Putting Our Minds Together: Aspirations and Implementation of Bill C92, An Act Respecting First Nations, Inuit and Métis Children, Youth and Families in Canada

Abstract

In 2020, Bill C92, or an Act Respecting First Nations, Inuit and Metis Children, Youth and Families, came into force in Canada. The Act historically recognized and affirmed Indigenous jurisdiction over child and family services and established national minimal standards for service delivery. In 2024, the Supreme Court of Canada upheld the constitutionality of the Act in an appeal from a Quebec Court of Appeal reference case. The Court stressed all parts of the Act must be viewed as “integrated parts of a unified whole” and required the braiding together of Indigenous laws, state laws and international laws into a “single strong rope.” The Act’s aspirations remain in tension with ongoing challenges in implementation. This article outlines the main provisions of the Act. It then examines the law-making efforts and accomplishments of Indigenous governments exercising jurisdiction using the Act, along with some of the hopes and obstacles encountered through this work. Next, it considers some of the emerging jurisprudence interpreting the Act, and some of the implications this case law has on whether the stated purposes of the Act are being achieved. It concludes by highlighting the ongoing uncertainty and hopes for realizing the full potential and aspirations of the Act.

1. Introduction

Let us put our minds together and see what life we can make for our children.

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In July of 2021, there was a historic and momentous signing ceremony in Cowessess First Nation, located in the province of Saskatchewan. The Cowessess Chief, the Premier of Saskatchewan, and the Prime Minister of Canada were all on hand to sign the very first coordination agreement under an Act respecting First Nations, Inuit and Métis children, youth and families, known as Bill C92.2 The coordination agreement was the final step in the legal recognition of the Cowessess First Nation Miyo Pimatisiwin Act3 having the force of federal law. For the first time in Canadian history, a First Nation’s jurisdiction over Child and Family Services was recognized, and resourced, by both levels of colonial governments. The signing occurred mere steps away from 751 unmarked graves near the old residential school, and at a time in history when a staggering 86% of Saskatchewan children in government care were Indigenous.4

Significant in its own right, the juxtaposition of the signing ceremonies for the Cowessess coordination agreement, the grief evoked by the unmarked graves, and the statistics of over-representation capture some of the complexity involved in the long overdue recognition and implementation of Indigenous child welfare jurisdiction in Canada today.

The Act respecting First Nations, Inuit and Métis children, youth and families [Bill C92]5 came into force 1 January 2020, and is the first federal piece of legislation directly related to Indigenous child and family services [CFS]. Its stated goals are to affirm and recognize Indigenous Nations’ inherent jurisdiction over Indigenous children and families as an Aboriginal (constitutional) right,6 set national standards for CFS delivery related to Indigenous children and families,7 and contribute to the implementation of the United Nation’s Declaration of the Rights of Indigenous Peoples [UNDRIP].8 The Act consists of, and is structured around two major parts. The first part is the National Standards, now in force, which sets minimum standards for all decision making and service delivery for Indigenous children related to CFS.9 The second part both recognizes inherent jurisdiction and sets out a formal process whereby Indigenous Nations can have their own laws recognized and enforced as federal law anywhere in Canada.10

A recent Supreme Court of Canada reference case which upheld the constitutionality of Bill C92, confirmed that the inherent jurisdiction and national standards sections of the Act should be seen as “integrated parts of a unified whole.”11 The Court stressed that the Act, as a whole, had a clear central purpose:

[The] essential matter addressed by the Act involves protecting the well-being of Indigenous children, youth and families by promoting the delivery of culturally appropriate child and family services and, in doing so, advancing the process of reconciliation with Indigenous peoples.

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Bill C92’s aspirations are laudable and long overdue. In this article, I explain the Act’s clear legal imperative for more respectful relationships between Indigenous and colonial governments and better outcomes for Indigenous children and families. However, there are challenges to implementing self-determination despite the Act being federal law and explicitly binding in all provinces.13 I will first outline the imperatives within the Act itself, and then turn to what is emerging in the nascent implementation and application. I will discuss some of the implementation challenges, including the continuing context of colonialism, funding issues, and resistance to the Act. At the same time, I will demonstrate these challenges are not insurmountable, as evidenced by the innovative decisions and positive progress occurring across Canada through provincial law reform and court decisions. As the Supreme Court wisely stated,

Even though the Act is expected to accelerate certain aspects of the process of reconciliation, it is still important to realize that reconciliation is a long-term project. It will not be accomplished in a single sacred moment, but rather through a continuous transformation of relationships and a braiding together of distinct legal traditions and the sources of power that exist.

