s commission that

just simply reviewed the deaths of children. It was an office that would

be able to look at the systems, look at certain trends, look at the

challenges, find solutions and bring people together. Mary Ellen

Turpel-Lafond was the first representative. Bernard Richard was the

second representative. Jennifer Charlesworth is the third.

Throughout that period of time, we’ve been talking about the

importance of giving back or allowing Indigenous communities to reassert

the authority that Indigenous communities should have over how their

children are nurtured, protected and raised.

There’s a long history. What I’m saying is that there’s a long

history of the child welfare system in this province. Ultimately, what

we’re looking at, still, is that we need to make sure children are safe.

Children need to be safe. When a child is not safe in a certain,

particular situation, sometimes they can’t stay in that situation, but

it’s what happens now, what happens when that is a determination now,

that is going to change.

It’s going to be more likely that a family member will be

supported to look after a relative’s child. It’ll be more likely that

the community will be involved in ensuring that that child is protected.

No longer will it be the outside community coming in and saying: “This

is what we think you need to do. This is what you should do.” It will be

the community coming together and saying: “This is how we resolve the

issues.”

I just want to acknowledge the Indigenous child protection social

workers who have been trying to do this work in a system that really

provided limitations to their abilities. I remember practising “child

welfare on reserve,” thinking: “Now the province is telling me that I

can’t have this child stay at their auntie’s house and provide some

financial assistance to the auntie to look after the child, unless I can

prove that the child is in danger.”

I would rather — and every social worker I know would rather —

address an issue before there is danger. You can see a situation that

isn’t good, and you know that it would be better if a relative looked

after the child or children for a few days, until a particular situation

passed. But the structure didn’t allow for that to happen. Sometimes

social workers just said: “Well, auntie is going to look after the

child. We’re going to have to figure out how to ensure that there’s

money for food and money for clothes.”

Social workers had to do a lot of creative work to keep families

together. There are so many social workers — Indigenous social workers

and their supporter-ally social workers, across the province — who

fought very hard to keep families together, fought very hard against an

external system that wanted you to go to court, wanted you to go into

all these structural minefields, instead of just having the community

come together.

[1:40 p.m.]

So many social workers that I had the honour to work with — whose

own families were impacted by the child welfare system, whose relatives

were impacted by the child welfare system — still knew that for the time

being, we need to ensure that children are safe. But we have to be

thinking about how to strengthen our communities and ensure they remain

strong. The work that’s been done by Cindy Blackstock and by the child

caring society, the work through the Human Rights Tribunal, is

essential.

The fact that the federal government has finally recognized that

they were underfunding child welfare, child protection, family support

services on reserve…. There were so many meetings saying: “Well, why

don’t they give us some money for prevention? Why don’t they give us

some money so we can keep our families strong? They only give us money

when we take children away.”

You had to be creative to keep families together and still get

federal funding. You had to be creative. I acknowledge that many

child-serving agencies on reserve were creative. They did a lot to

preserve the strength that did exist in those communities. They did a

lot to force the changes that we see happening now to happen.

It always takes longer than we imagine it has to. It takes longer

than we would hope. But when the change comes, it’s good to acknowledge

that it is the right and important change.

Indigenous child welfare is one of the main reasons why I entered

into politics — when I reviewed the death of a child and tied that death

indirectly and directly to a system that had failed, a system that had

been busted up, a system that was based on a bad moral foundation in the

first place.

When we can see the rightful authority over child welfare going to

where it belongs officially, with support, with our system getting out

of the way…. My sincere hope is that the communities that benefit from

this change soon will see improvements in all aspects of the community’s

life, without the fear of external agents coming in and disrupting the

community.

Poverty, obviously, is a fundamental underpinning for child

welfare issues wherever they are. I’ve worked on reserve. I’ve worked in

non-Indigenous communities as well. Oftentimes we just have to ensure

that we continue to focus on reducing poverty, ensuring people have

access to educational opportunities, to work opportunities, to training

opportunities, to adequate sporting and cultural events.

We do have a role in ensuring that our communities are safe. As

government, we need to be focused on reducing poverty, focusing on

opportunities, breaking down barriers, implementing the calls to action,

implementing expectations that people have of the United Nations

declaration. These are all important steps. These are all important

steps to protect those communities from the negative ongoing impacts of

colonization.

It’s a good day. It’s a good day that we have this legislation in

front of us. It’s not a victory lap kind of day, because we recognize

the harms already done, the intergenerational harms already

done.

I think of children and grandchildren of residential school

survivors. There were some pretty strong fights.

You should be proud of your parents and aunties and

uncles.

It’s a good day.

M. Lee: Madam Speaker, I will say that I am the designated speaker for the

official opposition here this afternoon.

[1:45 p.m.]

Let me just thank the Minister of Social Development and Poverty

Reduction for sharing his personal commitment and journey in this very

fundamental area of welfare for Indigenous children and youth here in

the province of B.C. I certainly want to also recognize the comments, of

course, and the work of the Minister of Children and Family Development

as well as the critic, my colleague the MLA for West

Vancouver–Capilano.

I think, as the House just heard from the Minister of Social

Development and Poverty Reduction and others, that the history, which is

not just the B.C. history — it’s the history of our country — the way

that, since the time of contact, Indigenous families and children have

been treated, the systems that have been built up over time and the

damage, the intergenerational trauma that has caused, that we are still

paying for today, in so many ways….

The minister just talked about…. The member for West

Vancouver–Capilano spoke to, at the end of her comments, the need to not

just address this in terms of the welfare of Indigenous children but all

of the other inequities in our society, which include access to housing,

clean drinking water, health care and education, the kind of work that

we need to do here in this chamber with First Nations and Indigenous

nations across our province.

I’ve had the opportunity, through the course of this week, to be

involved, with the member for Prince George–Valemount, our Health

critic, on another bill — Bill 36, the health professional colleges act

— in response to what the Minister of Health provided — an opportunity

for me to talk, at the outset of that committee stage debate, with him

about the nature of the consultation involved for that 600 page bill.

It’s a piece of work. Another piece of work that’s taken place over

many, many years — over three years — even before UNDRIP was unanimously

adopted in this House.

This Bill 38, for reasons that have been highlighted by others —

and I will walk through some of that, as well, myself — is built upon

much of that work both by the federal government in response to UN

declarations and UN conventions, the TRC calls to action, the CHRT

rulings and court challenges and, of course, in our province, the work

that was done that dates back some years. The level of consultation

matters.

There are many aspects of this bill. One of the fundamental

aspects here, of course, is the need, as the DRIPA action plan calls

for, item 4.17, to: “In collaboration with B.C. First Nations and Métis

peoples and Inuit, continue implementing changes to substantially reduce

the number of Indigenous children and youth in care through increased

prevention and family support services at all stages of contact with the

child welfare system.”

[1:50 p.m.]

This bill comes as part of that continued work of this government

that we saw in 2019, with other amendments, for example, to the Child,

Family and Community Service Act. It also, in terms of what the framing

of this bill does, creates that jurisdictional space between federal,

provincial and Indigenous laws. Indeed, we see, of course, in

recognition of the space that was created in Bill C-92, federally,

follow-on space that needs to be created here provincially under the

Adoption Act and the Child, Family and Community Service Act.

It’s that constitutional space that we’re all trying to work

through that will provide the space for Indigenous governing bodies,

First Nations, Indigenous nations to take care of their own children, to

protect them, to ensure that they’re kept safe.

Looking at that, when you look at the federal, provincial and

Indigenous legal frameworks, there’s a lot of work to be done. This bill

is the next step forward in that work, but this bill needs to be done in

a manner that is co-developed in partnership with First Nations and

Indigenous nations.

That’s the reason why, when I talk about the opportunity to

review…. And this is my approach here — to certainly highlight for

Minister of Children and Family Development the areas of this bill that

my colleague as the critic for her ministry, and myself and other

members…. I’m sure the member for Skeena, for example, will join us in

this effort at committee stage to pursue various aspects of this bill.

At the outset of that committee stage, I certainly would like the

opportunity to review with the minister the scope, the depth, the

breadth, the involvements, the process, the nature of the consultation

process.

Consultation, of course, in the context of what we’ve been doing

over the last number of years, particularly in view of UNDRIP and the

DRIPA act, has been commitments, as well, to co-develop frameworks.

Indeed, I already cited one of the specific DRIPA action plan items.

Another one which is related, which I’ll speak to as well, is 4.16. It

uses the term “co-develop.” “Co-develop a B.C.-specific fiscal framework

in partnership with First Nations, Métis and Inuit, and in consultation

with key Indigenous organizations, to support and move forward with

jurisdiction over child and family services.”

I just draw the House’s attention, remind the House that in both

of these action items it uses the words “collaboration” and

“co-develop.” That is more than notification. It’s more than

non-disclosure agreements. It’s more than saying to Four Host First

Nations, as we saw with the 2030 Olympic bid — this is government saying

— “Give us your feasibility study,” and government making the decision

without further discussion, any questions about that study, any

opportunity to look for solutions — no discussion.

