1994 Legislative Session: 3rd Session, 35th Parliament
HANSARD
The following electronic version is for informational purposes only.
The printed version remains the official version.
(Hansard)
THURSDAY, JUNE 9, 1994
Morning Sitting
Volume 16, Number 8
[ Page 11697 ]
The House met at 10:03 a.m.
Prayers.
Hon. J. MacPhail: In Committee A, I call Committee of Supply, the Ministry of Education estimates. In the House I call committee on Bill 46.
CHILD, FAMILY AND COMMUNITY SERVICE ACT
The House in committee on Bill 46; D. Lovick in the chair.
On section 1.
V. Anderson: As we begin this particular discussion on Bill 46, I just want to say that we have raised the concern about the definitions of child and youth. We have raised those in discussion before, because a child is listed as 19 and a youth as 16. I'm not sure there's always a consistency in this regard through the act. So I want to raise that at this point to clarify those definitions and whether they're consistent throughout the act.
Hon. J. MacPhail: I appreciate your concerns and will try to address them throughout to show that indeed the two acts are consistent.
There is an additional definition in the next act, Bill 45 -- which I hope we will be getting to later today -- that defines youth as being up to the age of 24. That is to make provision for extension of services to youth beyond the age of majority. That really is the only distinction. We'll try to give you comfort around that as we go through the bill.
G. Wilson: I believe that the Alliance concerns and proposed amendments have been forwarded to the minister or to the minister's staff. I notice that the Liberal opposition has almost as many amendments themselves, so I suspect we're in for a fairly lengthy and, I hope, productive debate in committee stage.
Under the definitions section, I want to start with the definition of aboriginal child. I wonder if the minister might follow through on the language that is written there with respect to an aboriginal child. It reads:
"'...aboriginal child'" means a child (a) who is registered under the Indian Act (Canada), (b) who has a biological parent who is registered under the Indian Act (Canada)" -- I don't think anybody would particularly argue either of those -- "(c) who is under 12 years of age and has a biological parent who (i) is of aboriginal ancestry, and (ii) considers himself or herself to be aboriginal, or (d) who is 12 years of age or over, of aboriginal ancestry and considers himself or herself to be aboriginal...."
The concern we have is with the two conjunctions "and" and "or." It would appear that the question under (c)(ii) -- "considers himself or herself to be aboriginal...." -- refers to the biological parent. Therefore it would appear that there are really two ways for that definition to apply. I don't know if that's intended or not, with the way the language reads. If the minister can clarify that first point, we might discuss it further.
Hon. J. MacPhail: Let me just tell you that the act is written so the intention of an aboriginal definition for a child under 12 is through the parent. It has to be attached to the background and origin of the parent. If a child is over age 12, the declaration is attached to the ancestry of the parent, but the child can self-declare as well.
G. Wilson: Do I understand, then, in the definition of this act, that a child who is born to a non-aboriginal mother and whose father is aboriginal but may not necessarily be in the family unit anymore would be considered aboriginal even though there has been no custodial relationship, and maybe not even any parental relationship, between the mother and the aboriginal father? If it can be proven that the father of a child is a member of an aboriginal community, that child, for the purposes of this act, is deemed aboriginal. Is that correct?
Hon. J. MacPhail: Yes -- if the child over 12 chooses to declare that ancestry or, if the child is under 12, if a parent chooses to declare that ancestry.
G. Wilson: Then that comes back to the concern we might have with respect to.... It talks about a biological parent, and that's an important functioning difference here. Under the Family Relations Act, there are various relationships, between biological parent, custodial parent or legal guardian. This is not a small classification of individuals we're talking about; a lot of children have one parent who is aboriginal, but they are not a family unit; there is no custodial relationship or traditional parental relationship.
[10:15]
It is really important that we get this nailed down, because this definition will apply throughout the act and will provide special rights to those individuals, and it will also provide conditions to aboriginal parents for the reclamation of aboriginal children. So I need to make it absolutely clear. In the definition of this act, a child under 12 who has a biological parent who is aboriginal is considered aboriginal, whether there has been any custodial guardianship, family relationship or ongoing parenting, or whether the mother or father.... Well, clearly the mother would have been, so it would only apply to whether the father has ever been in the picture at all.
