First Nations that have implemented youth protection legislation under the auspices of the federal Bill C-92 have jurisdiction over youth welfare regardless of place of residence held a provincial court judge in a decision viewed by legal experts as a precedent.
The long-awaited decision, widely regarded by legal pundits as an important stepping stone towards the right to self-government for First Nations, reaffirms the generic right to self-determination, confirms the authority of Aboriginal communities to withdraw children from the care of Quebec youth protection authorities, and highlights the importance of negotiating in good faith.
“This is the first judgment in such a matter, and we hope it will create a precedent,” said Frédéric Boily, a lawyer with Simard Boivin Lemieux in Dobeau-Mistassini in the Saguenay-Lac-Saint Jean region who represented the the Conseil des Atikamekw d’Opitciwan, an intervener in the case. “So another Aboriginal community that wanted to follow in our client’s footsteps would indeed have good moorings on which to build.”
The Quebec government, following up on a report that cast a critical eye on the province’s youth protection system, has tabled a proposed legislative reform that underlines and clarifies the notion of the best interests of the child as well as introduces new provisions to take into account the historical, social and cultural factors of Indigenous people.
The reform will also relax strict confidentiality provisions that have hampered communication between frontline workers and other healthcare professionals, reaffirms that children must be represented by an advocate, and entrusts the newly created position of National Director of Youth Protection with the responsibility of determining policy directions and practice standards, buttressed with the power to implement “corrective” measures.
Admonished by the Quebec Court of Appeal for single-mindedly trying to place a child before giving an opportunity to the parents to fulfill their parental responsibilities, youth protection authorities now face a more stringent test before envisioning adoption as a “solution to a difficult situation.”
In overturning a lower court ruling that authorized youth protection authorities to proceed with the placement of a child for adoption, the appeal court also provided guidance to courts of first instances, reminding them that they have a responsibility to question decisions made by youth protection, as is foreseen by the Youth Protection Act (Act).