Bill C-92: An Act respecting First Nations, Inuit and Métis children, youth and families receives Royal Assent

February 14, 2024

After several years of the documented effects of settler colonialism on Indigenous youths and children, there has been more pressure on the Government of Canada to rectify the damages and persuade legislative proposals that aim at empowering Indigenous communities. In response, the Supreme Court of Canada recently ruled that Bill C-92 is recognized constitutionally as Indigenous law and governance and holds power over Indigenous child welfare rights.

Bill C-92 was initially introduced in 2019 and co-developed with Indigenous Council and provincial/territorial representatives with the aim of addressing the overrepresentation of Indigenous children in child welfare systems and connecting them with their culture and communities. According to Census 2016, Indigenous children represent 52.2% of children in foster care and in private homes in Canada, despite accounting for only 7.7% of the overall population of children under 15 years old. The legislation also coincides with some of the Calls to Action facilitated by the Truth and Reconciliation Commission of Canada, the United Nations Declaration on the Rights of Indigenous Peoples, and the United Nations Convention on the Rights of the Child. It wasn’t until 2024 that the Bill received Royal Assent, becoming formally approved as an act of legislature under the monarch or the monarch’s behalf.

Under Bill C-92, Indigenous communities can develop laws that align more accordingly with their culture and history. Alternatively, it creates a legislative framework that acknowledges that Indigenous communities are entitled to have sovereignty as a nation and self-determination, particularly regarding legal and social issues around child welfare. It also means that child welfare laws can surpass provincial laws if they abide by the federal act. 

This Bill aims to prioritize placing children in the care of their immediate family, extended family, or generally within their community before resorting to non-Indigenous adoption as a last resort. It also emphasizes the move away from removing children as a result of a lack of social support, such as housing, poverty, and food insecurity, through preventive measures. As opposed to penalizing impoverished families, it has become more important and equitable to focus on branching access to these support systems that allow families to be together. 

National principles establish the provisions of Indigenous child and family services: best interests of the child, cultural continuity, and substantive equality. The principles help frame the general intentions to improve Indigenous child welfare but lack some clarity and fail to address the tools necessary for proactive change. 

Nonetheless, this critique does not intend to discount the importance of Bill C-92 as a form of legal recognition and political enforcement of Indigenous law. More so, its creation brings hope to the future of Canadian and Indigenous law-making as it offers greater provisions for their voices to be in our legal narratives. It has marked a stepping stone for Canadian society to affirm Indigenous children's rights while recognizing the importance of preserving families in their culture.

However, with the Canadian Government’s tumultuous history with Indigenous law-making and policy advising, there is still a lot of work necessary in hopes of maintaining a sustainable, fair, and adequate system for Indigenous communities and families to thrive. Even though Canada is pushing for a jurisdiction supporting Indigenous children and families, it is ultimately insufficient if not met with funding and support. The Yellowhead Institute, known for its research and publications by Indigenous scholars, noted, “While Canada is presenting Indigenous jurisdiction as the main selling feature of this Bill, without adequate funding, this will simply be jurisdiction to legislate over our own poverty.” (Yellowhead Institute, 2019).

With the future in sight, I emphasize the importance of data collection moving forward with Bill C-92. Firstly, data collection holds the government accountable for its promises and allows us to execute measures to meet the expectations of its commitments. Although the implementation of data collection is not explicitly mentioned in Bill C-92, it is nevertheless crucial, as it would also be along the lines of the Truth and Reconciliation Call to Action #2.

Canada has historically ignored tracking and measuring data across Indigenous communities, and its failure has allowed underfunded child and family services and many community issues to go unnoticed. Hence, data collection is necessary to track our legal track record while noting the gaps and development areas. Additionally, the importance of data collection not only accounts for the type of data produced but by whom. It is crucial to include Indigenous scholars, statisticians, and experts navigating their own community barriers, statistics, etc., to ensure a comprehensive and accurate representation of Indigenous realities.

While this legislation represents a significant step towards recognizing Indigenous sovereignty and addressing the injustices Indigenous communities face in Canada, it also focuses our attention on our commitment to meaningful change. As we navigate Bill C-92, we must ask ourselves: Will the Government of Canada provide the necessary funding and support to ensure the success of Indigenous-led child welfare systems? And how can we address the broader social, economic, and systemic issues that perpetuate inequalities within Indigenous communities? Moving forward, these questions must guide our efforts to create a more just and equitable society for all communities.