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What remains to be seen is how this transformation of relationships and the braiding together of legal traditions and sources of power unfolds through the coming years.

2. Bill C92 National Minimum Standards: Clear Legal Imperatives for Change

Bill C92 sets out a roadmap for the long-term project of the transformation of relationships and the braiding together of legal traditions, toward the goal of Indigenous children and families’ wellbeing. Importantly, the Act applies to all Indigenous children, First Nation, with or without Indian status, Inuit and Métis, and to both on-reserve and off-reserve children.15 The roadmap is sparsely sketched, and includes no regulations, to date, no funding formula, and no clear remedies for noncompliance. There is also some inherent challenges to its application. Indigenous child welfare is a legal subject area that has a “double aspect”—that is, both the federal and provincial governments have some legislative authority. The Act is enacted under the federal head of power, s. 91(24), “Indians and Lands reserved for Indians”, which the Supreme Court defined as “Indigenous peoples, as peoples.”16 It impacts and interacts with provincial authority over CFS.17 This means that where there is a conflict or contradiction, the federal law prevails, but where both provincial and federal law can be complied with, both apply. This jurisdictional overlap can be confusing and leaves a great deal of room for interpretation. The uncertainty about Bill C92 has resulted in uneven and disparate application of the Act’s provisions. Nonetheless, the legal obligations in the Act are clear, and clearly legal obligations.

a.

Guiding Principles

The first part of the National Standards section sets out principles for interpreting and applying decisions under it. The paramount consideration in the National Standards section of the Act remains the best interests of the child.18 However, the primary consideration in the ‘best interests of the Indigenous child analysis’ is now children’s physical, psychological and emotional safety, security and wellbeing, and also their need for ongoing relationships with their family and community, as well as the preservation of connections to their culture.19 In other words, unlike many statutes that set out a list of best interest factors without prioritizing any particular one, Parliament has now “super-weighted” Indigenous children’s relational wellbeing.

The factors to be considered under the best interests of the Indigenous child20 include the importance of maintaining an Indigenous child’s relationships to their parents, family members, community, language, culture and territory.21 Additional factors include consideration of the “nature and strength” of an Indigenous child’s relationships with family members beyond just the Euro-centric nuclear family22 and “any plans for the child’s care including care in accordance with the customs and traditions of the Indigenous group.”23 Best interests are required to be interpreted, to the extent possible, in accordance with the Indigenous laws of the child’s own people.24

Bill C-92 also requires cases to be interpreted in light of the principles of substantive equality25 and cultural continuity,26 recognizing that cultural continuity is essential to Indigenous children, families and communities’ wellbeing.27 It stresses that CFS delivery must not contribute to assimilation or cultural destruction.28 Bill C-92 also stresses that the effect of CFS delivery must be evaluated, not just the intent.29 This logically requires ongoing evaluation.

This new “best interests” analysis is often intuitive or affirming for Indigenous leaders, advocates, CFS workers, and family members, but more challenging for non-Indigenous CFS workers to understand. There is increasing research available that addresses why super weighting relational wellbeing is in Indigenous children’s best interests.30

b.

