Nations take different approaches to asserting jurisdiction on child and family services

As Cowessess First Nation sits on the cusp of asserting its rights under C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, Mi’kmaw Nations in Nova Scotia are leaning toward asserting their rights for their children and families through their existing Treaty and Aboriginal rights.

Cowessess Chief Cadmus Delorme and Assembly of First Nations (AFN) Nova Scotia/Newfoundland Regional Chief Paul Prosper explained their different journeys toward the same goal—taking control of the wellbeing of their nations’ children and families. They were speaking on March 2 at the third of five virtual gatherings hosted by the AFN on Child and Family Services and Self-Determination.  

“Our coordination agreement is draft-ready to sign,” said Delorme. Those signatures will come from Indigenous Services Canada Minister Marc Miller, Saskatchewan First Nations, Métis and Northern Affairs Minister Lori Carr, “and myself on behalf of Cowessess. It’s not signed as of this hour. We’re just working on some final technical stuff.”

Whether it’s the federal or provincial government that has the financial obligation to the First Nation is “kind of grey in the act,” said Delorme, and that is the hold-up at this point. When the funding does come, it will be a one-year commitment to allow Cowessess to get a better understanding of its funding needs.

“On April 1, in less than a month, Cowessess will have coast to coast to coast jurisdiction over our children and prevention for our families. It’s not reserve-based,” said Delorme.

He explained that Cowessess First Nation was moving forward with asserting its jurisdiction with a single coordination agreement with its home province of Saskatchewan, although 126 children living in other provinces had been identified.

“Cowessess is going to do this. We’re going to do it well. But if any province challenges us, we’re prepared to answer. We’re prepared to educate, but this is not a negotiation. We are already asserting,” said Delorme.

In February 2020, Cowessess First Nation ratified the Miyo Pimatisowin Act (MPA), affirming its rights and jurisdiction to act in the best interest of the child.

“If anyone ever challenged it from a colonial perspective, we didn’t go outside the goalpost of the (Bill C-)92, but the Miyo Pimatisowin Act is custom to Cowessess,” said Delorme.

The MPA is only one part of the work Cowessess undertook. They created the Eagle Woman Tribunal Council, their own judicial system which will oversee the MPA; created Chief Red Bear Children’s Lodge, which will serve as their child and family services agency; opened Sacred Wolf Lodge, a 10-bedroom facility which began as a home for females aging out of the system and is now a prevention place for families; and formed a variety of committees to examine finance, interprovincial needs and data, and legal aspects.

Before entering into coordination discussions with Ottawa and Saskatchewan, Cowessess began exploratory discussions with the two levels of government in June 2020.

“We were very technical in that word ‘exploratory’ because we didn’t officially launch our coordination discussion. No rights holder in Canada at that moment were doing coordination agreement discussions,” said Delorme.

Official coordination agreement discussions were launched in August 2020 and consisted of four months, with at least 10 hours dedicated weekly, to the topic with “minimal complications,” he said.

“Cowessess never gave up jurisdiction. We were just colonized and now we’re asserting,” said Delorme.

The Assembly of Nova Scotia Mi’kmaw is now in the second phase of a three-phase approach in their child welfare legal regime and are presently drafting their law. That process is being led by the Maw-Kleyu’kik Knijannaq (MKK), an initiative launched in 2018 prior to the federal government beginning to draft and discuss Bill C-92. MKK was formed to address gaps that impacted Mi’kmaw family, children, youth and communities in the 25 legislative amendments the province adopted to the Children and Family Services Act in 2017.

The work of the MKK was both interim and long term, said Prosper.

“The interim process was to work with the provincial legislation to seek as much gains as we can to that amendment process, but our larger, longer-term goal was to develop a Mi’kmaw law for Mi’kmaw children and families,” he said.

That law will apply to Mi’kmaw children throughout Nova Scotia, both on and off reserve.

MKK also began to consider the implications of C-92 when it was introduced.

“(MKK) sought to build Mi’kmaw-specific child and family law which will depart from provincial and federal legislation. When you’re departing from legislation … it’s always an important consideration and it’s something certainly that we don’t take lightly. With it comes a huge responsibility,” said Prosper.

MKK has undertaken a meticulous, lengthy process to both develop Mi’kmaw child welfare legislation as well as policies and protocols to support the implementation of that legislation. MKK is engaging and re-engaging with working groups, rewriting and revising as input requires, said Heather McNeill, legal advisor for MKK.

“Once it’s all done, when we get to the third stage, and we think that we have a final product that everybody’s had a look at then we’re going to take it to the assembly to seek ratification, but only after the assembly and leadership review it and then we will have our Mi’kmaw laws developed under the legal regime,” said McNeil.

She pointed out that they have a five-year funding agreement with Indigenous Services Canada (ISC) which began in 2018 when MKK started doing its work with the province. That five-year timeframe is still in place to undertake the work, she said.

“My understanding is leadership … don’t want to forego any options with respect to which regime that they would fall under, whether it be the act itself or just to have full recognition outright on the basis of our existing Aboriginal and Treaty rights, so there’s two potential streams in that scenario,” said Prosper.

“There is a process by which we are looking to enact our law and we’re mindful of timelines, but we’re also mindful of ensuring that our leadership and our communities are ready for this,” he added.

AFN Manitoba Regional Chief Kevin Hart, who is also the social development portfolio holder, noted that in December 2020, ISC had received letters and documentation from 26 Indigenous groups representing more than 80 communities expressing their intent to assert their jurisdiction over child and family services.

“This represents a significant step forward not only toward reducing the number of First Nation children and youth in care but toward increasing the over all well-being of our children, families and communities in our nations as we work toward reconciliation and self-governance and self-determination for First Nations,” said Hart.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.