Hon. J. MacPhail: I'm glad that we can clarify this at the beginning, so that we are clear in our discussions throughout. It's important. If either parent of a child under 12 who has an aboriginal biological ancestry chooses to declare that ancestry, then that exists. I mean, your ancestry is your ancestry through your biological parents. However, if the child is in a situation where no one declares that ancestry for the child under the age of 12, then the child is not defined as aboriginal.
V. Anderson: Following up on the same discussion, are you saying that the biological parent's rights override those of the adoptive parent? If an aboriginal child has been adopted and has legally become part of the family, and then that family breaks up, are you saying that the biological parent can override the adoptive parent? I would find it very difficult in my own family if it were the case that the biological parent overrides the adoptive parent, because it's our understanding that once the adoption has taken place, that child is legally ours. You're saying that that's not true under this act, as I hear you describing it. If the mother is non-aboriginal -- or vice versa; if the father is non-aboriginal and the mother is aboriginal -- and those two biological parents disagree on the child under 12, how is that resolved?
[ Page 11698 ]
Hon. J. MacPhail: We've got to make sure that we're clear on what acts govern, so I'll clarify that right now. This act deals with the definition of parent. Under the Adoption Act, which is separate and apart from this legislation, the adoptive parents stand in the shoes of the parents -- you're quite right. However, if the adoptive parent is an aboriginal, then the child would have access to being declared an aboriginal under those circumstances.
Through you, Mr. Chair, to the hon. member: using your circumstances, since I know about you, you are the parent, and in this act the definition of parent applies to adoptive parents.
G. Wilson: I really feel very reluctant to move off this point until we're absolutely clear on it. In a later section of this act, you don't even have to have the biological parent; you can have the aboriginal community come forward to take custody over that child. Maybe with respect to the laws of adoption, some litigation may have to take place, because I guess this act is going to be in conflict with that. In the instance where a relationship between a non-aboriginal.... It may be hypothetical in my discussion here, but I'm sure it isn't hypothetical in reality when a relationship has taken place between a non- aboriginal women and an aboriginal man and the culmination of that is a child. Whether or not that male has been involved in the custody of that child, if that child is under 12 years old according to this act, and that parent now comes forward and says, "I now wish to have that child deemed aboriginal," then all of the conditions of this act that apply to aboriginal children will apply. The non-aboriginal woman's right to that child will be seriously abridged by this act. There are many sections in which that is so. Is that not correct?
Hon. J. MacPhail: No, it certainly isn't, hon. member. However, we cannot deny the ancestry of our children. If a child has an aboriginal parent and wishes to declare that, then all we're saying in this act.... This act does not give any special rights beyond bringing everyone to the table to allow the courts to decide what is in the best interest of the child. That's all; that's what it says.
If we are trying to be as inclusive as we possibly can in recognition of the heritage and ancestry of children who wish to declare that ancestry and heritage, then we are saying that if the child has an aboriginal parent, the aboriginal community has a right to participate in deciding the best interests of that child, on the same footing as the non-aboriginal parent.
R. Neufeld: We also have some problems with the definition of aboriginal child. If either parent of a person up to 12 years old has aboriginal ancestry and is classed as aboriginal.... You can have interracial marriages, and they are very common in the community I come from. Let's say the father has gone away, and for some reason the child is taken away from the mother or the mother dies. That child may have been raised out of the aboriginal culture until nine or ten years old. All of a sudden, by this definition, they would be taken back. As it says further on in the bill, that child has to be put back into its cultural life. I'm having a little bit of a problem with that.