National Minimum Standards

All CFS providers must comply with legal obligations within the National Standards.31 The first group of these minimum standards focus on prevention over apprehension whenever possible. These include requirements for all CFS providers to prioritize prevention over other services,32 provide preventative prenatal care,33 not apprehend any Indigenous child on the basis of socio-economic conditions alone,34 and demonstrate “reasonable efforts” to maintain placement with parents or family members.35

The second group of the minimum standards relates to circumstances where Indigenous children may be apprehended and placed in state care. It requires notice be given to parents, care providers and Indigenous governing bodies “before any significant measure” is taken regarding an Indigenous child36 and gives party standing to parents and care providers as well as representation rights to Indigenous governing bodies in any court proceedings.37 It sets out placement priorities, which start with parents, then family members, members of the same community, any other Indigenous person, and then, if none of these are possible, any other adult.38 Placement with or near siblings (with a more expansive definition of this term than just biological children of the same parents) or according to customary care plans within the child’s community must be considered.39

Finally, the Act sets out minimum standards for when an Indigenous child is placed out-of-family care, if there is no other choice, despite following the placement priorities. Bill C-92 stresses the importance of promoting the child’s attachments and emotional ties with family members40 and makes it mandatory to re-assess the possibility of placement with family on an ongoing basis.41

c.

Bill C92 Jurisdiction Provisions

Bill C-92 clearly affirms and recognizes Indigenous jurisdiction over CFS.42 As mentioned above, the Supreme Court stressed that all parts of the Act, including national standards, the affirmation of self-government over CFS, and concrete implementation measures, are “integrated parts of a unified whole.”43 This is important because it means that the recognition of jurisdiction is inclusive of how the national minimum standards and the more explicit jurisdiction and implementation sections should be interpreted and applied. Regardless of whether an Indigenous Governing Body [IGB] decides to go through the process set out in the Act to enact their own CFS legislation, administer and enforce their own laws, and/or establish their own dispute resolution processes, their jurisdiction over their own children and families, exists, and is recognized as existing, in Bill C-92. In other words, respecting Indigenous jurisdiction can and should be occurring right now through a purposive application of Bill C-92’s national minimum standards, as well as applicable Indigenous laws and dispute resolution processes.

Bill C-92 also sets out a process through which an IGB, as one possible way of exercising their existing, inherent jurisdiction, can create formal written CFS laws that will be recognized as having the force of federal law. As mentioned above, this may include drafting legislation, administering services, and developing dispute resolution mechanisms.44 However, anecdotally, many IGBs report both federal and provincial governments characterizing this as an “all or nothing” path, where they are pressured to pursue legislation, administration of services and dispute resolution processes, or it is insinuated they are not ready to exercise jurisdiction. There is nothing in the Act that supports this characterization of the exercise of jurisdiction. This is also consistent with the Supreme Court’s jurisprudence, which distinguishes between a government’s power to legislate versus a duty to do so.45 It is clear, by the plain wording of the “may”, IGBs can decide what aspects they wish to pursue at a certain time.

The required process toward the certainty of having one’s CFS laws having the force of federal laws in the Act includes the IGB giving notice of intent,46 agreeing to having the notice of intent and the legislation published on a public federal website,47 and making reasonable attempts to negotiate a coordination agreement with the federal and applicable provincial or territorial governments.48 If reasonable efforts to negotiate a coordination agreement have been made for a year, but have failed to result in a coordination agreement, the Indigenous CFS law will still have the force of federal law and prevail over provincial CFS statutes.49

It costs money to develop and implement laws and legal processes. In addition, if an IGB wants their law or legal procedures recognized as having the force of federal law under the Act, they must give notice and make reasonable efforts to negotiate a coordination agreement with the federal and relevant provincial and territorial governments, which also takes time and money. This is the only path toward funding in the Act.50

The issue many communities are facing at this point in time is that the federal government’s written requirements for capacity funding and publicly available information about the Act lean toward the ‘all or nothing’ view. This has no basis in the law itself. For example, a requirement for capacity development funding is that the Indigenous Governing Body be ready to take over delivery of services within five years.51 Anecdotally, we hear many communities report being told they must create a delegated agency under the province prior to law-making under Bill C-92. This is not a legal requirement anywhere in Bill C92.