We have seen, this week and last week, a whole range of approaches

by this government to consultation, to collaboration, to co-development

and, indeed, to reconciliation.

[1:55 p.m.]

If I go back to the Bill 36 discussion, as an example of the

approach that government is using to work with First Nations and

Indigenous nations in this province, what I heard from that minister….

And I hope to hear from this minister specific references to, for

example, UNDRIP, the articles that are attached to the DRIPA act — the

ability and the opportunity to review with the minister, and for that

minister to identify, the specific components of Bill 36 against those

articles.

What we heard about were open houses regionally, a tracking of

issues, responses to those issues, PowerPoint overviews of the

legislation and, indeed, sharing copies of specific sections of the

legislation. And no non-disclosure agreements. The Minister of Health

was able to confirm with me that none of these nations had to enter any

non-disclosure agreements to review and comment on what is a very

complex bill.

As we speak in the Douglas Fir Room, our colleague the member for

Prince George–Valemount continues, on what is day 3 now, on committee

stage of a very complex bill. I hope that, as members, we will continue

to have the opportunity to participate in that committee

stage.

I’m missing that right now, in order to speak to this bill,

because we have a second House speaking to another bill. I was able to

spend two hours with that member so far reviewing the Indigenous-related

components of that bill that impact the recommendations coming out of

the In Plain Sight report, DRIPA as well as UNDRIP itself, of

course.

The ways in which, as it’s from the guiding principles, and the

work that’s needed to be done with health professional colleges to deal

with anti-discrimination measures and how they govern themselves and how

they govern their health care professionals…. That’s important

work.

Here what we heard, in contrast…. I would certainly join my

colleagues in recognition of the honoured guests in this chamber last

Wednesday. We certainly heard about the friendship and the mentorship by

the current Minister of Children and Family Development with Elder

Shirley Alphonse, for example. A lot of respect to her for the work and

for her voice and for her guidance.

We heard the good words of Chief Judy Wilson and Chief Jerry Jack,

who I’ve had multiple conversations with over the course of the last

period of time, and, of course, the wise words of Coun. Hugh Braker,

who, again, the member for West Vancouver–Capilano quoted here. We also

heard from representatives of four other First Nations that day. It was

in another ceremony, in the Hall of Honour, that preceded first reading

of Bill 38 in this chamber.

I must say that I was particularly struck…. As the minister

responsible for this bill said, it was an honour to see other Indigenous

nation leaders there, coming from different parts of the province to be

part of this occasion, wanting to understand this legislation, not

knowing the true details of this legislation. I think that’s telling a

little. They travelled a fair distance to be here that day, yet I was

under the impression, in my conversations with them, informal as they

were, that they really didn’t know the details.

[2:00 p.m.]

Imagine my surprise, Madam Speaker, when one of those

representative First Nation speakers, the ones that this government

invited to speak on this occasion, one of those leaders representing the

Splatsin Nation…. The Splatsin Nation is one of the four nations that

are involved in working out arrangements under this current legislation,

meaning as amended in 2019, in view of Bill C-92 federally, and also

these amendments that we are discussing today and, hopefully, into the

days that come.

I was struck by Councillor Theresa William of the Splatsin Nation.

She went up and made her comments. I will circle back about my

conversation with her after, but I will say that the current Minister of

Indigenous Relations and Reconciliation, in thanking Councillor William

for her comments, said: “And thank you for the constructive

criticism.”

Of course, when I had the conversation with Councillor William and

with others from that nation — and their legal counsel, who was present

as well — I asked for some clarification. I’d heard what she said, but I

wanted to know more. She said she was being nice. What she said during

the ceremony was that she didn’t believe….

She was of the view that her nation wasn’t properly consulted,

that they did not have the full opportunity to be consulted on this

bill, that she didn’t really know the full details of this bill that was

being presented — the bill that she was just invited to speak about at

this special ceremony.

[S. Chandra Herbert in the chair.]

The reason for that, as she explained, was that her nation had not

entered into a non-disclosure agreement. As a result, because there was

no non-disclosure agreement entered into, they were not provided copies

of the proposed legislation in advance of the tabling of that Bill 38 in

this assembly that day.

This is an example where we are looking at the Splatsin Nation,

which…. When we talk about caring for Indigenous children, they made

efforts to do that in a formal, structural way with bylaws that they

passed dating back to 1980, as a nation. They have built up a system of

care over decades. And yet when it comes to this legislation — the

legislation, as I said earlier, that manages through the jurisdictional

overlaps federally, provincially and with Indigenous laws for self

governing nations — this nation, their input was not even

received.

I know, as we’ve talked about on this side of the House, with the

official opposition, members will utilize whatever time we have to check

in with nations whose territories our constituencies share. I’ve had

some opportunity to do that, including with some nations in other parts

of this province. But these conversations are only indicators of the

gaps in the consultation process.

Again, I point out the differences. Bill 36 — not subject to

non-disclosure agreements. Bill 38 — subject to non-disclosure

agreements. As a result, as the member for West Vancouver–Capilano and

other members in our caucus have heard from other nations that express

concerns…. They express concern about their level of input, their level

of opportunity to review this legislation, the fact that their voice,

their input, was not truly invited or received.

[2:05 p.m.]

To complete the picture of what we’ve seen in the last two weeks

when it comes to this government’s approach, I go back to what happened

the day after this special ceremony that was on the floor of this

Legislative Assembly.

What happened there was — we all heard an announcement from the

Minister of Tourism — that this government was not prepared to support

this historic, first-of-its kind 2030 Olympic bid, put forward by four

host First Nations in our province — the Musqueam, Squamish,

Tsleil-Waututh and Líl̓wat Nations — that they had been working on for

well over a year and that the current Premier had met with at the outset

and invited them to continue their work and that the current Premier had

a check-in with midstream.

Again, no flags raised and, in fact, feedback…. This is the

process of reconciliation and consultation. Co-development feedback was

given to these four First Nation leads to make some accommodations to

involve other Interior First Nations, to involve Sun Peaks. Those

accommodations were made by these First Nations to their 2030 Olympic

bid.

What happened last Monday, ten days ago, was a meeting…. Well,

just prior to that, as I understand, is there was a request from this

government to share the conceptual study and feasibility study that that

leadership group had put together. That was provided to government. No

discussion, no questions, no follow-up, no issues raised. Silence. That

is not co-development. That is not collaboration.

So when we talk about the approach to this Bill 38 — and I give

the example of Bill 36 and what happened last week in terms of the 2030

Olympic bid — it causes me to really question what we’re doing here with

First Nation leaders and Indigenous nation leaders in this province.

It’s that relationship of trust and collaboration. Partnership is what

we need to be building.

How damaging was it for this government, for that Minister of

Tourism, without any further discussion in receipt of that study, to

turn around and say, on a Zoom call, to these nation leaders: “Cabinet

has made a decision”? Nation leaders were, presumably, remarkably

shocked by that, given the lack of consultation, lack of co-development,

lack of collaboration.

First Nation leaders say: “Well, can you give us a couple of days?

Can we have…? Can we get people around the table?” What does that mean?

Federal partners, city of Vancouver partners, Whistler, Kamloops and the

nations. “Can we get everyone around the table and look for

solutions?”

Solutions don’t come. Silence. Of course, we hear the announcement

on the Thursday, the day after this historic ceremony to introduce this

Bill 38 on the floor of this House.

To add insult to injury, of course — as members were debating,

yesterday, Bill 42 — when I talk to First Nation leaders in the

aftermath of this, they just shake their heads. This is the reason why

Chief Wayne Sparrow of the Musqueam had said: “That action that the

government took last week, that decision in the lead-up to the incoming

Premier taking his chair, walked back reconciliation a number of

steps.”

[2:10 p.m.]

When I talk about what’s behind this bill and the framing of this

bill, I respect the fundamental need for this further step forward. But

I’m very concerned about the approach this government is using. I’ll say

that when I attended the First Nations leaders summit about two weeks

ago, when one of the executive members of the summit spoke to wrap up

the session on the First Nations Summit political executive, she said

that the concern that the First Nations Leadership Council has,

generally speaking, is that we continue to see a lot of forward

movement, which is important, like this Bill 38.

I know that there are members, including Cheryl Casimer, for

example, and Kúkpi7 Judy Wilson, who’ve done significant work on this,

among other areas: the important reframing of how Indigenous children

are taken care of by nations — to create that space.

But the comment that came in was really saying to this government,

as I hope they’ve heard directly as well, that there needs to be a

greater sense of priorities as to what we’re working on together. There

need to be greater resources provided to nations in order to get through

this collaboration, cooperation, reconciliation process, and these

processes need to be streamlined.