Hon. J. MacPhail: In fact, hon. member, you do outline cases where that kind of situation arises, and there are consequences to lack of recognition, from both parents, of a child's ancestry. This act is trying to say that where a child has aboriginal ancestry, when the future of the child is to be determined by the courts or the plan of care, the ancestry of the child has to be considered as one element of the plan of care for that child -- not as the overriding element, but as one element -- and that the community from which the parent comes finally has the right to have input into the planning for that child. I'll digress a little here, to say that that has been a major concern of first nations. Their children have been lost, literally, to the lack of planning. This is only to allow for recognition of that ancestry, for the first time ever, to be part of the planning for the child -- along with many other elements, as you see in the legislation.
R. Neufeld: I agree with the minister. I'm not trying to say that we shouldn't be doing that, because I think that is the right move for those children. They should not be taken off a reserve and placed in other cultural backgrounds. That's not what I'm saying. I'm saying that by this definition, up until the age of 12, a child who has never been involved in the aboriginal culture can be taken out of the culture they're in, no matter what it is -- out of the city of Dawson Creek or Fort St. John -- and placed into an aboriginal culture that they know nothing about. I can understand two years or three years, but when you get to be eight, nine or ten years old, if you've never been raised in an aboriginal culture, all of a sudden you could end up in that aboriginal culture. That's a real concern, because through the whole bill the minister states emphatically that the cultural identity of aboriginal children should be preserved -- should be. That's definite; it's later on in the bill.
Interjection.
R. Neufeld: Maybe the minister doesn't realize that there are differences in the north. I can tell you that there are; I've lived my whole life up there.
The second problem I have is that through the whole bill we tend to deal with two cultures: aboriginal and others. Everyone else is thrown into one pot. Somewhere in the legislation it should be said that if our children are to be placed in homes, those homes mirror the culture they came from. What about the Chinese, Japanese or Hindu communities? There are all kinds of them. We don't do anything with those. We just lump them all into one place and deal strictly with aboriginals. You deal with it right from the start to the finish, so there is a problem. How do we get around that problem? Is there some place in the bill I haven't read where that can be dealt with?
Hon. J. MacPhail: Your point is well taken. I refer you to section 4, which is what you have to take into consideration for determining the best interests of the child. In section 4(1)(e) a factor has to be "the child's cultural, racial, linguistic and religious heritage." Also, hon. member, in the guiding principles is the principle of kinship -- and your kin is your culture.
We could have discussed the issue of aboriginal ancestry in second reading. But it's an important discussion, so let's have it now. Thirty percent of the children who are removed from their homes in this province are aboriginal children, in a population base of about 4 to 5 percent of the full population base. That hasn't changed over the years. It is a concern that is raised by every aboriginal community we speak with, both at the first nations tables and, for instance, in my riding, which has the largest urban population of aboriginals in the province.
When we went around the province and came up with the report.... I know we're not allowed to use props, but....
[ Page 11699 ]
Interjection.
Hon. J. MacPhail: Of course you are; I know. The report is called "Liberating Our Children, Liberating Our Nations." We were asked over and over again: "Please, in legislation deal with the issue that our children are being taken away from us, and we are losing them." What this legislation does, and I think in a less intrusive way than others would have us do -- from the aboriginal community -- is that if either of the parents, or the child herself after the age of 12, wishes to give recognition to the child's aboriginal ancestry, then that request for recognition has to be one of the factors considered in the plan of care. We can no longer deny that ancestry if any of the family -- either of the two parents or the child herself after the age of 12 -- wishes to have that taken into consideration.
Let me just very clearly say to you again that when we come to determining the best interests of the child, under section 4 -- we're leaping ahead, hon. Chair, I know -- it says: "If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests." That's all.
V. Anderson: I think the word which is the problem here is "biological," because that gets you into difficulty with a whole variety of others. That's different from the word "legal." A person under 12 years of age who has a parent of aboriginal ancestry and considers himself or herself to be aboriginal would change the meaning of that considerably. There's a compelling factor here, and that is -- as we get to later in the act -- that you have forced a third party into the discussion. It would be like having the grandparents of both parties involved as part of the discussion; the grandparents must be notified, and they can come in. So you have a group outside the family structure who are now arguing, and whether they're arguing for the benefit of the child or for their own personal interests.... This is not against the aboriginal; it's just the principle of the case. I agree wholeheartedly with the general principle of what you're trying to do -- it's to make it an opportunity for the aboriginal. But there is a legal definition here.
