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Jim Baillie and Harry Swain: The government’s Indigenous child welfare law has noble intentions but is atrocious legislation

Commentary

In its quest to satisfy all 94 of the “calls to action” made by the Truth and Reconciliation Commission, the federal government has ticked another important box. Call number four is for child welfare legislation that “establishes national standards for Aboriginal child apprehension and custodial care…,” including the specific objective of “Affirm[ing] the right of Aboriginal governments to establish and maintain their own child-welfare agencies.”

The method is An Act respecting First Nations, Inuit and Métis children, youth and families enacted in 2019. It survived a constitutional challenge led by Quebec with a Supreme Court of Canada decision released in February, 14 months after a hearing involving 35 parties with appearances from 102 lawyers. With one important exception, the Court sustained the Act.  

The exception was for the most extraordinary of several provisions clearly intended to meet the demands of indigenous representatives. Section 18(1) states there is an “inherent right of self-government recognized and affirmed by section 35” of the Constitution. While the scope of section 35 has been interpreted generously by a series of Supreme Court decisions, a constitutional right of self-government has never previously been recognized by Parliament or the Court. The Court stated that this recognition is ultimately a matter for the courts rather than the legislatures and refused to affirm the validity of the right, leaving that for another day.

Instead, the constitutional basis for validity is said to be the old section 91(24), giving Parliament authority over Indigenous Peoples. On that basis, the Act provides that it is binding on both the federal and provincial governments.

A number of other provisions, not commented on by the Supreme Court, are startling in legal terms. The most obvious allows for “coordination agreements” among an Indigenous governing body (IGB), the federal minister, and the relevant province(s). An IGB is “an Indigenous group [that] … intends to exercise its legislative authority in relation to child and family services”; there is nothing to require that an IGB meet any standards, for example as to experience or resources.

After an IGB requests federal and provincial governments to enter into a coordination agreement, a dispute resolution mechanism specified in the federal regulations will apply to the negotiations; but these regulations will come into force only if the affected IGBs “were afforded a meaningful opportunity to collaborate in [their] policy development.” And if the parties fail to agree on a coordination agreement, so long as the IGB “has made reasonable efforts to do so” for a year, it will become an IGB as if the agreement were signed. Thereafter, “laws” passed by the IGB have “the force of law as federal law.”

There is not space here to elaborate on this “federal law” provision. We think it extraordinary that an IGB pronouncement should have the status of a statute of Canada, prevailing in specified circumstances over other federal and provincial laws, especially if the federal government has not agreed to its content.

Nor are these the only legally remarkable provisions of an Act designed to implement a call to action from the TRC. The Act is replete with vague phrases and imprecise concepts that can be given flesh only by regulation or judicial ruling. 

President of the Inuit Tapiriit Kanatami, Natan Obed, talks as he stands with Minister of Crown-Indigenous Relations Gary Anandasangaree, Indigenous Services Minister Patty Hajdu, and President of the Metis National Council, Cassidy Caron, about Bill C-92 on Parliament Hill in Ottawa on Feb. 10, 2024. Sean Kilpatrick/The Canadian Press.

The Act contains elaborate standards for the decisions of IGBs and care providers. Appropriately, the best interests of the child are given top priority. But the best interests of the child must be considered in the context of specified “concepts” dealing with “cultural continuity” and “substantive equality.” Many of these concepts are designed to ensure that Indigenous-born children remain in the Indigenous community, with priority to parents and close relatives for custodial decisions. Socio-economic factors are not to be influential. Like much else in the Act, these provisions will cause difficulties of interpretation that are left for resolution by Indigenous decision-makers.

There are about 330 First Nations in Canada, many higher-order tribal councils, treaty bodies, regional associations, and program delivery joint agencies. There are many Inuit and Metis governing bodies. The legislation purports to cover off-reserve and non-Status Indians, which adds more existing bodies, all of which are capable of becoming IGBs. Most of these are financially dependent on the federal government, and many do not have governance rules requiring faithfulness to the Charter of Rights and Freedoms, as all other governments in Canada must. 

The bottom line: noble intentions, atrocious legislation.

We submit that the segmentation of child welfare issues to the near-exclusive jurisdiction of IGBs, involving the use of highly innovative legal tools, should have been preceded by more extensive public scrutiny and debate than they received.

Joanna Baron: It’s time to stop giving the pro-Palestine protestors the benefit of the doubt

Commentary

At a scrum on Monday morning, Deputy Prime Minister Chrystia Freeland was asked about the protests on Parliament Hill over the weekend where pro-Palestine protestors chanted “Long live October 7” and “October 7 is proof that we are almost free.” As Jews were preparing to celebrate our liberation from slavery at the Seder table, and with over 130 hostages snatched by Hamas still unaccounted for, Freeland could not muster a clear condemnation of those who would celebrate their murder, torture, rape, and kidnapping. “I wasn’t in Ottawa over the weekend,” she demurred. 

