In late April, the Quebec National Assembly (QNA) quietly passed Bill 15, a reform to the Quebec Youth Protection Act that reinforces provincial jurisdiction over Indigenous child welfare, making it the only province in Canada to continue to assert legal jurisdiction over Indigenous children.
“We continue to have this kind of imposition on our people, legislation over us, wanting to control us, wanting to dictate how to govern our affairs,” said Mohawk Council of Kahnawake (MCK) grand chief Kahsennenhawe SkyDeer in response to the bill.
“We know how to handle our affairs, and we know how to take care of our children, and this is just another example of them overstepping.”
According to Derek Montour, executive director at Kahnawake Shakotiia’takehnhas Community Services (KSCS), Bill 15 limits the self-determination of Indigenous communities and prescribes how youth protection services are to be delivered, including in First Nations communities.
Public protest from Indigenous nations and their leaders went unheard as the bill passed unanimously and without amendments on April 26, pitting provincial legislation against the 2019 federal law on Indigenous child and family services known as C-92.
Bill C-92 recognizes Indigenous Peoples’ generic, inherent right to self-government in relation to child and family services, a point that was upheld in a Quebec Court of Appeal ruling on the province’s challenge to the federal law. The ruling is being appealed to the Supreme Court of Canada.
“That’s wonderful news coming from the court. They said that First Nations have this generic, inherent right,” said Richard Gray, the social service manager at the First Nations of Quebec and Labrador Health and Social Services Commission (FNQLHSSC).
“As far as the rule of law goes in Quebec, C-92 is the rule of law, and Quebec has to respect that.”
The Quebec Court of Appeal opinion outlines the Attorney General of Quebec’s stance on C-92.
“Sections 1 to 17 of the Act (“Part I”) are invalid because they have the effect of dictating the manner in which provinces are to provide services to Aboriginal children and families,” it reads.
The Court of Appeal document further clarifies, “He (The Quebec Attorney General) is of the view that s. 35 of the Constitution Act, 1982 does not recognize a right to Aboriginal self-government.”
Quebec courts and group homes, as well as the Youth Protection Act itself, are the services offered to Indigenous communities referenced in the Attorney General of Quebec’s statement.
The application of these services has long seen strong opposition from Indigenous nations, and again during the drafting of Bill 15, when Gray, among other Indigenous social service providers, flagged fundamental problems with Quebec’s approach to Indigenous child welfare.
Lionel Carmant, Quebec’s minister for Health and Social Services and the sponsor of the bill, chose not to adopt any proposals made by the Aboriginal Sub-Working Group (ASWG), a group of Indigenous representatives that was formed for the purpose of bringing forward recommendations to the legislation.
One of the recommendations put forward involved reforming Quebec’s one-size-fits-all approach to the health and safety of children from dozens of communities in the territory, according to Gray, who was a member of ASWG.
The bill further reinforces who has the final say in cases of Indigenous youth protection: “Ultimate decision making, final decision making comes from the Quebec director of youth protection,” Gray noted. When further disagreement occurs, these cases go to the Quebec tribunal, where decisions are made by a Quebec judge.
At the same time, the province offers virtually no funding for family and social services for Indigenous communities throughout the territory, including Kahnawake.
“KSCS receives the vast majority of our funding from the federal government,” said Montour. He estimates around 98 percent of KSCS funding is federal. “We get a small amount from the province for the delivery of the Youth Criminal Justice Act,” which he estimated is around $120,000 annually.
The Quebec government has yet to announce when the law will be enforced in Indigenous youth protection. Likewise, they have not yet released their plan for funding the changes the law would require.
Ultimately, this case is as yet unresolved as the Supreme Court of Canada will have its first hearing on the C-92 decision in early December 2022. Despite this, the Quebec Court of Appeal decision opens the door for communities like Kahnawake to draft their own legislation in order to circumvent provincial law, by acknowledging three legal jurisdictions: federal, provincial, and Indigenous jurisdictions.
“We recognize our community as being our jurisdiction. Our laws apply here,” said Sky-Deer. “And it just goes to show that we, as Indigenous communities here in the province, have to really pull together to try to find a way forward with this government.”
Other nations in Quebec have already set this change into motion, in order to prevent the implementation of Bill 15.
“We already have one community, Opitciwan, that moved forward on that. They introduced their bill last November and adopted their own bill this past January,” said Ghislain Picard, chief of the Assembly of First Nations Quebec-Labrador (AFNQL). “Apart from their community, there are, I believe, 15 more communities ready to follow suit.
“Whatever Quebec does, they had the opportunity to show some good faith by accepting the amendments that we were proposing, and they have chosen not to.”
“When we feel that there’s an imminent threat, or someone is coming for our children, whether it’s through imposed languages – in the past it was taking our kids to go to Indian residential schools – we’re definitely going to be more vocal and there’s going to be more actions,” said Sky-Deer, “on behalf of the community.”
Minister Lionel Carmant declined an interview for this article.
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