It does cause me great concern when I hear from other nation

leaders about their comments about this bill, that we are operating

here. We are clearly here, as opposition members, not to speak on behalf

of Indigenous nations. But that’s the point. The point is that what I am

seeing and hearing is that there are gaps in the process here. It causes

me to question the commitment of this government to ensure that that

voice and that partnership are there.

I hear some of that from the Minister of Health on that other

bill, Bill 36. And I must say, as I said to that minister, I found his

responses more fulsome, more comprehensive than I’ve heard from pretty

much any other minister in this government. I hope at committee stage,

from this Minister of Child and Family Development, we’ll hear, in a

very fulsome way, the scope and scale of that level of consultation and

collaboration and involvement. Certainly, I would urge all members of

this House to reach out to their local First Nations to have those

conversations.

I would say that I’ve also heard from some of the delegated

agencies that their voice hasn’t been heard either, that they were not

consulted. We have agencies in this province that represent and are

involved in supporting Indigenous children and youth — for over 30

years, in regions of our province — that have not been consulted, whose

expertise has not been accessed.

I know that the minister must be receiving letters from these

organizations as well. I would hope, if we don’t receive copies of those

letters directly, that we are provided with copies of those letters,

because we need to see that input too in order to go through, at the

committee stage, the complexity of this bill.

Let me just say that in this Bill 38, it will be helpful, after we

get through those initial parts of the process, for the minister to walk

through with ourselves, at committee stage, how Indigenous nations will

be utilizing this framework when it comes to the protection of their

children, both on and off reserve lands — and the mix of

responsibilities that a nation would take on.

[2:15 p.m.]

Now, I appreciate, of course, that we are talking about creating

space, jurisdictional space. That would include the jurisdictional space

for the director. I do know that as we look at some of the sections of

this bill, which I will highlight in my comments here in the time I have

remaining as the designated speaker, when we talk about looking at the

authority of the director under this act, the director still has some

jurisdiction. It’s that overlapping jurisdiction that is a concern to

nations, as we’ve heard. What is that pathway forward, in other

words?

I think to understand that it will be important for the minister

to walk us through how this framework, Bill 38, fits within Bill C-92

federally. We do know, of course, that when that federal legislation

came into place in 2020, it did set the table, so to speak, for this

next step for provinces to do. As has been said, and qualified by what I

said at the outset of my speech here, this is an important step in the

ongoing work of advancing reconciliation and affirming Indigenous

people’s right to self-government and self-determination.

We all recognize that for far too long, Indigenous children have

been overrepresented in the child welfare system — Indigenous peoples

comprising 10 percent of the general population yet representing 68

percent of children in care. We know, as we go through statistics, that

these are indicators of the challenge. They demonstrate the unjust

disproportionality of those challenges faced by Indigenous families and

the systematic disparities that they face.

As we saw in the ministry’s own most recent service plan, an

Indigenous child is nearly 18 times more likely to be removed from their

parents than a non-Indigenous child. We see the system that’s been built

up generationally here — the intergenerational trauma that goes so deep

into Indigenous communities and causes so many unfortunate outcomes for

the children, youth, parents and grandparents of those Indigenous

communities.

We know that in Canada, as was mentioned by the member for West

Vancouver–Capilano, 52.2 percent of children in foster care are

Indigenous, but they account for only 7.7 percent of the population of

children in our country. This means that 14,970 out of the 28,665 foster

children in private homes under the age of 15 are Indigenous. These

numbers are even more significant in British Columbia.

I will say — in response, in part, to the Minister for Social

Development and Poverty Reduction — that when we look at the unfortunate

history in our nation, which I do think we have to keep in mind…. It

strikes me, in hearing him speak about that, that we also need to keep

in mind that when you look at some of the other federal statistics, as

put out by Indigenous Services Canada’s First Nations child and family

services program….

They put out a table looking at the number of First Nations

children in care, the average maintenance costs per child, total

expenditures for maintenance and total expenditures for First Nations

child and family services, federally, going from 1998 to

[2:20 p.m.]

I will only say that when you stand back and look at the number of

children in care, which, in 2019 to 2020, was 9,330…. According to this

table, the average maintenance costs per child, $56,094.11; the total

maintenance costs, $523 million; the total actual First Nations child

and family services expenditures, $1.470 billion.

I know that there’s a lot of emotion and personal tragedy that we

can share in this House. But by God, what have we built here? Why has it

come to this — this system that is sucking up all of these dollars, for

government, in this arrangement, to be in place?

Now, I certainly recognize the work of the Representative for

Children and Youth. There have been successive individuals who have

served in that capacity. Earlier this year, the comment that came in the

report from that representative said that the funding for child welfare

services for Indigenous kids in B.C. is deeply flawed and that there is

an urgent need to overhaul practices to make data accessible and

transparent. She called the current practice fiscal discrimination and

said in the report that the province is committed to reconciliation and

has to change immediately.

Well, again, what we’re not seeing in this bill, which, again…. At

the committee stage, I would expect we’ll have the opportunity to

discuss at length with the minister an understanding of how this

government is co-developing that specific fiscal framework in

consultation and in partnership with nations and Indigenous

organizations in our province. That parallel action in the DRIPA action

plan is just as important as the legislative jurisdictional framework

that we’re talking about in this Bill 38. This certainly is what is

identified by the Representative for Children and Youth.

My reference to those amounts federally is only an indicator of

the level of funding for child welfare for Indigenous children that we

are all putting towards this, that those funds clearly need to be

accessed and resourced in a different way to ensure that we build out

the right capacity with First Nations on their lands. It’s been

commented, even federally, during the discussion of the Bill C-92

debate, about the hazard of putting in a jurisdictional framework

without the necessary resources.

Of course, I will just say that when we look at the broader

objectives of reconciliation with the First Nations, we need to think

broadly. We can’t think just narrowly. It is very important to

fundamentally address child welfare for Indigenous children and

families. No doubt. But it is also just as important to ensure that

we’re working with First Nations, Indigenous nations to build a stronger

economic path.

[2:25 p.m.]

It was a total failed opportunity by this government to make the

decision they did last week to kill that 2030 Olympic bid, not just

because of the cultural, the sporting, the tourism and all of the other

benefits. But this is an example of what a true partnership with First

Nations ought to be.

As we look at the history…. I do think it’s worth just reflecting

on the history. I know other members who have done that in their ways as

well. When we look at the Indian Act, introduced in 1876, it continues

to be a framework to separate children from families.

It’s been cited and noted that

section 6.1, for example — when a

First Nations woman who left her reserve and married a non-status or

non-treaty status man, that woman automatically revokes her and their

children’s treaty status so that they are no longer deemed to be a

member of their First Nation community, no longer allowed access to

their community’s inherent treaty rights.

We know, with all of the discoveries and confirmations at

residential schools, including in Tk’emlúps, that even with the last

residential school closing in 1996, the separation of children from

their families, culturally and emotionally and physically, has caused so

much trauma intergenerationally for Indigenous communities. In fact, in

1959, there was a

section 88 introduced, which provided the legislative

capacity for provinces to take over areas that were not covered by

treaty, which included child welfare for Indigenous

communities.

This particular

section is very much underpinning much of the

response, the reframing under Bill C-92 and this Bill 38, which is a

recognition that the provinces, as much as they may have taken over

legislative capability, are now creating that space for Indigenous

nations, recognizing their right to self-government, to be able to move

forward to care again for their children and youth. This change in 1959

opened up the possibility for provinces to become more directly involved

in the relationship between Indigenous peoples and the Crown, which

resulted in the Sixties Scoop.

I recently had the opportunity to reconnect with a high school

classmate of mine at a reunion of sorts. He wasn’t a fellow that I knew

very well in high school, because he came in for the last two years of

our high school, and we were a fairly big class. He said to me that

after he graduated — it was 20 years later — he discovered the full

truth of his heritage, that his mother was part of that Sixties Scoop

and that he is Métis. He went into foster care, but he did reconnect

with his birth mother and learn more about his heritage.

Today, he works for a delegated agency, helping to support

Indigenous children and youth. He is an example, of course — and there

are so many others — of what happened with that Sixties Scoop and the

power to apprehend children and separate them from their

families.

We know that in 1959, as has been identified, the proportion of

Indigenous youth and children in the child welfare system was 1 percent,

but this increased at an exponential rate, until by the end of the

1960s, Aboriginal or Indigenous youth and children made up 30 to 40

percent of the system and that the total estimated number of youth taken

from their families had ballooned to nearly 20,000.

[2:30 p.m.]

Cindy Blackstock, who’s the executive director with the First

Nations Child and Family Caring Society of Canada, once cited that

between 1989 and 2012, First Nations, Métis and Inuit youth had “spent

more than 66 million nights” in the child welfare system, which is

equivalent to 187,000 years.

I know that there are so many ways to describe what has occurred

here over many decades — again, the personal and financial tragedies,

the trauma that has been inflicted on Indigenous communities. I do think

that it’s important that we keep in mind, as a result, that what we are

doing, of course, is looking at a bill that takes the next step. We are

talking about how you unwind a system that took more than 100 years to

be built up, a system which has been used to disenfranchise Indigenous

peoples in Canada.

