Canada’s Response to the Overrepresentation of Indigenous Children in Care by Frances Rosner

FRANCES ROSNER

Canada’s Response to the Overrepresentation of Indigenous Children in Care

The 2016 Census revealed that First Nation, Inuit and Métis children represented only 7.7% of all children under the age of 15 in Canada but accounted for 52.2% of children in foster care. In response to the overrepresentation of Indigenous children in care — aptly described as a humanitarian crisis, the federal government committed to developing legislation aimed at reforming the provision of Indigenous child and family services across Canada. The government acknowledged that children were being removed from their families and communities at disproportionate rates due to factors such as poverty, intergenerational trauma and culturally biased child welfare practices. 1 Further, in recognition of the inherent right of Indigenous peoples to self-determination and to ensure an appropriate remedial response to the crisis, the government endeavoured to develop national principles in collaboration with Indigenous peoples. This co-development process was not only an important step toward repairing the broken child welfare system — it was also consistent with the broader goal of reconciliation and Canada’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples.

In the drafting process, the government held 65 engagement sessions with nearly 2000 participants comprised of representatives from First Nations, Inuit, Métis and Treaty nations, self-governing First Nations, provinces and territories, as well as experts and advocates and importantly, youth survivors of the foster care system. 2 The nationwide engagement process culminated in the creation of An Act respecting First Nations, Inuit and Métis children, youth and families 3 (“Act”) that came into force on January 1, 2020. The Act could, with adequate resources, alter the way in which child protection is administered to Indigenous children and families. An overarching emphasis on the need to preserve cultural continuity by keeping Indigenous children connected to their families and communities is readily apparent throughout the legislation. The preambular language is symbolic as it acknowledges the harmful impact of colonization on Indigenous peoples.

The Act affirms the rights of Indigenous peoples to exercise jurisdiction over child and family services; adopts a best interests of child framework similar to what already exists in BC and imposes substantive equality principles on decision-makers. It prioritizes preventative services and prenatal care over other services to prevent apprehensions and specifically sets out that “a child must not be apprehended solely on the basis of his or her socioeconomic conditions, including poverty, lack of adequate housing or infrastructure or the state of health of his or her parent or the care provider.” Importantly, the Act sets out a priority scheme for placement of a child that places significant emphasis on preserving the child’s connection to family, community and culture.

The BC government made some changes to the Child, Family and Community Service Act in May of 2018 to counter the overrepresentation of Indigenous children in foster care — by setting out a child’s right to maintain a connection

to their community and culture. The amendments also carved out space for Indigenous families and nations to take part in the decision-making process — and for greater information sharing to allow for their meaningful involvement.

The Act, however, goes significantly further as it contemplates the granting of exclusive jurisdiction to Indigenous nations to decide what is best for their children. In principle, the potential of this ameliorative legislation is far reaching. However, implementation of the Act depends greatly on adequate financial resources to ensure that preventative services are available to Indigenous children and families, and to give Indigenous nations the capacity to exercise its inherent jurisdiction over their children.

1 bit.ly/bt0220fr-1 2 ibid 3 bit.ly/bt0220fr-2

Frances Rosner is a Métis lawyer working as a sole practitioner in Vancouver.

BRITISH COLUMBIA IH-HOUSE CAREERS

General Counsel - Vancity | 10+ years | Vancouver We are working with Vancity, the largest community credit union in Canada and an internationally recognized values-based banking pioneer, which sits at the nexus of environmental sustainability and cultural diversity. They are now looking for an experienced lawyer who has an alignment with their values to join the business as Vice President, Legal Services and General Counsel. In this position you will be a key player in the management and expansion of the existing high-performing legal team. You will provide legal oversight to major transactions, asset acquisitions and dispositions, and oversee general legal matters to support the business. Experience in drafting, reviewing and the negotiation of various agreements and contracts (specifically technology procurement contracts) will be highly valued. Also important is your track record of proven success in executing legal risk mitigation strategies, implementing company initiatives, and managing external legal spend.

The ideal candidate will have a minimum of 10 years’ legal experience, gained in a financial services institution or other highly regulated industry. You will be a dynamic leader and tactical thinker and be able to balance the needs of the business with the legal realities it may come up against. You will also be a relationship builder, able to deftly manage the demands of multiple stakeholders, and guide them concerning the legal and strategic aspects of whatever business challenges come up.

For more information or to apply (in MS Word format), please contact Mike Race or Amrit Rai at legalBC@zsa.ca quoting reference 29528. ZSA Legal Recruitment is exclusively retained on this search, and any applications received by Vancity will be redirected to ZSA.

Senior In-house Counsel (Part time potential) | 5+ years | Vancouver Our client is a major construction & infrastructure company currently looking to hire a senior in-house lawyer on either a fulltime or part-time basis, located in their Vancouver office.

In the role of Senior Counsel, you will provide legal support on complex P3 or alternative financing pursuits, and advise throughout the process. You will be working on all legal aspects of the RFQ, RFP, and preferred proponent bid submission processes; negotiate commercial and financial term sheets, project agreements, pre-bid and joint-venture agreements; assist in the preparation of commercial and finance documents; work with the in-house lawyer to assess and mitigate risk. There is also the potential to lead and manage individuals, teams or projects in time. The successful candidate will have anywhere from 5-15 years of experience advising on large public-private partnership (P3) infrastructure projects and finance transactions. Having completed a P3 project from start to finish is essential. The successful candidate will have strong corporate/commercial legal skills, including excellent drafting, negotiation, and attention to detail.

For more information on this rare opportunity or to apply (in MS Word format), please contact Mike Race or Amrit Rai at legalBC@zsa.ca, quoting reference #29429.

Head of Legal | 10+ years | Fraser Valley We’re working with a group of diversified businesses, with over 2,000 employees between 4 companies in the Fraser Valley, now looking to hire their first in-house lawyer, to head up their legal operations and provide guidance to their various business units. Reporting directly to the President, this position requires a dynamic leader with broad experience in corporate/ commercial law with particular emphasis on construction and real estate matters. There is a manufacturing and materials bent to some of the businesses, and apart from general commercial matters, you will be dealing with an array of contracts for existing and new construction projects, real estate transactions, litigation management, compliance and employment law.

The ideal candidate will have a minimum of 10 years’ experience, ideally having managed a broad legal remit in-house. The businesses are all based around the Langley and South Surrey area, so it’s an ideal position for someone living in the Fraser Valley and tired of the commute downtown. For more information or to apply, please contact Mike Race or Amrit Rai at legalBC@zsa.ca quoting reference 29573.

zsa.ca

CANADA’S LEGAL RECRUITMENT FIRM

T M