A few hours later, after gathering her talking points, Freeland issued a statement expressing “shock and disgust” at the protests. But the fact that she needed time to consult with her comms staff before doing so is evocative of a much bigger problem. Imagine a crowd cheering in approval of the lynchings of Black people. Can there be any doubt that Freeland wouldn’t have found herself similarly muzzled in her response?

As protestors were jubilantly celebrating the October 7 pogroms as proof of their imminent freedom in Ottawa, campuses in the United States have been similarly roiled with increasingly tense pro-Palestine encampments. The campus groups are nominally asking for amnesty for students who had been suspended for earlier protests, divestment from certain Israel bonds, and disclosure of how the university invests its billions in endowments.

Some of the happenings at the Yale and Columbia encampments seemed like standard university tactics. There were exhortations to bring toothpaste, dance shows, and zine workshops. There were Shabbat services led by anti-Zionist Jewish student groups and Muslim prayers. I have to admit, as someone who hasn’t studied on a university campus for over a decade, I have a wistfulness for both youthful idealism and the meaning-making impulse to join up with a cause bigger than one’s self.

But erstwhile defenders of the youth simply expressing noble, if somewhat naive, pacificism, are missing the clear lust for violence on display at these protests. As much as I support free expression, the level of support for terrorist tactics like October 7 at these protests is a threat to liberal democracies that cannot be dismissed as mere peaceful protests by naïve youth.

There were cut-and-dry legal wrongs being committed: assault, including where Jewish students and faculty who merely committed the sin of being visibly Jewish were encircled with human chains and physically blocked. There was a young masked blonde woman who carried a sign menacing a group of pro-Israel counter-protestors as “AL-QASM’s NEXT TARGETS,” referring to the armed wing of Hamas that led the October 7th attacks and arguably a direct incitement to violence and clear grounds for expulsion under Columbia’s code of conduct. A Jewish woman, Sahar Tartak, was poked in the eye with a Palestinian flag and had to go to hospital.

But the most loathsome aspect of the weekend’s horror shows on both sides of the border was the unanimity with which pro-war, pro-eradication of Jewish and Israeli life, and pro-terror slogans were embraced by the crowds. The whole crowd joined in on chants of “Go back to Poland,” and “Burn Tel Aviv to the ground.” 

Two weeks ago in downtown Toronto, a “ceasefire now” pro-Palestine protest let its mask slip when, upon hearing a loudspeaker announcement that the Islamic Republic of Iran had sent 300 drones and missiles to Israel, virtually all those present, including children, hooted and cheered in delight. 

And, of course, in Ottawa, practically the whole crowd went along with gleeful chants in support of October 7. 

These protestors are not for peace, they are for violence— seemingly even beyond the borders of Israel and Palestine. When they say death to America and death to Israel, I believe they mean it.

This truth which is apparent to anybody with eyes and 30 seconds to watch a social media clip is frequently being downplayed as a few bad apples. Special Representative on Combatting Islamophobia Amira Elghawaby tweeted that the “problematic speech” of a “few individual protesters” is unacceptable and contrary to our shared values but then added she was concerned about “deliberate efforts to smear all protesters with one brush. It’s difficult to square Elghawaby’s assertion that it was only a “few individual protestors” when clearly the hateful chants were coming from the whole crowd on Parliament Hill.

Pro-Palestine protestors take part in a demonstration on Parliament Hill in Ottawa, Sunday, Oct. 22, 2023. THE CANADIAN PRESS/Spencer Colby

Moreover, the pro-Palestine movement has repeatedly failed to purge itself from its continually prominent hateful elements. Not every Columbia student might have been onside with marking Jewish students as the Hamas Al-Qassam Brigade’s next targets, but there has been no public disavowal of this conduct, nor of violence against Jews and Israelis generally. As Bret Stephens noted in the New York Times a few weeks ago, “The mark of a morally serious movement lies in its determination to weed out its worst members and stamp out its worst ideas. What we’ve too often seen from the ‘Free Palestine’ crowd is precisely the opposite.”

This is no accident. It follows from the ideological foundations of the movement which are plain for anyone to see. The main student organization behind the campus protests, Students for Justice in Palestine, issued this statement after October 7th:

Today, we witness a historic win for the Palestinian resistance: across land, air, and sea, our people have broken down the artificial barriers of the Zionist entity, taking with it the facade of an impenetrable settler colony and reminding each of us that total return and liberation to Palestine is near.

In the settler-colonialism ideology, which was spoon-fed to the students at the same elite institutions now scrambling to contain its fruits, any critical assessment of the colonized’s means of resistance—apparently, up to and including rape and torture, and slaughter of innocents—is an unacceptable imposition of white colonizer standards.

Alarmingly, this ideological framework also extends to rejecting the basic premises of a free society governed by laws. Yesterday, Students for Justice in Palestine tweeted out “WE REFUSE TO BE SUBSUMED INTO A LIBERAL FIRST AMENDMENT FRAMEWORK!”

What they mean is that they don’t want to be accommodated within a liberal society, they want to burn it to the ground. We’d best listen and act accordingly.