[10:30]
I would propose an amendment -- if I can write it fast enough -- to Bill 46, section 1(c).
Interjection.
V. Anderson: You've got one written?
I would propose to amend section 1(c) as follows: to remove the word "biological" in that sentence. That leaves the other legal arguments there; it does not cloud the picture. When you leave in the word "biological," it overrides adoptive families; it overrides and brings in a community later on which is only going to compound the difficulty of reaching a solution. If two parents -- one who is aboriginal and one who isn't -- are trying to resolve whether this child will be raised as an aboriginal child and, by a later act, the aboriginal community is brought into the discussion, you overweigh the discussion against the non-aboriginal person. It's not a fair balance. But if you say "parent" without the word "biological," your intention is still there but the word "biological" is not clouding the issue. So I would like to move an amendment that the word "biological" be removed from that section.
The Chair: If the member would be good enough to present us with a copy of that amendment as quickly as possible, that would help matters. In the interim, I'm going to ask the minister to respond, if she wishes. Or perhaps the minister would like to see the amendment first? Whatever you prefer, minister.
On the amendment.
Hon. J. MacPhail: To remove the word "biological" from the definition clearly allows a wider scope than the speakers so far are pressing for. If that is not included, then many people who stand in the shoes of parents will have to be considered. They could be a common-law spouse or, to use an old-fashioned term, a boyfriend or a girlfriend; they could be a guardian who is assuming responsibility for that child and standing in the shoes of the parent who is responsible for the care.
Let me try a different approach to alleviate your concerns - - and I know you speak from the heart on this. We are dealing with a community here that has had their children systematically taken away from them. We are trying to say here that if an aboriginal child -- who has to be declared as aboriginal either by himself or herself, or by one of the parents -- comes under the auspices of this act in any way, that heritage has to be one of the considerations -- not to be given special weight or overriding weight, but just to be one of the considerations. This is not to override the adoptive parents, and it is not to override the best interests of the child, under any circumstances. The courts will determine what is in the best interests of the child, and take into consideration the point of a child who has been in a cultural environment that has nothing to do with the recognition of that aboriginal ancestry.
V. Anderson: But the court also takes into consideration the way the law is written, and oftentimes you will find the court saying it would do thus and so, except that the law says something else. The law dictates the way the court can interpret, so it's very important how the law takes that.
It's not fair -- as we will come to later in the act -- to have one community.... We can use the illustration of two separated aboriginal parents from different parts of the country -- from different aboriginal groups -- who may not wish their child to be brought into contact with the aboriginal group of the particular community in which this group of aboriginal people has to live. There are different nations of aboriginal people, so if you're dealing with aboriginal people.... Even as themselves, aboriginal in the broadest context is a generic description, like Caucasian. If you're talking about a particular nation of people.... We have hundreds of nations in British Columbia. Which aboriginal nation would you contact? How would you and that aboriginal parent or group resolve which aboriginal nations you would be in touch with? It will still be a problem, anyway, but you have compounded it with the word "biological," because a parent is a parent in a number of ways -- by adoption, by whatever. So I think the word "biological" compounds the situation as we get further into the act, and I move the amendment that it be stricken.
Hon. J. MacPhail: If the member would refer to the definition of aboriginal community, which is the next definition, he will see that while there are dozens of first nations, the minister, in consultation with the aboriginal first nations, will be designating what the first nations are, and that the child's aboriginal community will be the community from which the parent comes. We agree and have given recognition that it is not a generic definition, such as Caucasian.
