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On January 1, 2020 a new law in Canada focused on Indigenous Children and Families, An Act respecting First Nations, Inuit and Métis children, youth and families (the “Act”) came into force . The Act’s preamble proclaims the government’s intention to implement the United Nations Declaration on the Rights of Indigenous People and the Truth and Reconciliation Commission of Canada (“TRC”) Calls to Action.

The preamble also recognizes the harm caused by past policies and seeks to heal the intergenerational trauma caused by separating Indigenous children from their communities.

The new Act:

  • Signals a shift toward a more cooperative partnership through recognition of Indigenous jurisdiction over child and family services;
  • Seeks to eliminate the over-representation of Indigenous children in child and family services; and
  • Imbeds in the the best interests of the Indigenous child principle the physical, emotional and psychological well-being of the child as well as preservation of the relationship the child has with an Indigenous community.

Three of the key changes in the new law are:

  1. Services Providers must provide notice to an Indigenous child’s parents or guardians as well as to the relevant Indigenous government body before taking, “any significant measures in relation to the child” and before apprehending a child must demonstrate that reasonable efforts were made to have the child continue to reside with a parent or adult family member.
  2. Family reunification is promoted by requiring an ongoing reassessment of whether it would be appropriate to place the child with a parent, family member or adult belonging to the same Indigenous community in situations where a child has been apprehended.
  3. Indigenous groups can request to make agreements to coordinate services with the Federal and Provincial governments. Entering into a “coordination agreement” to resolve issues such as the provision of emergency services and funding arrangements enables Indigenous laws to prevail over federal, provincial and territorial laws.

While the law is well intended some concerns have been expressed about the funding available to implement the law, and whether the “Best Interests of the Child” principle limits rather than empowers Indigenous groups given that it is a western-normative test that is presumed as neutral.