The question is: how do we work with Indigenous nations to ensure

that there are the right supports for children in their best interests?

That term is another important term, as defined under the current act

and as being amended here, to include what the best interests of

Indigenous children means. That is a particularly important provision to

get into at committee stage, and I will make some more comments in the

balance of time that I have.

We know that B.C.’s Representative for Children and Youth has been

urging the government to focus on belonging for Indigenous children and

to ensure that we can better help children in government care to realize

the valuable connections to family. Again, this is in part to deal with

that separation through the history of the current child welfare system

in our province and in this country.

We know, as we’ve talked about here, that it is this government’s

intention with this legislation — and this will be confirmed at

committee stage — to substantially reduce the number of Indigenous

children and youth in the child welfare system. It is doing that by

enabling Indigenous nations and this provincial government to work

collaboratively in a multi-jurisdictional model so that Indigenous

communities will have the choice which model they choose to

implement.

That is part of the challenge here as we go forward. It’s part of

the challenge and the complexity that the member from West

Vancouver–Capilano spoke about as well — to be very mindful about the

existing restrictions under the current act, the overlapping

jurisdictions that still exist, how we create that space for Indigenous

nations to go forward and what that transition looks like, recognizing,

as I have said, that it’s just as important to understand and appreciate

what that fiscal model is going to look like between nations and this

government.

Through all of that, fundamentally, we all recognize that it is

the safety and well-being of children that must be paramount in all of

the considerations. We need to ensure, through the review of Bill 38,

that children are at the centre of all of this — their care and their

safety.

We know that, with First Nations and Indigenous nations, care for

their children is fundamental. That is one of the most sacred things to

them, as it is to all of us. We share that common understanding, and

what we’re talking about is reworking this current system with the

constraints that have been put on Indigenous nations and those

children.

[2:35 p.m.]

I would say here that I’d like to take the opportunity to talk

about the lead-up to where we’re getting to on this bill. Some of that

has been noted. We know that in June of 2017, the Truth and

Reconciliation Commission of Canada, in their calls to action, called

for the federal, provincial and Indigenous governments to work together

with respect to the welfare of Indigenous children and called for the

enactment of federal legislation that establishes national standards for

the welfare of Indigenous children.

Indeed, the first five actions set out important actions to be

taken. Seven years later we’re still at it, and I know that as much as

we focus on UNDRIP, both federally and provincially here in this

province, it’s just as important to be focused on those Truth and

Reconciliation Commission calls to action.

I would just like to read

into the record, because it is fundamental, what those calls to action

call for: “We call upon the federal, provincial, territorial and

Aboriginal governments to commit to reducing the number of Aboriginal

children in care by (

i) monitoring and assessing neglect investigations;

(ii) providing adequate resources to enable Aboriginal communities and

child welfare organizations to keep Aboriginal families together where

it is safe to do so, and to keep children in culturally appropriate

environments, regardless of where they reside.”

As we get into the balance of my comments here and in committee

stage, it’s important that we reflect on these words: “…where it is safe

to do so, and to keep children in culturally appropriate environments.”

That is what the minister for Social Development and Poverty Reduction

had referred to, but also “regardless of where they reside,” whether

it’s on treaty lands or non-treaty lands.

I do think there’s an important distinction that is made within

the operation of this bill, as to how this bill, either through the

statute itself or through the regulations that will follow, will

operate: “(iii) Ensuring that social workers and others who conduct

child welfare investigations are properly educated and trained about the

history and impacts of residential schools; (iv) Ensuring that social

workers and others who conduct child welfare investigations are properly

educated and trained about the potential for Aboriginal communities and

families to provide more appropriate solutions to family healing.”

That’s the awareness and understanding of culturally appropriate

care.

And: “(

v) Requiring that all child welfare decision-makers

consider the impact of residential school experience on children and

their caregivers.”

The second action is: “We call upon the federal government, in

collaboration with the provinces and territories, to prepare and publish

annual reports on the number of Aboriginal children — First Nations,

Inuit and Métis — who are in care, compared with non-Aboriginal

children, as well as the reasons for apprehension, the total spending on

preventive and care services by child welfare agencies and the

effectiveness of various interventions.”

I think, here again, this particular action is an important one to

reflect on as we consider the implementation, the structuring of the

framework under Bill 38 — that we have the data.

We know that, in this bill, there are provisions for

information-sharing. That information-sharing will be helpful to

Indigenous nations in order to assess their decisions, how they will

decide what is the best care for their children, how they will decide

how to intervene, whether to utilize services that they’ve built up,

supports within their communities, or whether to continue to work

jointly or otherwise with the existing resources in our child welfare

system.

These will be important decisions for nations to be able to make

themselves for the care of their children. But it will be important, of

course, to recognize, again, the spending, where the resources are

going, how the resources are being expended, the accountability for

that, the recognition of that and how effective those interventions

are.

The third action is: “We call upon all levels of government to

fully implement Jordan’s principle.” I will speak to Jordan’s principle

more at length here — just to note it, fundamentally, as we reflect on

what Jordan’s principle says and the reason for it.

[2:40 p.m.]

We recognize that no Indigenous child should be found as Jordan

was, in that place where he wasn’t getting the care he needed because

there was jurisdictional misdirection, let’s say — conflict,

responsibility not being taken. We can’t have that happen. We can’t have

an Indigenous child or any child not getting the care they need because

of some jurisdictional conflict.

No. 4:

“We call upon the federal government to enact Aboriginal child

welfare legislation that establishes national standards for Aboriginal

child apprehension and custody cases and includes principles that (

i) affirm the right of Aboriginal governments to establish and maintain

their own child welfare agencies; (ii) require all child welfare

agencies and courts to take the residential school legacy into account

in their decision-making; (iii) establish, as an important priority, a

requirement that placements of Aboriginal children into temporary and

permanent care be culturally appropriate.”

No. 5:

“We call upon the federal, provincial, territorial and Aboriginal

governments to develop culturally appropriate parenting programs for

Aboriginal families.”

As we just walked through each of those calls to action, I think

it’s important that we keep those calls to action in mind. I tried to

highlight a few elements of that. I’m sure we will have the opportunity,

with the minister, to talk through — apart from something I’ll come to

in a moment, again, the DRIPA action plan — the specific items that are

relevant to this bill but also the nature and the elements of those

calls to action and how that is being framed into and addressed by Bill

We recognize that…. I mentioned earlier about the Canadian Human

Rights Tribunal. Unfortunately, in the history of our country,

Indigenous nations and communities leaders, we’ve found, of course, have

to go challenge. And they have…. I was reminded, when I was at one of

the gatherings for First Nation leaders, when a leader cited, again, the

time when Indigenous peoples and nations didn’t have the right to have

legal representation. But it’s been those years that they’ve been able

to advocate for their own rights.

On January 26, 2016, the Canadian Human Rights Tribunal had issue

with its decision relating to a complaint that was originally filed in

February of 2007 by the First Nations Child and Family Caring Society.

The Assembly of First Nations alleged that the Department of Indian and

Northern Affairs’ provision of First Nations child and family services

and their implementation of Jordan’s principle was flawed, inequitable

and discriminatory under the Canadian Human Rights Act.

I cited some of the figures a moment ago in my comments about what

that looked like in terms of the nature of the services that the federal

government provides. I will now just talk for a moment, because I do

think it’s important that we understand that third call to action, which

calls on all levels of government to fully implement Jordan’s principle.

That call to action came in 2015. In January of 2016, we have this

decision, which again refers back to the fact that the government of

Canada had failed.

Jordan’s principle is named, of course — for many members who know

this already — in memory of Jordan River Anderson who, as a young boy

with the Norway House Cree Nation in Manitoba…. He was born in 1999 with

multiple disabilities and stayed in the hospital from birth. When he was

two years old, the doctors said that he could move to a special home for

his medical needs.

But here’s the challenge, Mr. Speaker. The federal and provincial

governments could not agree on who should pay for his home-based care.

That jurisdictional conflict — Jordan, unfortunately, fell in the gap.

He stayed in the hospital until he passed away at the age of

five.

Jordan’s principle is the promise that no Indigenous child would

experience inequitable access to government-funded services again and be

caught between jurisdictions. This has come to stand for ensuring that

there are no gaps in government services and no permitting

jurisdictional disputes to become a barrier to the provision of needed

services and supports for children.

[2:45 p.m.]

I would say that it also stands for recognizing that there is some

standard of care to ensure substantive equality.

I think the background around Jordan’s principle is something we

need to keep in mind as we look through Bill 38. There are multiple

jurisdictional provisions, both in terms of paramountcy…. We’ve seen

that between the federal government and provincial laws and Indigenous

laws. Certainly, Bill C-92 has a clear provision, which I’ll comment on

in a moment further. Bill 38 contemplates similar paramountcy for

Indigenous laws over provincial laws, as defined in the bill

itself.

