Weighing Indigeneity: Culture and the Indigenous Child’s Best Interests under Bill C-92

Abstract

Bill C-92 (or, An Act respecting First Nations, Inuit and Metis children, youth and families) came into force in January 2020, marking an important milestone in the history of Indigenous child welfare in Canada. This paper briefly reviews the history of the Indigenous child welfare system and the systemic problems and policy decisions that have led to the overrepresentation of Indigenous children in care. It then attempts to predict the effect of Bill C-92 on specific areas of this system. While acknowledging that many factors (such as the meaningful recognition of Indigenous peoples’ inherent right to self-government, as well as increased funding to Indigenous communities’ child welfare programs) are important facets of a holistic solution to the Indigenous child welfare crisis, this paper focuses on the narrow area of the judiciary’s implementation of the Best Interests of the Child principle. It argues that judges have hitherto implemented this principle on the assumption that preserving an Indigenous child’s culture is at best a secondary priority, thereby exacerbating the existing crisis. The paper further argues that Bill C-92 runs against this trend in the case law and that it elevates the weight of preserving an Indigenous child’s culture so that it is a primary concern. The paper accomplishes this task by reviewing existing jurisprudence on Indigenous child welfare and comparing existing provincial statutes with the provisions of Bill C-92.