I understand your concern, but it does fly in the face of the reality of what's happening to aboriginal children in British Columbia. Thirty percent of the children who come
[ Page 11700 ]
into care are aboriginal, and the reason they are going into homes that are.... And these are children who are declared aboriginal, not those who are undeclared. The reason why that's occurring and why they grow up separate and apart from their culture -- and why this entire report was written -- is that the courts have consistently not taken their heritage into consideration. Hon. member, I need to inform you that there have been situations where the adoption of aboriginal children has broken down, and those children have come into our care. What we're trying to do is look for the most open and accessible resources available to a child, to ensure the child's best interest.
V. Anderson: Referring, as the minister has, to the designated representative, that means an aboriginal community designated by the minister. If we're going to be consistent, it should be an aboriginal community designated by the parent, rather than by the minister. If someone is coming into care, the designation needs to be involved. You're going to get yourself into a quandary, where you could have two aboriginal people coming in who are from different nations, and the minister will be deciding the designation of an aboriginal couple from two different nations. A person is aboriginal but may be part of two different nations. Is the minister going to decide whether the designation should apply to one or the other? You're getting into a minefield here. I agree that those cases should not have occurred in the past. People have been ignored, and the rights of the family, and the children in particular, were ignored. But you don't overcome one wrong by perpetrating another injustice on the children of the future. The parents need to be free to make decisions in the future. You don't take away that decision from them, which is what this particular phrase is doing.
Hon. J. MacPhail: I want to make sure that this debate goes on as constructively as possible, so we must deal with the issues before us. The issue before us is an act that regulates how we deal with children and families who need access to the act. We are not inventing situations here; we are dealing with situations that have occurred over and over in the past. I am not going to determine the heritage of the child; that will be done by the first nations. However, we know that there are first nations that have legal recognition within our communities. There are also situations where it may be difficult to determine a child's ancestry. We are saying that the communities of the first nations will assist us in determining the child's heritage. In all cases, that will done by the parent declaring the heritage in the first nation from which the child comes. We're not making the problem worse. These solutions came from the aboriginal communities.
Amendment negatived.
J. Tyabji: Since we're talking about the definition of aboriginal child, I'd like the minister to note that there are a number of amendments. We've provided her with a copy of them. It would appear that we will have a very constructive debate throughout the course of this bill. I think the minister recognizes how important it is to all of us to have some of our concerns on the record. I should let her know that I don't expect there to be lengthy debate on each of the amendments, but they will be put into the record.
With regard to the term "aboriginal child," so far I've heard the minister say that the heritage of a child will be determined by first nations and not by the minister, and the definition of aboriginal child is to address that heritage. To be consistent with that, I think we have to be a bit more specific. In terms of how open-ended the definition is, the concern is under subsection (c) -- as I think the preceding member was pointing out -- about how we define an aboriginal child with regard to the biological parent.
To address the issue of heritage, I would like to amend subsection (c) so the definition of "aboriginal child" means a child "who is under 12 years of age and has a biological parent who (i) is of aboriginal ancestry, (ii) has been raised in aboriginal culture or an aboriginal community, and (iii) considers himself or herself to be aboriginal...."
In that amendment, it's important to note that when we're dealing with the parent, not only does that parent have to be a biological parent but there has to be some context in which that aboriginal status is achieved or practised on a daily basis. So when we have aboriginal members of the community at large, we don't have a biological determination that stands independent of their heritage. I'm sure the minister can recognize that there are more urban natives than aboriginal people who continue to uphold their traditions on aboriginal land. And for aboriginal people who do not live in an aboriginal community, their heritage would not be the heritage of an aboriginal community.
So I move this amendment, which I think the minister has a copy of.
G. Wilson: No, she doesn't.
J. Tyabji: If the minister doesn't have a copy, I can certainly provide her one forthwith. But that has been moved.
The Chair: I thank the member for sharing that amendment with us, which has the effect of adding another sub-subsection to section 1.
On the amendment.
Hon. J. MacPhail: I very much appreciate receiving the amendments in writing from the Alliance caucus. However, I've got several before me, so.... I just want to be clear. Your amendment is the one that changes "'aboriginal child' means a child..." and then goes (a), (b) and (c)? Okay.
