Paradigm Shift in the CFCSA — Indigenous Children Cannot Afford to Wait


Paradigm Shift in the CFCSA — Indigenous Children Cannot Afford to Wait

In recognition of the ongoing legacy of harm caused by the forced removal of Indigenous children from their families and communities in the child welfare system, the B.C. government has taken significant steps to overhaul the Child, Family and Community Service Act (CFCSA). Bill 38, the Indigenous Self-Government in Child and Family Services Amendment Act, passed on November 24, 2022 — it recognizes the inherent right of Indigenous communities to self-government and made B.C. the first province in Canada to pass legislation enabling Indigenous Governing Bodies (IGB’s) to assume jurisdiction over child and family services.

Importantly, Bill 38 was developed in consultation with Indigenous rights holders, Treaty First Nations, Métis Nation B.C. and IGB’s in keeping with B.C.’s commitments under the Declaration on the Rights of Indigenous Peoples Act (DRIPA) to reconciliation — by removing barriers for Indigenous communities to self-government and by paving the way for IGB’s to exercise jurisdiction over child and family services. Given that Indigenous children continue to be over-represented in the foster care system at a rate of 68% despite comprising less than 10% of the child population in B.C., the changes are welcomed by Indigenous leaders, including Grand Chief Stewart Phillip, Union of BC Indian Chiefs: “The colonial era of the Province controlling child welfare must come to end — and the legislation cannot be passed soon enough.”

Key amendments include the following: the CFCSA must be administered and interpreted in accordance with Indigenous communities’ inherent right of self-government; enables IGB’s to assume jurisdiction over child-welfare services in accordance with Indigenous laws; strengthens collaborative and consent-based decision-making with Indigenous communities for adoption placements, and ensures that both Treaty First Nations and non-Treaty First Nations have opportunities to exercise jurisdiction in these areas; enables information sharing between the province and IGB’s to assist IGB’s with planning and implementation of jurisdiction; establishes a new child-welfare director in the province to provide guidance and advice to CFCSA directors and their delegates to help navigate a multi-jurisdictional child and family services system; and enables consent based coordination agreements to be made respecting jurisdictional powers under the Adoption Act and CFSCA.

The amendments stipulate that jurisdiction may only be conferred on and exercised by IGB’s, a term defined under DRIPA as “an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by S. 35 of the Constitution Act, 1982.” In other words, for Indigenous communities to take back jurisdiction over child and family services — they must be formally recognized as IGB’s. Thus far, despite that we have over 200 First Nations and Indigenous communities in B.C. — we presently have only 11 recognized IGB’s in the province.

That said, the full remedial impact of the amendments will depend greatly on the establishment of IGB’s, the capacity of IGB’s to develop their own child and family services laws, and then the ability to successfully enter agreements with the province or tripartite agreements with the provincial and federal governments. This is clearly not an easy process, as the CFCSA amendments were drafted in part to align with the federal legislation — An Act respecting First Nations, Inuit and Metis children, youth and families, that came into force January 1, 2020. The federal Act similarly established a process wherein Indigenous communities recognized as IGB’s could take back jurisdiction through tripartite coordination agreements. More than three years later, we do not have any IGB’s in the province with a ratified coordination agreement. Therefore, while in this waiting period, hopefully stakeholders will amend their practices to comport with the spirit and intent of the changes underway by working diligently toward keeping Indigenous children with their families and in their communities, as children can’t afford to wait.