B.C.’s child-welfare bill flawed and insufficient, say critics

Proposed changes to British Columbia’s child-welfare legislation are “paternalistic” and “underwhelming,” says the province’s Representative for Children and Youth, Bernard Richard.

The changes, introduced on April 24, 2018, aim to reduce the number of Indigenous kids in care in B.C. Though Indigenous children account for less than 10 per cent of children in B.C., they make up 63 per cent of the 7,000 or so kids in the province’s child-welfare system. Across the province, Indigenous communities have for years been pushing for more control over child welfare in their own communities.

If passed, the proposed bill will give Indigenous communities “greater involvement in child-welfare decisions to help keep their children out of care, safe in their home communities and connected to their cultures,” said the Ministry of Children and Family Development in a press release.

But the proposed changes don’t go nearly far enough, says Richard, whose office is responsible for protecting the rights and interests of children and youth throughout the province.

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Critics say Bill 26 makes collaboration optional, not mandatory

Here’s an excerpt:

6 Section 5 (1) is repealed and the following substituted:

(1) A director may make a written agreement with the parent of a child for the provision of services or support to assist the family to care for the child [emphasis added].

(1.1) If a director makes an agreement under subsection (1) respecting an Indigenous child, the following may be included as a party to the agreement [emphasis added]:

(a) if the child is a First Nation child, the First Nation;

(b) if the child is a Nisga’a child, the Nisga’a Nation or the child’s Nisga’a Village;

(c) if the child is a Treaty First Nation child, the Treaty First Nation;

(d) if the child is not a First Nation child, a Nisga’a child nor a Treaty First Nation child, the legal entity representing the child’s Indigenous community.

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“Much of the power and responsibility remains with the [ministry’s] director of child welfare,” Richard told The Discourse, adding that the B.C. government “needs to be less paternalistic” toward Indigenous communities.

Rather than seizing an opportunity to substantially shift the government’s approach to child welfare, this bill tinkers with the status quo — and fails to honour the B.C. NDP’s commitment to advance reconciliation between Indigenous and non-Indigenous people, he says.

“What I’m hearing from First Nations is that they are ready to take responsibility for their own child welfare,” he says. “But they need the kinds of supports that can allow that to happen. The legislation doesn’t do that.”

Katrine Conroy, the minister of children and family development, says Bill 26 is just a “first step” toward empowering Indigenous communities to look after their own kids in their own ways, on their own terms.

“The ultimate goal is transferring authority over child welfare to the Indigenous communities,” she told The Discourse.

The current law requires the ministry to notify an Indigenous child’s community after the child is removed. If the bill passes, the ministry could choose to involve the community earlier on, before a child is removed from their family.

And in cases where a child is removed, the proposed changes would allow the ministry to step back if the community and the parents can come up with a plan “that the director considers adequate to protect the child.”

But critics of the bill are concerned that it still gives the ministry too much leeway when it comes to engaging Indigenous communities. While ministry workers could choose to engage the communities, the language used in the bill means they wouldn’t have to.

“The usage of the word ‘may’ rather than ‘shall’ gives the [ministry’s] director all the discretion in the world to engage with First Nations or not,” Richard points out.

Anne Clayton agrees. She spent 22 years working for the ministry, first as a front-line social worker, and then as the director of adoption. She understands that social workers are often overworked and under-resourced, and may be hard-pressed to implement the proposed changes without more resources.  

“Where the legislation says ‘must’ and ‘shall,’ social workers are more compelled to follow that because that is the law,” she says. “Where it says ‘may,’ it’s at their discretion, and if it’s too much work for them, they’re not going to do it.”

The proposed bill also fails to address existing barriers that can make it difficult for some Indigenous communities to get involved, she adds. “Even if they want to be involved and want to provide services to their families, with no additional funding, a lot of the small, very poor nations are not going to be able to do anything,” she says.

Ultimately she’s not convinced these changes will help reduce the overrepresentation of Indigenous kids in government care.

William Schneider is also skeptical. As chief of the Samahquam tribe, he has advocated for families in his community who are fighting to get their children out of foster care.

He doesn’t see the B.C. government relinquishing its power over Indigenous child welfare. “I still think they have this understanding in government that they have a responsibility for all the people of B.C. — and that includes the Indigenous people,” he says.

“If they’re changing the legislation to dissolve their role in this, then, yeah, it would be a good thing,” he says. “But I don’t see that happening.”

Schneider wishes the ministry would “be more comprehensive and open and transparent about their actions.” He wonders how they’ll communicate the proposed changes to families on the ground in his community.

“It’s one thing to amend the Act,” he says. “It’s another to explain what those changes are to that sister of the mother of a child that is in jeopardy.”

He says his community wasn’t consulted about the proposed changes and would have appreciated a chance to participate in their development

Minister Conroy says her ministry had “briefings with a number of Indigenous communities” before introducing the bill, and they held “over 40 meetings” at the First Nations leadership gathering in September 2017, which was held on the traditional territories of the Musqueam, Tsleil-Waututh and Squamish First Nations.

Conroy also notes the proposed changes stem directly from the recommendations made by Grand Chief Ed John in his 2016 report on Indigenous children in care, which was commissioned by the government. That report is based on extensive consultations with Indigenous leaders, she points out.

But that report also pointed out a critical gap in communication between the ministry and Indigenous communities. John found that Indigenous leaders weren’t being kept in the loop when children from their communities were placed permanently into government care.  

“As I met with First Nations leaders, elders, hereditary Chiefs, and matriarchs, I provided them with a list of those children from their communities who were under [Continuing Custody Orders.] No one had seen these lists and all were surprised they could have access to this information,” he wrote.

Two years later, child-welfare advocates and Indigenous leaders are still asking the ministry to improve communications.

B.C.’s Representative for Children and Youth says his team was given just one day to review this new bill and make recommendations. “It was a fait accompli,” Richard says.

These proposed changes were “prepared unilaterally,” the First Nations Summit of nations and tribal councils in B.C. wrote after the ministry tabled the bill.

The Summit is concerned that the bill’s proposed amendments “do not go far enough in addressing the principles” of the U.N. Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission’s Calls to Action, and Indigenous Peoples’ “inherent right to self-determination and self-government.”

“The amendments do not lay the foundation for the more significant shift required to change the child-welfare conditions where the overrepresentation of First Nations children in care remains the most serious issue,” the Summit wrote.

The Summit says it hopes the government will realize that “more profound improvements are needed,” before passing this bill.

While Conroy hopes the bill will be passed by the end of May, she says the ministry may consider making additional changes to the law and will “definitely [be] having more active discussions with individual communities.”

The ministry is “very much about working collaboratively with First Nations communities,” she says, though she adds that nothing trumps its ultimate responsibility “to ensure the safety of children.”[end]

This piece was edited and fact-checked by Robin Perelle, with copy editing by Jonathan von Ofenheim. Discourse Media’s executive editor is Rachel Nixon.