The definitions of this are coming from section 35 of our Constitution Act. These things have been discussed over the years, and governments have reached agreement on definitions. Our definitions are consistent with that and with discussions in terms of other matters -- ongoing negotiations -- that are before the government.
[10:45]
With the greatest of respect, I say that the definition you have provided to us would be interpreted -- certainly in Vancouver -- as extremely restrictive, in that Vancouver wouldn't be identified as an aboriginal community but there are certainly many aboriginal children who live in Vancouver.
J. Tyabji: Could the minister clarify this, then? I think some of the other members addressed this. If a child has one parent who is an aboriginal person living in Vancouver and the other parent is non-aboriginal, and they are not living in an aboriginal community, how is it that being raised in an aboriginal community would be one of the primary considerations in that child's upbringing, when even the biological aboriginal parent had chosen to raise that child outside of the aboriginal community?
Hon. J. MacPhail: I'm pleased to be able to discuss this, because this applies to my constituents and my neighbours.
[ Page 11701 ]
Many aboriginal people live in Vancouver and maintain their aboriginal culture in the context of their neighbourhood. There are wonderful cultural institutions. I'm just saying that the way one can define a very clear aboriginal community, perhaps a band on a reserve, does not apply to Vancouver. Cultural ancestry is not something that is merely contained within your house or within geographical confines but is contained within your culture -- if you so wish to declare that ancestry. At the end of the day, there may be children whose parents do not wish to declare that ancestry, and therefore it will not be a factor in the consideration of their future planning. But where the parent or an older child wishes to declare that ancestry, it's a factor to be considered -- a factor among many that are listed.
J. Tyabji: The reason the amendment is proposed in that way -- the community in which the biological aboriginal parent has chosen to raise the child -- is that if it turns out that the biological aboriginal parent has chosen to raise the child in what would not be designated by the minister to be an aboriginal community, I would imagine that what would take precedence is the aboriginal parent's choice of how to raise the aboriginal parent's child -- since the minister has said that the heritage of a child will be determined by first nations. As the minister has said, an aboriginal community could be within a home or within a neighbourhood. As the act reads right now, it will be the minister who determines the aboriginal community. Since the minister determines that, the minister would be the one who decides that the child is being raised in a neighbourhood that constitutes an aboriginal community.
Since the minister would be the one making that determination, I think it's very important that the wishes of the biological parent.... And if that biological parent has chosen to raise his or her child in an aboriginal culture, then obviously that has to be taken into account. But if that aboriginal parent has chosen not to raise the child in an aboriginal culture, then that should also be taken into account, with precedence over the wishes of the first nations. That's why that amendment is being proposed.
Hon. J. MacPhail: Again, we must focus on the fact that we are dealing under this act with children who need assistance, who may be in an abusive situation and who may need care. Indeed, we are talking about situations where the courts will be considering the future of a child, where one parent, perhaps the non- aboriginal parent, is the abusive parent. This act is saying that when we're determining the best interests of the child, let's consider every factor that's in the best interests of the child.
If somehow the member has some concerns about there all of a sudden being a huge manufacturing of aboriginal communities or about members of the aboriginal community coming forward and asserting some rights greater than all of the other factors listed in the act, I can assure her that after prolonged discussions with the aboriginal community and former children in care who are aboriginal, that is not the intent. Indeed, it is not the wish of anyone who participated in the drafting of this act. All we are saying, for all aboriginal children, is that we will do away with the past practice of completely ignoring that ancestry where part of the family, or the child herself, wishes to have that as a factor. We will now take it into consideration in a situation where a child is in need of help -- not asserting any greater right than a right to a life free of abuse.
J. Tyabji: A brief question to the minister, and then I'll address some of the points she raised: could she direct us to the specific part of the Constitution Act that she was referring to when she said that this definition was from there? We couldn't find it last night, and we've checked again and can't find it this morning.
Hon. J. MacPhail: The reference of your definition is to the Indian Act. Section 35 of the Constitution Act allows for a broader definition of aboriginal communities than the Indian Act and allows for the inclusion of aboriginal cultures such as Metis, Inuit, etc.