We know that Jordan’s principle is there to ensure that First

Nations or Indigenous children living in Canada can access the kinds of

supports and services they need when they need them and that the funding

can help with a range of health, social and educational needs, including

the unique needs that Indigenous peoples, two-spirit and LGBTQ2S+

children and youth and those with disabilities have.

We know that what the CHRT, the Canadian Human Rights Tribunal,

found was…. The program’s two main funding mechanisms had incentivized

removing First Nations children from their families, and the federal

government’s narrow

interpretation and implementation of Jordan’s

principle resulted in service gaps, delays or denials of service. That

had an overall adverse effect on Indigenous children and families on

reserve.

Well, of course, more recently, when we look at the federal

jurisdiction…. I think it’s important, again, that we situate what we’re

doing here in British Columbia within the understanding of the federal

framework.

In January of this year, as I think most members here would know,

the federal government had reached a $40 billion agreement with the

First Nations to settle the two class action lawsuits. That agreement

set aside $20 billion for individual compensation and $20 billion for

long-term reform of the on-reserve child welfare system. Again, I would

emphasize it’s the on-reserve child welfare system that those funds are

being put to.

We’ve seen, as I’ve talked about, the reference to Bill C-92, the

act respecting First Nations, Inuit and Métis children, youth and

families. When the federal government committed the $20 billion over

five years for long-term reform, it was to ensure and deal with that

level of discrimination that was identified by the Canadian Human Rights

Tribunal, that it be addressed. It’s in that context, in the context of

the federal Bill C-92, that this Bill 38 comes forward.

Last week the Canadian Human Rights Tribunal ruled that the

agreement, which I mentioned, between government and the Assembly of

First Nations did not meet the requirements of its initial ruling.

Therefore, the payout and the restitution to those Indigenous children

and families, the first set of $20 billion, are now held up.

We know, when we stand back and look at the federal government’s

existing framework currently, that it does affirm the right to

self-determination of Indigenous peoples, including the inherent right

of self-government. This is language, of course, that is there in the

federal act, Bill C-92. It includes jurisdiction in relation to child

and family services.

[2:50 p.m.]

Under this federal framework, it is there to respect the diversity

of all Indigenous peoples, including the diversity of their laws,

rights, treaties, histories, cultures, languages, customs and

traditions. It is there to take into account the unique circumstances

and needs of Indigenous Elders, parents, youth, children, persons with

disabilities, women, men, gender-diverse persons and two-spirit

peoples.

It is there to address the needs of Indigenous children and to

help ensure that there are no gaps in services that are there in

relation to them, whether they reside on reserve or not. It is also to

eliminate the overrepresentation of Indigenous children in child and

family service systems and to work in cooperation and partnership with

Indigenous peoples to support the dignity and well-being of Indigenous

children and youth and their families and communities.

This federal framework is also established to achieve

reconciliation with First Nations and Inuit and Métis through renewed

nation-to-nation, government-to-government and Inuit-Crown relationships

based on the recognition of rights, respect, cooperation and partnership

and to engage with Indigenous peoples and provincial governments to

support a comprehensive reform of child and family services that are

provided in relation to Indigenous children.

Finally, the ongoing funding for child and family services is

predictable, stable, sustainable, needs-based and consistent with the

principles of substantive equality in order to secure long-term positive

outcomes for Indigenous children, families and communities.

That last item, in particular, has been a running theme through my

comments here today. It is a recognition that apart from the legislative

and jurisdictional framework that we’re looking at in Bill 38, the

federal and provincial funding resources are there to work with

Indigenous nations.

I will say…. This part, I think, the Minister of Social

Development and Poverty Reduction left out of his speech and his remarks

on this bill. Let me put it back in, in terms of recognition that the

work that we’re talking about, particularly…. I appreciate, again, as I

said earlier, that this has been a century in the making, regrettably,

and that we’re at a point of trying to unwind and make the appropriate

next-step changes.

That work didn’t just start under this government. For example,

when we look back at what was the First Nations leadership attending the

B.C. Cabinet and First Nations Leaders Gathering in September of 2015

with Premier Clark…. The Tripartite First Nations Children and Families

Working Group was formed in the fall of 2016. That particular two-day

session was an important session, in September 2015, to make forward

progress, to have the level of discussion.

Again, as I said earlier, we are on this path of having

collaboration, co-development. That process occurs at those types of

gatherings and summit meetings where you have First Nation leadership

present, not just key Indigenous governing bodies. I’m just looking back

at the language. It’s not even “governing.” It’s “key Indigenous

organizations.” That language is there in the DRIPA action

plan.

We need to recognize, of course, that the government’s commitment

to reconciliation is with the rights and title holders themselves, the

204 First Nations in this province. That is the commitment and

obligation under DRIPA.

That work, back in September 2015, led by Premier Clark, resulted

in this working group with First Nations forming in 2016, with

representatives from the Ministries of Children and Family Development,

Indigenous Relations and Reconciliation and Attorney General; the

federal government; and the First Nations Leadership Council, which, as

we know, is comprised of representatives from the First Nations Summit,

the B.C. Assembly of First Nations and the Union of B.C. Indian

Chiefs.

Let me just say here that regardless of who is leading this

government, whichever party it is…. We do recognize, of course, the

length of work that it’s taken to get to this stage. That work — done by

the leadership within the ministries that I named, in particular — which

has led to this bill, is well respected. But we know that to unwind the

system that’s been built up over a century is not easy. It is complex.

All the more reason to ensure that there’s the appropriate level of

consultation with First Nations and Indigenous nations in this

province.

[2:55 p.m.]

This working group work was also followed by the final report of

the special adviser on Indigenous children in care to that government,

under Premier Clark. That was Grand Chief Ed John’s Indigenous

Resilience, Connectedness and Reunification: From Root Causes to

Root Solutions . It was a report that was presented in November

of 2016 to the then Minister of Children and Family Development,

Stephanie Cadieux, as well as Premier Christy Clark.

We know that following all of this, in early 2017, under the

previous government, at least before the May 2017 election, the

Indigenous engagement branch and the partnership and Indigenous

engagement division began to engage in exploratory discussions with

Indigenous communities wishing to exercise jurisdiction over child

welfare. This is, again, a time period, under the previous government,

where they were working towards this same goal that’s being addressed

under Bill 38.

We’ve seen, by this current government, that there have been, as I

mentioned earlier, recent amendments to the Child, Family and Community

Service Act to address the overrepresentation of Indigenous children in

care, so to recognize those amendments that came into force in 2019 to

support Indigenous children to remain at home or in their community

through measures, including promoting the involvement of Indigenous

communities in child welfare matters prior to removal; enabling greater

information-sharing between a director under the CFCSA — that’s the act

that we’re talking about amendments to, apart from the Adoption Act —

and Indigenous communities; expanding the requirements to notify

Indigenous communities of proceedings involving children from those

communities; recognizing the shared responsibilities between and with

Indigenous communities and Indigenous families that they have for the

upbringing and well-being of their children; and lastly, affirming the

importance of Indigenous children learning about and practising their

traditions, customs, languages and belonging to their Indigenous

communities.

Around this time, of course, we know — this is 2019 — that the new

federal act came into place. I’ve talked about that here in terms of

First Nations being freely able to determine if they wish to have

jurisdiction for children and families and, if they do wish to do that,

the rules and the policies that would apply to their children and

families in Canada. It would not be any longer governed under provincial

legislation or rules exclusively, which is basically a recognition of

Indigenous laws and practices under a fully developed system for

children and families to emerge and develop in that space over

time.

[J. Tegart in the chair.]

I know, as we look at the work that Indigenous nations have done

here with the Child, Family and Community Service Act, as it was amended

in 2019, and now under the proposed amendments in Bill 38, the federal

act, Bill C-92, and DRIPA, that there’s a directional move to support

Indigenous nations and to increase their involvement, decision-making

authority and jurisdiction in relation to child and family

services.

Under the federal mechanism, for example, by way of comparison to

what’s here in Bill 38, Indigenous communities are able to exercise

jurisdiction over child and family services by one of two processes:

adopting, firstly, as one alternative, a new law by providing notice to

the Minister of Indigenous Services Canada, ISC, and the province or

territory in which that Indigenous nation is located; or as an

alternative, by sending a request to the Minister of Indigenous Services

Canada and the government of each province or territory in which that

Indigenous community — it says community here, but nation — wishes to

exercise jurisdiction to enter into a tripartite coordination agreement

in relation to child and family services.

[3:00 p.m.]

Certainly, we’ve seen that through the course of time, there have

been a number of coordination agreements entered into. I’m looking for

that reference here…. I think the number that I remember is about 124 of

those coordination agreements. Here we go, right here.

In British Columbia, there is a history of delegation agreements

of a sort. The province of B.C. actually entered into its first

delegation agreement — that is, to delegate some responsibilities to

Indigenous nations for child protection and family support — in 1985.