Equitable and reliable funding for Indigenous CFS laws and service administration remains a huge concern. Dr. Cindy Blackstock is executive director of the First Nations Child and Family Caring Society and a Gitxsan professor in social work and advocate. She is still in court with the federal government regarding discriminatory funding of CFS on-reserve and Jordan’s Principle, after 17 years, most recently regarding their judicial review of the Canadian Human Rights Tribunal orders.52 Dr. Blackstock is deeply concerned that there are no firm commitments or transparent mechanisms for funding the implementation of Indigenous CFS laws.53 The fear and risk is that, without redistributing equitable and adequate resources for CFS as an essential service, this becomes just another route toward devolving responsibilities. This lets the optics of the inevitable failures do the work they always do to reinforce racist stereotypes about Indigenous governments and maintain the status quo as the best of several bad options.54

3. Implementation and Application of Bill C92 in Legislation and Courts

The Supreme Court stated that the Act’s affirmation of the right to self-government relating to CFS can be viewed as having a practical effect in its educational function. This “may in part be viewed as a step toward changing or adjusting the culture underlying the actions of the federal and provincial governments.” The federal government cannot direct or command provincial governments beyond its powers. Still, the Court stated that this “pedagogical function may nevertheless, in time, help to inculcate new attitudes or approaches that will further promote a culture of respect for and reconciliation with Indigenous peoples in Canada.”55

A.

Legislative Implementation:

Thus far, there is mixed uptake across Canadian provincial and territorial governments as well as mixed decisions relating to the application of the Act in lower courts. At the time of writing, some provinces and territories have amended their provincial CFS legislation to align more closely with Bill C92’s national minimum standards.56 Notably, two provinces, British Columbia and Manitoba, have amended their legislation to explicitly recognize Indigenous jurisdiction and laws, and set out processes for relationships between provincial and Indigenous laws.57

Some IGBs are using Bill C92’s jurisdiction provisions to exercise their inherent jurisdiction over CFS. As of 24 January 2025, the Government of Canada reports that 11 coordination agreements have been signed and 13 Indigenous CFS laws have come into force.58 This is a relatively small percentage in comparison to all the First Nations, Inuit and Métis governments in Canada.59 There are also 69 notices of intent to exercise jurisdiction via the framework of the Act.60 Anecdotally, many more Indigenous Nations are in the process of considering how to exercise their jurisdiction over CFS in relation to the Act. The Indigenous CFS laws currently in force, which must be publicly available to have the force of federal law, demonstrate the diversity of Indigenous Nations, the enduring principles relating to the centrality of Indigenous children’s wellbeing, and the pragmatic and innovative ways Nations protect children and families. The preambles and guiding principles are powerful and beautiful in many of them. Indigenous language is used to express key principles and fundamental rights of children. For example, Louis Bull Tribe, a Cree First Nation in Alberta, includes in their preamble the simple but profound statement: “Awasisahk [children] are gifts from our Creator.”61 Cowichan Tribes, a Coast Salish Nation on Vancouver Island in the province of British Columbia, has a Guiding Principles section that states the following:

This Law must be interpreted and administered in accordance with our Snuw’uy’ulh, reflected in the following Guiding Principles, in order to secure the physical, emotional and psychological safety, security and well-being of a Smun’eem [children].

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The principles of Snuw’uy’ulh are included and defined, including Shtun’ni’iw’s [where you originate from; ‘uqwitul [ensuring our familial relationships are strong and respectful]; Mukw’ tu shhw’a’luqw’a’ ‘o’ tth’ele’s tu shhwuli [Family is the heart of life] and Tl’i’ tul tst [love], along with others.63 There are no provincial statutes that include love as a guiding principle, or start by declaring children are a gift.

Most Indigenous CFS laws build on the best interests factors in Bill C-92, or set out their own best interests factors for their own children and families.64 The definition of “family” is often broadened to reflect Indigenous concepts of family, which are generally broader than Euro-Canadian conceptions. For example, both Peguis First Nation, an Anishinabek Nation in Manitoba, and Cowichan Tribes define “family” as encompassing people far beyond just the ‘nuclear family’ of biological parents and children.65 Children’s views and voices, and children and families’ agency are often centered to a greater degree than they are in state legislation. For example, Louis Bull Tribe’s law has a section that requires decision making to include children’s participation, with detailed ways how, and a section that allows for voluntary support services and agreements.66

