Letter to the Editor

Children’s act: let’s get it right The Council of Yukon First Nations, which speaks for the majority of Yukon First Nations on this…

Children’s act:

let’s get it right

The Council of Yukon First Nations, which speaks for the majority of Yukon First Nations on this issue, wishes to respond to the incorrect and misleading comments made by Premier Dennis Fentie and Health Minister Brad Cathers regarding the Children’s Act Revision Process.

In particular, both the premier and the minister continue to emphasize in the legislative assembly that the Yukon government and the CYFN were “jointly consulting with the public and stakeholders, jointly developing the policy and jointly informing the legal drafting.”

We would like to correct the record.

In October 2003, an agreement was reached between then-minister Peter Jenkins and then-grand chief Ed Schultz regarding the process that would be used to consult with the public, Yukon First Nations and other interest groups regarding the development of a new children’s act.

A consultation plan set out a five-step process that would commit the Yukon government and the CYFN to undertake a thorough and meaningful consultation with all Yukoners.

Furthermore, this plan identified that the children’s act revision project would be composed of two co-chairs, one from the CYFN and one from the Yukon government. This approach was implemented to ensure both governments would collaborate and approve all the documents produced by the project team.

The Yukon government agreed to enter into this joint process because it has a fiduciary or “trust-like” obligation to Yukon First Nations and First Nation children in its care.

The Yukon government receives more than $6 million each year from the federal government for First Nation children in its care and custody.

To meet its legal obligations, therefore, the Yukon government recognized it had to ensure that Yukon First Nations would be involved in the development of a new child welfare law.

The CYFN was fully engaged as an equal partner in the preliminary consultations and the development of key products of the project team, in particular, the What We Heard consultation documents and the policy forum papers. Over the last week, the minister has referred to these documents.

However, this joint collaborative process broke down in July 2005, when the Yukon government advised the CYFN that the new law would not permit Yukon First Nations or extended families to work in collaboration with a social worker in child welfare decision-making.

At that time, the CYFN was told the Yukon government would not entertain any discussion regarding the creation of an independent body to hear complaints. We were also told the Yukon government would not create a child advocate’s office.

The “joint” process did not proceed past the third stage of the consultation plan. In March 2006, the CYFN discovered that a draft policy option document was being developed without CYFN’s knowledge or direct involvement.

Upon this discovery, the CYFN Chiefs’ Committee on Health withdrew its participation from the Children’s Act Revision Process.

In April 2006, the CYFN re-joined the Children’s Act Revision Process but the terms of reference had changed. The co-chaired model was abandoned and an internal Yukon government process was established.

Although the Yukon government said co-governance was not an option, First Nations decided they still needed a way to help inform the legislation and “keep their fingers in the pie,” so to speak. The CYFN worked in good faith to keep the process going.

The CYFN did receive money from the territorial government to pay for the travel costs of the First Nation Health and Social Directors to sit on the working group.

Only very late in the process was a lawyer permitted to review the legislation. These costs totaled $200,000, and not $400,000, as claimed by one senior YTG official.

A new process evolved. Every two months, YTG’s revision team would meet with Yukon First Nations representatives to go over a specific topic, such as custom adoption.

The actual drafting process was done by a YTG lawyer, who would bring back pieces of the legislation for this group to review.

The Yukon First Nation representatives were not provided the opportunity to seek any other legal or policy advice with respect to the pieces of legislation.

The Yukon First Nation governments were not provided with a complete draft of the Child and Family Services Act until late November 2007.

Because of the Christmas and New Year’s holidays, and a brutal cold snap in early 2008, they had very little time to consult with their citizens and technicians.

YTG technicians said they wanted the legislation ready by the end of January, in time for the spring sitting of the legislature.

On February 6, the CYFN asked the Yukon government in a letter not to introduce the draft bill to the legislative assembly until it was revised to address the significant concerns raised by our citizens during the latest round of consultations.

The CYFN believes the Yukon government’s fiduciary obligations require it to undertake consultations with respect to a law that predominantly affects our children. Consultation does not mean merely exchanging information.

While consultation does not give Yukon First Nations a veto either, it must be meaningful and include a commitment to engage with Yukon First Nations to address their concerns.

Providing Yukon First Nation governments with a draft bill, and an inadequate amount of time to review and respond to it, does not fulfill this fiduciary obligation.

We continue to repeat that we cannot put a timeframe on the health and safety of our children and urge the Yukon government to take the time to get it right.

The premier’s confrontational attitude — “If you don’t like it, you can take on the responsibility, the cost and the liability to take care of your own children as negotiated in your agreements” mantra — does nothing to promote respectful and government-to-government relations.

Yukon First Nations already face huge challenges when it comes to capacity issues and accessing money to run programs and provide services. Should they be forced to take on one more program just because the government won’t listen?

No. But they might need to, if they do not want to see any more tragic cases like the one currently being heard in the Yukon Supreme Court because accountability processes and participation measures in Bill 50 are lacking.

Andy Carvill

Grand Chief of the Council of Yukon First Nations