Today there are actually 117 First Nations in B.C. that are represented

by 24 Indigenous child and family service agencies that administer all

or part of this Child, Family and Community Services Act and manage

their own child and family services.

It’s already some of these arrangements that are in place, that

we’ve seen over the course of time, that I would expect, of course….

This is something we’ll be talking to the minister about at committee

stage, which is a recognition of some of those existing arrangements and

how to ensure that with these amendments that are being proposed to both

the Adoption Act and the Child, Family and Community Service Act, they

are able to facilitate and support greater responsibility being taken

on.

As we look at what that looks like coming forward, we know,

through the technical briefing the member for West Vancouver–Capilano

and myself received from the ministry, that effectively, the amendments

that are being proposed under Bill 38 are to remove many of the

impediments under the provincial statutes, the two in question, to

Indigenous communities to exercise jurisdiction in an increased manner

over child and family services.

I would like to just turn back to the federal act for a moment,

because it does set an important reference that we will again talk about

at committee stage in this Bill 38, which is the paramountcy of laws.

The federal act, Bill C-92, does set paramountcy of Indigenous laws over

provincial statutes like the two statutes that are being amended in this

bill.

I understand that there has been a challenge by the Quebec

government to the Quebec Court of Appeal. By and large, the Quebec Court

of Appeal supported the constitutionality of Bill C-92, including the

general thrust of that act, which we’ve been talking about, which is the

importance of the inherent right of self-government for Indigenous

nations. But there are two specific provisions, one of which the Quebec

Court of Appeal ruled is not enforceable, the first one being the

paramountcy provision. I understand that appeal is being further heard

at the Supreme Court of Canada in December.

I’ve certainly had the opportunity to review the factum of the

province of British Columbia, of the Attorney General of B.C., the

current one, that’s been submitted in relation as an intervener in that

proceeding. Certainly, at committee stage, we will want to understand,

from the minister, the impact of that Supreme Court of Canada proceeding

on this bill — specifically, on

section 4.2 of Bill 38.

[3:05 p.m.]

I think as we look at this…. I mentioned earlier, talking about

the specific actions in the DRIPA action plan…. We will again walk

through with the minister, at committee stage, the progress of the

minister and her ministry that they have been making in order to meet

the specific action items that we’ve talked about — 4.16, the

co-development of “a B.C.-specific fiscal framework in partnership with

First Nations, Métis and Inuit to support moving forward with

jurisdiction over child and family services.”

On that particular item, I think it will be important to hear from

the minister about the status of the progress that’s being made on the

development of a fiscal framework. I’ve talked a number of times here in

my comments, in the time that I’ve had, about the importance of that

fiscal framework.

I do think that it will be important to understand how the federal

dollars will flow — that is the second set of $20 billion, assuming the

CHRT decision and settlement gets addressed — and how that will be

allocated over the next five years for long-term reform of First Nations

child and family services.

What will that look like in terms of creating resource back to the

province of B.C. to address that same reform of the system that we’re

talking about here under Bill 38? And really looking at: how are we

going to be working with First Nations to ensure that there are adequate

resources to support the level of training and education and

capacity-building that First Nations will need to have, as they go

forward, to support children on their territories and off their

territories as well, in other parts of this province?

As we’ve seen even with the TRC calls to action, there is a

recognition that regardless of where an Indigenous child resides, we

need to look at providing that level of support and care around that

child’s safety and welfare.

We’ve looked at, certainly, action 4.18 under the DRIPA action

plan, which is the co-development and implementing measures to support

improved education outcomes for current and former First Nations

children and youth in care. This particular item includes data

collection to inform policy planning and service delivery.

This item is one that I do think is going to be important as we

talk about children in care and, certainly, again, the greater

understanding that it’s not just about safety. It’s also about that

person and their family’s welfare, which is economic. It’s health. It is

educational. I think that there are many different measures that we need

to be working on to ensure that as we talk about a child’s safety, we’re

looking at all elements surrounding that.

Certainly under 4.17, of course, the whole thrust of Bill 38 is to

reduce the number of Indigenous children and youth in care through

increased prevention and family support services at all stages of

contact with the child welfare system. I would say that if….

I’ll just comment on it now, at the risk of not picking it up

later. I meant to say this at the outset, when I was talking about the

variation in approach, by this government, to consultation.

Here’s another example. I don’t have the bill number in my head,

but I certainly got the briefing yesterday along with the critic, my

good friend the member for Abbotsford West, the Attorney General critic,

on the Judicial Review Procedure Act. There is an amendment that the

current minister of justice, the Attorney General of this province,

introduced.

Why is that important? Well, I remember sitting in the former

Minister of Indigenous Relations and Reconciliation’s office when the

member for Skeena, the member for Nechako Lakes — the former colleague

that we have — myself and the critic for Indigenous Relations and

Reconciliation at the time, the member for Penticton, were receiving a

briefing from the ministry about DRIPA, the Declaration on the Rights of

Indigenous Peoples Act.

[3:10 p.m.]

We know that in

section 7 of that act, there are provisions for

decision-making agreements, of course. We’ve seen this more recently by

this government with the Tahltan First Nation in terms of the Eskay

Creek mine expansion process.

The amendment to the Judicial Review Procedure Act brings in —

when we contemplate the consent of the Indigenous governing body before

the exercise of a statutory power of decision, for example, under

section 7 of DRIPA — that that will be subject to the Judicial Review

Procedure Act. Why does that matter? Well, I know that this government

had said at the time that when we’re talking about the exercise jointly,

in terms of joint decision–making or with consent of an Indigenous

nation — when we’re sharing or providing that decision-making

opportunity, under these agreements — under

section 7 of DRIPA, it needs

to be done in an accountable manner.

Three years after DRIPA was approved unanimously in this House and

adopted, this government is bringing forward this level of

accountability measure. This is the reason why it’s important that First

Nations and Indigenous nations in our province understand. I’ve talked

to First Nation leaders since then, even in the last couple of months,

and they have all sorts of considerations around the usage of

section 7,

these decision-making agreements.

I hope, as we talk about that bill, that the right level of

consultation has been done with First Nations in our province, because

it matters to how a First Nation can exercise the ability to seek a

decision-making agreement with this government, to have consent before

there’s an exercise of a statutory power of decision.

Why does that matter in the context of this bill? It’s because, of

course, those same sections are referred to in this bill. There are

areas of jurisdiction where

section 6, which is a statutory power of

decision agreement, as well as

section 7 can be utilized in these

decision-making agreements, in terms of the jurisdiction over care for

children and youth and families by First Nations.

I think it’s going to be important to understand and contemplate

how

section 7 and

section 6 agreements will be utilized in this bill,

what the intention of this government is, what the ability and the

opportunity for First Nations and Indigenous nations that utilize those

provisions are, what types of arrangements are contemplated here, and

what type of expectations there are on these Indigenous nations and that

make them subject to judicial review.

What are the indicators of accountability this government is

expecting from First Nations? I think that level of clarity is very

important. This is the reason why we need to take the time to go through

this bill in a careful way. Just as First Nations have a lot of

expectation around this bill and what it means to get greater

responsibility, there are certainly some strings — some strings of

accountability.

We’re seeing this where we’re having multiple bills come through

this House and where I really wish I were with the member for Prince

George–Valemount to continue to look at components of Bill 36, as I

mentioned. But I can’t be in two places at once. This is the challenge

with what this government is doing. There are forcing legislation

through this House in a manner which fundamentally is changing the

relationship that we have with First Nations in this province. We need

to take the time. I’m very concerned that we don’t have that

time.

I’m also concerned that the level of consultation and

co-development is not there. I’m very hopeful, in my comments that I’ve

been making for the last hour and a half, that the minister will come

prepared to share with us the level of detail that the Minister of

Health did, if she needs an example. I’m not saying that it was fully

satisfactory. I’m just saying that it’s the best I’ve heard from this

government since DRIPA was adopted.

[3:15 p.m.]

I know, in talking to many members, and I’m not suggesting that

this minister will fall into that challenge, that as I talk to other

ministers in bill debates, as many of my colleagues have done in

estimates, there is a lack of understanding of what the DRIPA action

plan is intended to do and what UNDRIP is, as the member for Skeena has

challenged this government repeatedly on, in terms of what true

consultation means. We know that Bill 38 is intended to be administered

and interpreted in accordance with the Indigenous communities’ inherent

right of self-government with respect to child and family

services.

It is there to enable Indigenous governing bodies, as defined

under DRIPA…. There’s a discussion to be had there, as well, as to how

that definition is working for this government, how they are working

with Indigenous governing bodies, and what it means to this government

to enable those Indigenous governing bodies to assume jurisdiction over

child welfare services provided to an Indigenous child in accordance

with Indigenous laws, to strengthen collaboration and enable

consent-based deci­sion-making with Indigenous communities on

adoption placements for Indigenous children.