While some enacted Indigenous CFS laws have distinct, culturally rooted provisions, some closely mirror or incorporate wording from the Bill C92 national minimum standards and provincial CFS laws. Coordination agreements also reflect the reality that there have likely been concessions made, presumably to reach coordination agreements with the much-needed funding. For example, the Cowessess First Nation Coordination Agreement contains a narrowing of the National Standards and limits to Cowessess jurisdiction, setting out differences between on-reserve children (service delivery) and off-reserve children (consultation). This may represent compromises to reach an agreement.67 The province still holds ultimate authority over Cowessess First Nation children in care off reserve though they state they will consult with the Nation.68

Cowessess First Nation initially signed a two-year coordination agreement with Canada and the province of Saskatchewan, with $38.7 million in federal funding. However, they are now back in negotiations to renew the coordination agreement.69 This situation highlights the ongoing power imbalances and long-term uncertainty relating to funding that all IGBs continue to face.

B.

Court Application of Bill C92:

At the time of writing, there have been close to 200 court cases relating to Bill C92 since it came into force in January, 2020. The vast majority of cases have been about the interpretation of the national standards. Courts have interpreted the Act in different ways, and it is not possible to review all cases or even themes in the space of this chapter. While it is beyond the scope of this article, some of the differences in the jurisprudence could relate to differences between provincial statutes, and even interpretative cultures between courts.70 There have been some recurring issues in the application of the national standards. One such issue is what is required to meet the notice and representation provisions relating to Indigenous Governing Bodies.71 This may indicate a need to address Justice Ardith Walkem (Walkem 2015)’s caution about a demonstrated bias against Indigenous communities in child welfare case law, where starting assumptions tend to be that their interests are inherently in conflict with the best interests of the child, or their involvement is merely political. As Walkem notes, in closely knit densely interrelated communities, there is often a deep ethic (and duty) of care toward children by Indigenous political leaders that non-Indigenous political leaders are not likely to feel in the same way. Non-Indigenous decision-makers may need education to ensure they are not projecting inaccurate assumptions onto leaders acting in a profoundly different political and cultural context.72

Another common issue is whether the Act should apply to Private Guardianship and Adoption applications, which are typically considered ‘private’ rather than ‘public’ family law matters.73 The latter issue is particularly pressing because judges across Canada anecdotally report a flood of private guardianship and adoption applications since the coming into force of Bill C92, presumably from caregivers who do not want the Act to apply to them and the Indigenous children in their care.74 These issues, which chafe at the status quo, demonstrate the ongoing resistance from individuals against Indigenous self-government when it impacts non-Indigenous biases, beliefs and interests. It is clear from the case law there will continue to be ongoing pushback against deference to IGBs’ jurisdiction over Indigenous children, including the core issues of who should get to determine Indigenous children’s best interests and when.

Some courts are insisting on a broad and purposive interpretation of Bill C92 and are affirming Indigenous jurisdiction.75 In a powerfully written decision in Quebec, the Court found that the Youth Protection Act unjustifiably infringes on the Atikamekw of Opitciwan Nation’s inherent jurisdiction over CFS. The Court thus ruled that the Atikamekw legislation76 takes precedence in the case of an Atikamekw child.77 The Manitoba Court of Appeal recently granted Peguis First Nation leave to intervene in a private guardianship case, in part because “Peguis FN has a clear perspective as to its exercise of jurisdiction relating to child and family services by enacting the Peguis CFS Act.”78 These kinds of decisions can have a cascading impact on respectful intergovernmental relations that promote reconciliation and self-government over CFS in Canada.

Bill C92 is being implemented, and there are indications of positive change, in legislative action by Indigenous and provincial governments, and in some court cases applying the Act. Indigenous jurisdiction over CFS is being exercised, and upheld across Canada, albeit in a piecemeal fashion. These positive movements are taking place in the continued colonial context of governmental fiscal suasion and under-funding, as well as the weight of non-Indigenous bias, interests and the status quo. Even with the powerful legal tool of Bill C92, reconciliation indeed remains a long-term project.

