Thank you very much and good morning to everyone. It's an honour to be here. It's a great pleasure to join the national chief in addressing you on this significant bill and to recognize the importance of the work that members are doing. I have had the opportunity already to present to the standing committee at the Senate, so I appreciate that both Houses are working with great attention to these significant national issues, which deserve careful and thorough review and I feel have had enormous attention over a long period of time.
I wanted to also note that I have had the great privilege to be a special adviser to a number of chiefs, including the chiefs of a legislative working group of the Assembly of First Nations who have been meeting since the national emergency meeting on child welfare, which was held in January 2018. We have been working in a unity-seeking methodology, which is chiefs from all over Canada, their advisers and their child welfare experts have convened approximately 12 times with day-long meetings to evaluate what the positions are that first nations would like to bring to Canada for inclusion in a bill.
That process has been a very positive process. I've certainly enjoyed it a great deal, but when I say unity-seeking process, I appreciate that you can't always achieve complete consensus. However, it was our objective, guided by the spirit and approach of the Assembly of First Nations, to be unity-seeking, work together and build together. That was a substantial period of work and that work was shared with the Government of Canada.
We've had several meetings with the Government of Canada and I'd like to, as well, acknowledge the significant work by public servants on this matter and on this bill. There are many, and I don't want to name them all, but there are at least three who I think deserve particular attention because they've worked tirelessly on this: the deputy minister for indigenous services, Jean-François Tremblay; the assistant deputy minister who has this file and education; Joanne Wilkinson; and the director for this area, Isa Gros-Louis. Those are just three public servants who have attended to the meetings with the chiefs and listened to us and heard our positions. As well, I've had a chance to work with them as an independent expert. I just wanted to give a shout-out to the incredible, hard-working professional effort that public servants in the Government of Canada have brought to this file and their focus and determination, especially since January 2018 after the national emergency meeting, to get this work done.
I wanted to start by addressing some of the constitutional issues that have come before this committee. I have observed the proceedings and read the Hansard and I am familiar with the fact that Professor Dwight Newman appeared and raised some constitutional questions with respect to the bill. I'm also aware of the fact that probably our most eminent constitutional professor in Canada, Peter Hogg, appeared just earlier this week to address the constitutional issues regarding the bill.
I wanted to clarify that from my own position as a constitutional expert, a professor of law, a former judge, a practising lawyer who's appeared before the Supreme Court of Canada several times and as someone who now is practising again dealing with constitutional issues, I feel that it is beyond question that the bill before you is constitutionally valid.
I think it's important to note that the provincial paradigm that's in place in Canada for child welfare is not really based on a correct understanding of the division of powers as it affects indigenous people. I would direct you, of course, to the very important work also of now-Justice Sébastien Grammond, who was also the dean of law at the University of Ottawa and who has written extensively on the area of child welfare legislation. I'm in full agreement with him, and as he's in full agreement with Professor Peter Hogg, then I would say to you that the preponderance of constitutional opinion in Canada would be that the federal government is well within its authority under 91(24) to enact this legislation.
Even beyond that position, the federal government may enact a national strategy to address issues of enormous importance. You will note in Bill C-92 there is reference to the fact that this is a national project with the government working with the provinces in the preamble. This is the indication, and in the position on coordinating agreements, it is seeking to have a new national approach.
I read those provisions of the bill as saying that there's respect for provincial authority and jurisdiction in child welfare. There is clear authority, constitutionally, for the federal government to act. However, ideally, we would harmonize and have what we sometimes call “double aspect”, or we would have a collaborative approach to child welfare.
I would go one step further to say that based on the scholarship and jurisprudence of Canada, and the recognition and affirmation of the inherent rights of indigenous peoples and first nations, in particular in section 35 of our Constitution Act of 1982, it is important to have this legislation for the following reason.
Until recently, for whatever reason, perhaps because of the colonial history of the Indian Act and the treatment of indigenous people, the federal government took the position that it was a mere funder of child welfare and had no obligation for the people who were in child welfare systems.
We know from both cases, significant class action and civil cases, and constitutional decisions, that all governments have a fiduciary obligation to their citizens, but particularly to first nations citizens, where the honour of the Crown is at stake. Canada is well within its right to enact legislation of this sort to act in that position as a fiduciary, understanding that the honour of the Crown is at stake.
There have been some abysmal and horrific failures with respect to child welfare. They are well known. I worked as an independent child advocate for a decade in British Columbia in that capacity, with a small staff. I had 17,000 child welfare cases, most of which were indigenous children. I catalogued report after report of the incredible failures that happened because of the absence of this legislation that we're dealing with today.
I want to begin by emphasizing to you, being open to answering any questions you may have, or bringing forward to the committee any material you may require, that the paradigm we have now is flawed. In particular, the provinces have authority over child welfare, because there's a provision of section 88 of the Indian Act that allowed them to apply child welfare legislation to first nations people without their consent. That is because of the Indian Act itself, which came into effect in 1876, which was a consolidation of some of the most heinous colonial ordinances. This horrible colonial chapter in our history sought to deprive indigenous people of their identity, their lands, their culture. That Indian Act continues to be on the books and that is the vehicle through which the provincial law is applied.
The world of Canada changed somewhat in 1982 when our Constitution was repatriated. From 1982 to today, our Constitution, which is called “a living tree”, has changed. We've had 40 major decisions of the Supreme Court of Canada on the rights of indigenous people that have consistently found precisely what I am presenting today, which is that there have to be novel collaborative approaches to addressing these persistent public policy failures.
One cannot help but conclude that with respect to child welfare, this is an abysmal and total public policy failure, and a failure of our legal framework to address in a contemporary way, profound issues that need to be addressed.
The legal and/or policy position that I wish to share with the committee today is that Bill C-92 is not only constitutional. It's overdue. It's vital. It's essential. I think it certainly would withstand constitutional challenge. That is not to say that if it is passed, the application of this bill to particular cases in particular places would not always have to be carefully assessed so that it balances the rights of individuals, like children who may be facing peril, and the collective rights of their families and their nations and their peoples.
In application, there will be many issues to be worked out. All legislation, when it's new, takes time to be worked out in practise. It doesn't happen overnight. However, the shifts that are present in this bill are very significant shifts for Canada.
I have worked directly in the child welfare system on literally thousands of cases. I did the first custom adoption in Saskatchewan for a first nations nehiyaw child. I have represented chiefs repeatedly in courts to try to get them to at least have standing to speak for their children, which often times they have been denied that standing. I've had the opportunity, even now, to appear in child welfare matters for first nations chiefs and others, and I see the barriers.
In fact, we have a child welfare matter under way in a court in British Columbia, where the judge read the draft bill and said, “This is a very helpful approach. Maybe I should hold off deciding the matter until this has passed, because it would give us a new pathway forward to do things that we couldn't do before to support this family, the chief and this grandmother. We could have family reunification.”
I want to conclude my opening remarks by saying that there are technical issues, of course. No bill, as the national chief has said, on its own, is going to respond to the incredible human rights failure and policy disaster that child welfare has been, for first nations children in particular. Will this bill create new tools and opportunities to shift things in a positive direction? I think it will. Will it require very close scrutiny? Yes, it will.
Significant resources are needed, and new resources have come into the child welfare system. I feel very strongly that there has to be careful evaluation of outcomes for children. Those resources need to go to the children who need them. When we're shifting public policy like this, everything should look at the framework of being accountable to children. Are children getting the resources needed? We do know that the outcomes lens is significant.
I'll leave it there. Thank you again. I'm more than happy to answer any questions and to provide references for the matters I've identified in my testimony.
Thank you.