Those consent-based decision-making arrangements, even as they

relate to adoption under the Adoption Act, which is being amended under

Bill 38, again take me back to this question about judicial review: what

are the standards, the accountability and the expectations of this

government? The last thing we want, of course, is for First Nations to

be back in court or to be challenged for their consent-making

opportunities.

The government’s response may well be that that will be clearly

set out in those decision-making agreements, but I do think, as we were

looking at the framework that’s establishing this, that First Nations

and Indigenous nations in our province have a clear understanding as to

what that is.

Further, this bill is there to ensure that both treaty nations and

non-treaty nations have opportunities to exercise jurisdiction in these

areas of child welfare and protection. As we look at the bill and the

language in the various provisions of this bill, there’s a clear

distinction, of course, between treaty nations, modern treaty nations

and those that are non-treaty. I think in the non-treaty area, we do

have a whole mix of jurisdictional overlaps, including with the director

under the act and the new contemplation, of course, of the Indigenous

child welfare director.

I’ll just skip to that to say that this bill, certainly, is there

to establish a new Indigenous child welfare director position, as

contemplated here, to provide guidance and advice. I think that that is

another topic to talk about: the role, the power, the duties and the

responsibilities of that new Indigenous child welfare director, and the

fact that it’s just guidance and advice. Guidance and advice are

important, but in terms of true authority, alongside of the director,

that is to be considered and discussed.

As I mentioned earlier, this bill also enables information-sharing

between the province and Indigenous governing bodies, in an effort to

help Indigenous governing bodies plan for how they want to exercise

their jurisdiction. That is something, I think, that’s fundamentally

important to this bill and the nature of that information access. I

think that, as we get to committee stage, we’ll be looking at the

parameters around how information-sharing is to be monitored and what

oversight there would be.

Lastly, as I mentioned earlier, this bill will enable joint and

consent-based agreements to be made in accordance with DRIPA for

relevant powers under the Adoption Act and the Child, Family and

Community Service Act.

I just want to take the time that I have left here to highlight a

few additional items in this bill that we’ll be looking at, at committee

stage, with the member for West Vancouver–Capilano, as the critic,

certainly, I’m sure. The member for Skeena will have the opportunity to

fully dive into, as he usually does, certain provisions. I’m sure that

there are things that he would like to further in my comments at the

committee stage. I’m sure that the member for West Vancouver–Capilano

will welcome his involvement and participation, as we do with other

members in our team.

[3:20 p.m.]

I wanted to come back to the reference to best interests of the

child here. We know that, for example, in clause 3 of the bill, which

references the Adoption Act, and the similar clause that amends the

Child, Family and Community Service Act, that we look at…. Well, let me

just take it in the first case, I think, is probably more appropriate.

The best interests of the child. There are, certainly, under the

Adoption Act, currently, references to the best interests of the

child.

The number one relevant factor that must be considered in

determining a child’s best interests is the child’s safety, apart from

physical and emotional needs; importance of continuity; and child care

and so on. It does refer, currently, to cultural, racial, linguistic and

religious heritage, the child’s views and all of that. What this bill

does is add a new provision which sets out, if the child is an

Indigenous child, in addition to those relevant factors — some of which

I just mentioned — these other factors must be considered to determine

what’s in the child’s best interests.

That includes cultural continuity, the development of the child’s

Indigenous cultural identity, the preservation of the child’s

connections to the child’s Indigenous community, and being connected to

family and plans for a child’s care. Those elements are important,

certainly. I know that I would expect that we’ll hear from the minister,

certainly, in the area of consultations such as they’ve had, that this

section has had the benefit of Indigenous organizations — their leads’ —

input and others.

My question that we will want to talk about is: what is the order

of priority here in terms of looking at all these factors? Certainly,

for an Indigenous child, of course, the new factors will be of priority.

What I’m referring to is the child’s safety. I think ultimately, of

course, everyone — including leaders of Indigenous nations, parents,

grandparents, elders, aunties and uncles — will want to focus on a

child’s safety. When we look at the interplay, let’s say, of Indigenous

laws and provincial laws under this act — again, recognizing Jordan’s

principle — we don’t want anybody, any child, to be caught within a

jurisdictional conflict, including under this bill.

I think that those factors are going to be important to keep in

mind as we go through some examples of how they will work with each

other. I’m just looking off of two lists here. I think that the

paramountcy provisions, which are covered in clause…. If we jump

forward, for example, to the Child, Family and Community Service Act

amendments under clause 19, we have the whole

section that deals with

Indigenous laws — the self-government principles.

I think this will be an important, fundamental provision to walk

through in detail, because just as we’re saying to nations that they are

going to have greater ability under their self government rights to have

greater responsibility for the care of their children, again, we’ll be

mindful as to how this works with the current provisions of the act,

where there is a taking on of responsibility vis-à-vis the director and

what agreements need to be in place for that to occur.

I think it could be read a different way, but I do think we need

to ensure that the minister and this government have the same

understanding of the wording in this bill.

We certainly understand the intention, but I think the drafting

and the provisions, the way they’re set out, it’s going to need to be

quite clear that we’re not creating more potential conflict, which is

not the intention at all here. I think, certainly, as I mentioned

earlier,

section 4.2 in clause 19 will be looked at in terms of the

paramountcy provision, which clearly says that Indigenous child and

family services under Indigenous laws would prevail, to the extent there

is any conflict or inconsistency between this act and Indigenous

law.

[3:25 p.m.]

I think Indigenous law, of course, is something that we want to

have a good discussion of. It’s defined clearly. Well, at least it has a

definition in the bill. I think that we’ll want to walk through that,

including, because of that whole Judicial Review Procedure Act bill,

that lens. I think it’s going to be important, as I say, as we have the

opportunity in committee stage, to have a fuller understanding of how

that will work.

I think that in terms of looking at the timelines around this

bill, when we look at regulations, it will be important to consider what

that looks like. We know that in this bill, we have examples of language

relating to reasonable efforts. Reasonable efforts is always a

discussion to be had in terms of the intention behind those words and

qualifiers. We know that when we look at these agreements and

arrangements under clause 12 of the bill, we can consider that whole

interaction between decision-making and statutory power

agreements.

I’ll touch on, for the moment, the liability factors here.

Obviously, apart from judicial challenges we are hearing under that new

bill, we do have — under the Adoption Act, for example — in this bill,

immunity from legal proceedings. I think that as we talk about

jurisdiction and responsibility here, it will be very important for

Indigenous nations to understand the extent of their immunity from legal

proceedings under this bill.

I do know that we see some language, certainly, that’s shifting

here between what’s been set out, for example, in

section 79 of the

Adoption Act currently, as it stands, which talks about protection from

liability, “No person is personally liable for anything done or omitted

in good faith in the exercise or performance” of a duty conferred under

this act, to immunity from legal proceedings, including a carve-out

relating to the fact that this liability protection, which is similar to

what’s currently settled in the act, “does not absolve the government or

an Indigenous governing body from vicarious liability arising out of

anything done or omitted by a person referred to” in this

subsection.

That whole understanding of the exclusion for vicarious liability

will be something, again, very important for all of us to understand,

including First Nations and Indigenous nations as we look at this bill

coming forward.

As we talk about the director for Indigenous child welfare, this

new role, we’ll want to understand the duties and responsibilities and

why it is just guidance and advice, why there’s not a greater level of

authority for that director and the role that that director can play

vis-à-vis and compared with the provincial director of child welfare, as

well.

I also would expect that we will have a good discussion around

dispute resolution. There are provisions here in this bill that address

dispute resolution. I would say that on the surface, without a greater

understanding of what’s behind what’s contemplated by this provision and

how it might trigger other requirements, the language is fairly general

and broad and arguably not strong.

I think we’ll want to understand, when we’re talking about the

possibilities of dispute resolution, that we’re looking at something

that is going to have some rigour and is going to be meaningful to

Indigenous nations as they might have to encounter or address disputes

that they might need to address with that.

[3:30 p.m.]

We’ve talked generally in terms of the extent. This is something

that we’re going to need to look at, which is the whole framing of the

bill itself: provincial legislation versus Indigenous laws — the

overlap, how it becomes untangled, and how we provide space for

Indigenous nations to exercise their rights of self-government. The

importance, as I mentioned, of the information-sharing is so they can

make decisions to determine the right level of care and the approach to

care for an Indigenous child who may currently be under care in the

system.

We recognize, of course, that nations in our province have

different resources available currently and that the fiscal framework

will be important as to how we move all nations forward but that

currently every nation has a different level of resources available to

them. We want to, certainly, work with nations to create that sort of

economic opportunity and economic development to move forward so that we

can create more resources and that nations can be less dependent on the

state-run situation, as we talk about here, in child welfare as

well.

For those nations that are going to be looking at how they move

forward more into this new system, they’re going to want to address that

level of responsibility. Perhaps, in some cases, they may choose to put

more resources into prevention, which is the early identification of

children in a situation that might need some intervention or some

further understanding.

