To date, 10 First Nations in Saskatchewan have formally given notice to Canada and Saskatchewan that they intend to exercise their inherent jurisdiction over Child and Family SIt iervices (“CFS”) through the Bill C-92 framework. Several other First Nations in Saskatchewan are also already working on revitalizing or developing their own CFS law. Reclaiming inherent jurisdiction over child and family well-being is a journey that takes time.
First Nations have the right to have their voice heard right now in the Saskatchewan CFS Court system.
Involvement in Saskatchewan CFS child protection hearings can be a key component of the transition for a First Nation during the period before its own CFS law comes into effect. In addition, amendments have been made to Saskatchewan CFS legislation to more closely align with An Act respecting First Nations, Inuit and Métis children, youth and families (“Bill C-92”).
Under The Child and Family Services Act (the “CFSA”), a First Nation has the right to:
- receive notice of every child protection hearing involving a child from their First Nation; and
- party status in every child protection hearing involving a child from their First Nation.
This is an important expansion of First Nation rights under Saskatchewan CFS legislation.
Previously, under the CFSA, a First Nation was only entitled to notice and party status if a permanent or long-term wardship order was being sought. Now, the Chief, Chief’s designate or agency is entitled to notice for all protection hearings involving their Indigenous children and are deemed to be a party of the protection hearings. Bill C-92 also provides that the Indigenous Governing Body has the right to make representations in child protection hearings.
How to participate in CFS child protection hearings
Having party status generally provides full participatory rights throughout child protection hearings, settlement conferences and at trial, including the right to make recommendations, receive disclosure of evidence and make legal submissions to the Court.
Bill C-92 also provides that a First Nation has the right to make representations to a Court. This has been interpreted to include a right to provide information to the Court regarding a First Nation’s culture, customs, traditions and values and to make recommendations to the Court regarding the outcome of the child protection hearing. This can also include the First Nation’s recommendation on how to keep its children connected to their family, First Nation, land and culture.
A First Nation may be represented by legal counsel, the Chief or another designated individual, such as the First Nation Representative.
Importance of involvement in child protection hearings
The involvement of First Nations in CFS proceedings may impact the outcome of a child protection hearing, including by assisting the Court in making a more informed and culturally sensitive decision. It also allows the First Nation to ensure that their community’s concerns are represented when their children have been, or are at risk of, being apprehended.
By participating in CFS court proceedings, a First Nation may impact decisions made and actions taken involving its children, youth, young adults and families – even if the First Nation has not yet exercised its inherent right of self-government over CFS by revitalizing or making its own CFS law.
Are you a First Nation Representative? Please let us know if there a topic you would like us to cover in a future insight.
MLT Aikins can assist to ensure that a First Nation’s concerns and considerations are represented when its children are subject to a child protection hearing in a Saskatchewan Court.
MLT Aikins has experience assisting Indigenous Governing Bodies with taking control over CFS and drafting their own CFS laws and negotiating coordination and fiscal agreements. We would be honoured to assist your Indigenous community in all aspects of asserting and exercising your inherent right of self-government over CFS.
Contact Laura Schaan or Anna Beatch to learn more.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
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