The Impact of An Act respecting First Nations, Inuit and Métis Children, youth, and families on the Long-Term Health of Indigenous Children

Keywords: Health/Well-being of Indigenous Children, Adverse Childhood Experiences, Foster Care

Overview

Indigenous children are overrepresented in the child welfare system, constituting 52.5% (opens in new window)  of those in foster care, despite comprising only 7.7% of all children under 14 in Canada. The enactment of An Act Respecting First Nations, Inuit and Métis Children, youth and families (external link, opens in new window)  (“the Act”) in January of 2020 is a direct response to this alarming disparity. It is the first of its kind:  (PDF file) federal legislation (external link, opens in new window)  that governs Indigenous child welfare as well as affirming the inherent right of Indigenous self-government.

A powerful way of ensuring the survival of the cultures of Indigenous peoples is through the preservation of future generations of Indigenous children and families (external link, opens in new window) . The Act’s emphasis on supporting families and children underscores the critical need to protect Indigenous children, acknowledging their pivotal role in promoting resilience of Indigenous communities in Canada.

Historically, the push towards Indigenous self-governance has been seen as a contentious issue for Canada and the courts, primarily because of the view that self-governance is  (PDF file) incompatible with Crown Sovereignty (external link, opens in new window) . Indigenous groups in Canada have fought for self-governance judicially, through cases like Calder v Attorney-General of British Columbia, 1973 (external link, opens in new window) , R v Pamajewon, 1996 (external link, opens in new window) , Delgamuukw v British Columbia, 1997 (external link, opens in new window) , and Mitchell v MNR, 2001 (external link, opens in new window) . Ultimately, the judiciary has largely strayed away from recognizing Indigenous self-government rights, further highlighting the magnitude of the Act.  

Despite facing a constitutional challenge from the government of Quebec, on February 9th, 2024, the Supreme Court of Canada upheld the entirety of the Act as constitutional (external link, opens in new window) . This includes two provisions concerning federal force of law and paramountcy that were previously deemed unconstitutional by the Quebec Court of Appeal. This decision reinforces the strength of the Act as it continues to take effect.

Does the Act Have a Positive Impact on Adverse Childhood Experiences?

Adverse Childhood Experiences (“ACEs”) are traumatic events that occur between the ages of 0-17 years which may include violence, abuse, or neglect. ACEs also include aspects of a child’s environment that can undermine their sense of safety and stability (external link, opens in new window) . Children in foster care are at a heightened risk of cumulative adversities compared to their non-foster care counterparts (external link, opens in new window) . As a result, ACEs are a public health concern inevitably linked to chronic health issues, mental illness, and substance use problems in adolescence and adulthood.

For Indigenous children in particular, ACEs are rooted in colonization and historical traumas, such as cultural genocide and forced assimilation. Systemic oppression, and ongoing inequities, also contribute to ACEs that are prevalent for Indigenous children, such as, high rates of poverty, racialized violence and incarceration, as well as limited access to healthcare (external link, opens in new window) .

Neglect (opens in new window)  is often cited as the reason for Indigenous children being placed in care.

The sad reality is that poverty and poor housing (opens in new window)  are two of the key drivers of neglect for Indigenous children – factors which are outside the control of parents, making it difficult for them to address these risks. Consequently their children are more likely to stay in care for extended periods of time, and in some cases permanently. Put simply, most Indigenous children end up in care because their “parents are poor”, and “neglect is often just another way to describe poverty” (external link, opens in new window) .

The Indigenist Ecological Systems Model (external link, opens in new window)  illustrates that intergenerational learning of Indigenous knowledge, values and customs are key to healthy development for Indigenous children. Connection to culture includes life ways learned through elders, daily practices with family, community, and role modeling. As a result, feelings of cultural connection are an important protective factor for the health of Indigenous children.

At face value, the Act includes several provisions that may protect or mitigate the number of ACEs experienced by Indigenous children in foster care. Specifically, section 9(2) of the Act outlines several principles regarding cultural continuity that must be considered in relation to the best interests of the Indigenous child. Additionally, sections 15 and 15.1 of the Act stipulate that an Indigenous child cannot be apprehended solely based on poverty, and emphasizes the corresponding duty of service providers to demonstrate that reasonable efforts were made to keep the child with their family before apprehension. These provisions impose a positive obligation on the government to provide support to Indigenous children who might have otherwise been apprehended due to their socioeconomic status, potentially having a significant impact on the well-being of Indigenous children as they develop.

Early court decisions have demonstrated engagement with these aspects of the Act. For instance, the court in SS (Re), 2022 (opens in new window)  considered several components of the Act, including best interests of the Indigenous child, cultural continuity, and placement of the child. The court imposed several conditions on the non-Indigenous foster family to ensure the Indigenous child maintained ties to their Indigenous heritage. These conditions included mandating that the foster parent acquainted herself with “Indigenous events (opens in new window) ” – activities that recognized the Indigenous child’s culture and heritage – and that the foster parent ensured that the child participated in a minimum of three of these events annually.

Challenges Regarding the Act and the Long-Term Health of Indigenous Children

Some language within the Act creates a sense of optimism. If the Act recognizes cultural continuity as a protective factor in the health outcomes of Indigenous children, then it follows that the Act may have the potential to decrease ACEs for Indigenous children in foster care. This, in turn, could lead to long-term improvements in the health outcomes of Indigenous communities.

While the Act provides parameters around the removal of Indigenous children from their families based on socioeconomic status, it fails to address a glaring issue. Due to factors such as the cultural genocide of Indigenous peoples, intergenerational trauma, and ongoing lack of support for these communities,  (PDF file) many Indigenous families in Canada live in poverty (external link, opens in new window) . The correlation between poor health-outcomes and poverty is well-established. Children who grow up in poverty, are, as adults, more likely to experience addictions, mental health issues, physical disabilities, and premature death. (opens in new window) 

In other words, the Act is a temporary fix that addresses one barrier to keeping Indigenous children with their families. It does not address the widespread poverty that affects Indigenous communities across Canada. Put differently, true improvement in health outcomes for Indigenous children in foster care requires substantial psycho-social reform for Indigenous communities nationwide.

Conclusion

The enactment of the Act marked a significant step towards addressing the gross disparity of Indigenous children in Canada’s child welfare system. By affirming Indigenous self-governance rights and emphasizing the importance of supporting Indigenous families and children, the Act recognizes the essential role that Indigenous communities play in cultivating resilience within their own societal structures.

However, while the Act includes provisions aimed at mitigating ACEs for Indigenous children in care, it falls short of addressing underlying systemic issues, particularly widespread poverty within Indigenous communities. Poverty, intertwined with historical traumas and systemic oppression, remains a significant driver of ACEs and poor health outcomes for Indigenous children.

The long-term effects of the Act on the health and well-being of Indigenous children in care are yet to be determined. It is important to closely monitor emerging criticisms of the Act, such as insufficient funding, challenges with jurisdictional governance, and inconsistencies in its implementation. Evaluating these concerns are essential to understanding their specific impacts on health outcomes for Indigenous children in care.