4. Conclusions

For thousands of years prior to the arrival of European settlers and the emergence of the Canadian state, Indigenous peoples cared for their children pursuant to their own laws, principles, and practices. While there is a diverse range of Indigenous Peoples in Canada, there is a common thread of a deeply held belief in children being seen as sacred, valuable, and the responsibility of all. A Nakota Sioux teaching shared by elder Francis Alexis stands as an exemplar of the value and centrality of children’s wellbeing within Indigenous societies:

Children were gifts from the Creator. They gave meaning to life, these children, teaching us about unconditional love, bringing joy and laughter… Together a man and woman were responsible for the well-being of the child mentally, emotionally, physically and spiritually. Relatives helped in bringing up these children. Grandparents, uncles, aunts and the whole community helped each other to enhance the lives of children. These were our ways, what happened to our people.

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Cree children have been described as “a sacred bundle, a gift from the spiritual realm.” (Dorion 2010) Cree Elders teach that children are “our greatest teachers”,80 and that they are to be appreciated every day and treated in a loving and gentle way as they are only “loaned” to us from the Creator.81 Similarly, there is an Anishinabek legal principle that “children are gifts from Creator and are the closest to the spirit world” and that “each child’s spirit has an important purpose when they are born to this world.” (Anishinabek Nation Legal Department 2018)

The colonial imposition has forcibly disrupted Indigenous legal processes and family structures. In the Bill C92 Reference Case, the Supreme Court of Canada outlined this relatively shorter and more recent history and context:

For most of Canada’s history, lawmakers have wrongly employed a policy of assimilation… This history, which includes the residential schools policy, the “Sixties Scoop” and the harm and intergenerational trauma that resulted therefrom, is detailed in several reports published in recent decades…. The effects of these government policies are still being felt today. “In tandem with the residential school system, the child welfare system … became a site of assimilation and colonization by forcibly removing children from their homes and placing them with non-Indigenous families” (Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, vol. 1a, at p. 282). The statistics on the overrepresentation of Indigenous children in child welfare systems are quite simply staggering. According to 2016 census data, about 7.7 percent of children under the age of 15 in Canada are Indigenous, but they represent 52.2 percent of children in foster care in private homes.

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The Supreme Court went on to stress that Canada has “abandoned its policy of assimilation in favour of a policy of reconciliation,” through, among other initiatives, the establishment of the Truth and Reconciliation Commission and its international commitments to, and the adoption into Canadian law of, the United Declaration of the Rights of Indigenous Peoples.83 The Supreme Court encouraged all governments to use their laws and powers to center Indigenous children’s wellbeing.

Bill C92’s acknowledgement and recognition of Indigenous jurisdiction over Indigenous children in CFS is long overdue and a historic and positive step forward by Canadian lawmakers. The explicit affirmation of law-making jurisdiction provisions offer hope. Bill C92 sets out an array of options for Indigenous governments to use to exercise their inherent jurisdiction, including through the National Standards. It empowers all CFS workers and decision-makers to act on the acknowledgement of this jurisdiction immediately, through the National Standards. However, there are still non-legal obstructionist barriers remaining and being freshly put in place by federal and provincial governments that may force compromises to jurisdictional powers, and stymie their promise and effectiveness. There is also pushback from non-Indigenous individuals and governments, protecting their own interests, as evident in the caselaw thus far. The courts’ interpretation and application of the National Standards, Indigenous jurisdiction, and, potentially in time, some Indigenous CFS statutes, will create precedent, so the outcome of individual cases can affect all Indigenous children and communities.

In sum, Bill C92 is a powerful legal tool. And it is not a panacea. So much harm has been caused to generations of Indigenous children, families, and communities by the denial of jurisdiction. Legislative recognition of that jurisdiction is a hopeful legal step to ensure the wellbeing of Indigenous children today and achieve the long-term goal of reconciliation for generations to come. The legal framework to transform relationships and braid together legal traditions is in place, and the Supreme Court has upheld it in its entirety. How this framework will be interpreted, applied and operationalized in the future remains an open question. We just do not have a lengthy precedent yet, in Canada, or elsewhere, of state governments deeply transforming their relationships with Indigenous governments into respectful partnerships in order to truly center Indigenous children’s wellbeing. The life we make for all our children will depend, as always, on how and whether we are able to bring our minds together for them.