For those children that are already in the system, under care,

whether it’s in a foster situation or in an institutional context, the

level of information-sharing with that nation will enable them to at

least monitor, follow up and, perhaps, provide additional support to

support that child in that environment. Whether it’s cultural, whether

it’s spiritual, whether it’s other points of contact, it will be

important. As we look at the resorting of resources and jurisdiction,

these things go hand in hand.

I’m just giving a brief example of how that might work for some

nations. I do expect that, hopefully, as we go into the next week, as I

mentioned earlier, members will get that additional feedback from their

local First Nations about how this bill will work for them as they look

at taking on more responsibility.

The provisions of this act, as well, are recognizing that when we

look at what constitutes reasonable steps to confirm whether a child is

an Indigenous child and to obtain information about and confirm whether

there is an Indigenous authority or applicable Indigenous law, these

reasonable steps need to be taken. Those confirmations need to be

received. Again, we’ll need to understand the process for that and the

expectation of this government to meet those requirements.

We’ve talked about the notion that the director, under these acts,

is certainly subject to federal laws and the Charter. There’s a question

about the interaction of Indigenous laws, UNDRIP, DRIPA,

section 35 of

the Constitution Act — those requirements and those legislative

frameworks, vis-à-vis the director — as to how the director is to

operate. I do think that there are questions around the bill, from that

perspective, as we look at how that comes forward.

As we look at examples, there are provisions here that are

proposed to be amended — for example, clause 21. This is something that

the Minister of Social Development and Poverty Reduction did hit on in a

different way. When we look at

section 13 of the Child, Family and

Community Service Act, as I will right now, briefly, we’ve had,

certainly, a provision that a child needs protection in certain

instances.

[3:35 p.m.]

There is a proposed addition to this that would change that. When

protection is needed, certainly, is where a child has been or is likely

to be physically harmed, sexually abused, physically harmed because of

neglect, emotionally harmed. There are, certainly, all of those elements

to ensure safety of the child, including abandonment by parents, a child

being absent — circumstances which might endanger the child’s safety or

well-being.

These provisions in

section 21 would add some clarifications to

this — the arms in which child protection would occur and circumstances

— and makes it clear that the child does not need protection solely on

the basis of social-economic conditions, including poverty, the lack of

adequate housing or infrastructure, the state of health of a parent of

the child. Obviously, as I addressed and others have addressed in the

second reading on this bill, we do understand the need to address

poverty, housing, lack of infrastructure, health — that this is part of

the picture. But a child’s safety also is connected to those

items.

I think we’ll want to understand, from the government and the

minister…. The government talks all the time about their poverty

reduction plan and what that means. Here we have a situation where

they’re actually removing poverty as an item from the act. I don’t know

that that’s their intention in the message that they’re saying to First

Nations — that poverty is not a priority for this government.

I do think we’ll want to understand the nature of that specific

carve-out or exclusion — recognizing, as we all do, that First Nations

and Indigenous nations have many challenges, including what’s referred

to in this new section. I think that messaging to nations is important

to clarify the government’s intention here.

We talked a bit about dispute resolution in terms of what that is

going to look like. If we look at clause 24, we have wording here that,

as I mentioned, is looking at disputes under Indigenous law. As to how

it applies when we’re talking about conflict of laws, we can have, of

course, parents who belong to different nations. So whose Indigenous law

might apply?

That is not necessarily embedded in this provision, but I do think

these are examples of how we need clarity when we talk about Indigenous

law and how that will operate. That’s going to be important, again, for

Indigenous nations to understand, at committee stage.

When we look at the questions around recognition in clause 28,

there’s recognition here of the Provincial Court and the interaction of

recognition by Indigenous law. The jurisdiction of the Provincial Court

will be important to understand here, in how that works into this bill

as well. As we look at Indigenous law itself, I think it’ll be important

for the minister to share with us, at committee stage, her understanding

of Indigenous law, how it is to be framed and understood. Through case

law, certainly, it is well recognized. I think we’ll want to know, of

course, in the context of this bill, how that will operate.

[3:40 p.m.]

Again, whether it’s with disputes between nations about children

in a marriage, in a family situation, in an extended family situation or

through adoption — where an aunt, an uncle or a grandparent is taking

care of a child or taking responsibility for the care of an Indigenous

child — we’ll want to look at that interaction.

I will say that, hopefully, in the time that I have spent on this

bill, speaking to it here today…. I thank the opportunity to be able to

lay out my perspective on this bill. I think that it is certainly one

that is fundamentally important to Indigenous nations and peoples in

this province for so many reasons, which we’ve talked about through the

course of this bill debate to date, including the historical reasons and

the current reasons.

I do know that we need to get this bill right and that we cannot

further complicate the situation. Again, that is not the intention of

this government. I’m pretty sure of that. But I do think that when you

don’t take the time, when nations feel like they’re being rushed into

something…. I do feel, in my discussions with First Nation leaders, that

there are elements of that. There are elements….

We know that government is on a timetable. They have a new

incoming Premier. That special ceremony that we were all part of last

Wednesday was important, and those voices and the respect that we had

for those leaders we all share.

Again, as I said at the beginning of my comments, one of those

leaders said that she did not feel her nation was properly consulted and

that this has been rushed. This is a nation that this government put and

identified to be part of that ceremony in the Hall of Honour. I think

that raises lots of concerns here as to how other nations might feel

about this bill. I think it’s going to be very important, at committee

stage and the rest of the speakers to this bill….

I know members of the Third Party have also heard from various

First Nations about their concerns about this bill. They’ll have that

opportunity to share in detail, on the record, what those concerns

are.

With the number of nations in this province, no one person can

have the full opportunity to have that level of conversation and

discussion. I certainly haven’t yet. But I do know, as we look at the

importance of reconciliation in this province, that it is a

relationship. When you break that trust and you break that relationship,

as this government has done with the 2030 bid decision, that does take

us steps back.

When you look at, through that lens, this bill…. You look at the

complexity that’s coming at First Nations and Indigenous nations in this

province, what they have to understand and appreciate in terms of the

mechanisms that this government is putting in front of them. It’s an

important step, but it’s a step that we need to take time to go through,

to understand, to get the clarity so that we can get closer to meeting

the expectations that have been raised under DRIPA.

Operating on a lack of clarity is not helpful. That’s the reason

why, when we commonly refer to UNDRIP…. I hear this in members’

speeches. What does it mean? What does it mean to First Nations? How are

we actually aligning the laws of our province, by all measures

necessary, as required under the Declaration on the Rights of Indigenous

Peoples Act? How is this government actually doing that?

I heard some of that in Bill 36, the health professions act. I

hope to hear at least that much on this bill. I hope to hear from the

minister at committee stage — her opportunity to take fulsome answers.

I’ve taken the time. I’ve been provided the time, by our opposition

caucus, to lay out the list of concerns that I have with this bill, and

I would expect that the minister will come fully armed and equipped to

address these concerns, along with the critic, my colleague the member

for West Vancouver–Capilano.

[3:45 p.m.]

I do think, with the time that we have, which is getting quite

limited in this House, that it’s a real challenge to ourselves, as MLAs,

to do our job, to ensure that this government…. And have this point of

opportunity so that we can review these complex pieces of legislation,

like Bill 38, in detail.

I hope that we will have that opportunity as we go forward — that

we will hear from nations that, hopefully, we reach out to or that,

hopefully, may become aware more of this bill in front of this

Legislative Assembly — and that we will have and see that written

communication or other communication so that we can continue to question

the government on elements of this bill coming forward.

K. Paddon: That was an impressive two hours. Thank you. I’m learning how to

fill two hours, how to time it, how to pace it. I appreciate that. Also,

two hours gives me a lot to respond to. So I also appreciate

that.

I am very happy to rise today in support of this bill. A lot of my

remarks are very personal, very personal to my community, to the

community that I get to serve. A lot of the stories are from my

community as well.

I’m going to spend some time…. I mean, we’ve canvassed how

important this bill is for the children and families of the First

Nations that we all, ultimately, serve on the territories of. I do want

to touch on that.

A place where I’m going to start, though, is actually in response

to the critic. Some of the comments I found to be interesting and don’t

want to leave them unanswered. So we’ll clear them before I focus on

where I believe the energy should be focused, which is on the children,

on the families, on the First Nations who contributed to this and who

poured so much for so many years into getting us not only here but

further and to where we’ll be years from now, which is something I’m

looking forward to seeing.

I do understand, from some thrivers and survivors, about some

stories that describe the impact of some of the work being done here and

describe the importance of the work being done here because of the

impact of history. On September 30, I was really happy to attend an

event hosted by Stó:lō leadership, as well as residential school

thrivers, at the Coqualeetza Residential School memorial house post

across the street from Chilliwack-Kent, in Chilliwack. It’s the same.

The lines are very close.

A lot of what I heard there, from the thrivers and survivors — and

different people identified themselves in different ways — was a lot of

information, through storytelling, that gave me a really great

perspective. In looking at this legislation, in