J. Tyabji: Actually, I didn't refer to the Indian Act so much as I copied it from a bill that refers to the Indian Act. Thank you for the point of clarification.
I missed the first few minutes, but did the minister introduce the staff who are with her today? If not, could we hear who they are, please?
Hon. J. MacPhail: Oh yes. This is the second time that I've been caught being rude. I didn't do it in estimates, either. I assume it's because I'm a rookie minister. My apologies.
This is Jerry McHale, legislative counsel with the Attorney General; Bernd Walter, assistant deputy minister of family and children's services; Jeremy Berland, whose new title is director responsible for family and children's services but who headed up the legislation review team for the past two years; and Claire Reilly, legislative counsel with the Attorney General.
J. Tyabji: The minister is referring to the considerations that are taken into account with regard to the placement of a child. She said that that is the reason we've introduced the aboriginal concept so thoroughly throughout the bill. Later on in the bill we'll be getting to section 4(1)(e): "...the child's cultural, racial, linguistic and religious heritage...." To me, that seems to cover it all. That seems to me to be a non-racially specific way of addressing exactly what the minister wants to address.
There's a concern with the definition of aboriginal child. If the minister wants to say that in recognizing our abhorrent past practices in dealing with aboriginal children for the purpose of making some redress, we recognize that where the aboriginal culture is being taught, that aboriginal culture should be preserved, then I could understand that that would be done. That would be done more specifically if this definition were amended. If the definition is not amended, it will allow for aboriginal children, as defined by this act....
I note that we don't have a formula for a biological parent or for ancestry. We could get into the situation in South Africa of one-sixteenth, one-eighth, one-quarter, or whatever it is.... If we're talking in a generic sense about the need to have the culture preserved, it is actually covered under section 4. If the minister wants to be more specific, she could make this definition a bit more specific to allay the fears of those of us who are concerned that the wishes of the aboriginal parent not take precedence over the designation by the minister of an aboriginal community and then that input into the determination of the child.
Hon. J. MacPhail: Hon. Chair, I assume you're going to allow us leeway to refer to sections that we haven't dealt with. We are now referring to section 4, but I assume we can all debate this with leeway.
[ Page 11702 ]
The Chair: Minister, if I may clarify, the amendments have been accepted largely on the basis.... It is attested that they have implications in later sections of the bill, and thus we have accepted amendments to definitions that otherwise might be in question. It seems appropriate. Yes, answers and questions can refer to subsequent sections.
Hon. J. MacPhail: Nothing in my experience to date in dealing with very serious concerns about the apprehension of aboriginal children way out of proportion to their numbers in society.... Never has there been a time when anyone has said to me that the ancestry of the child should take precedence over everything else. The legislation redresses an absolute, complete, unfettered, historic absence of that consideration by the courts. I have absolutely full confidence in giving the members of this House the assurance that what we are doing in redressing the historical wrong is now saying that the ancestry of a child, as pointed out in section 4, is a factor for consideration.
[M. Farnworth in the chair.]
G. Wilson: I hear what the minister is saying. We have certain sympathies because of a historical trend of removing aboriginal children from their community -- a trend which I think needs to be addressed.
But that's not what our concern is. Here in a nutshell is what we are concerned with, and why we think the amendment should stand. Notwithstanding the federal Constitution Act, which is referred to and is indeed very broad. It says: "In this Act, 'aboriginal peoples of Canada' includes the Indian, Inuit and Metis peoples of Canada." That's about as broad as you can get. This government has just entered into an agreement with the Nisga'a which allows the Nisga'a to determine citizenship under an agreement that will provide certain rights, privileges and levels of jurisdiction to those people which are exclusive of non-Nisga'a.
There are currently land claims under negotiation in this province with virtually every first nations group that is ready to do so. If those land claims provide for governance over the land, they are going to provide governance to people who are deemed to have membership in those communities. How that membership is determined is up for negotiation.
It is quite evident that there has been a very strong movement by some first nations people in particular to get first nations youth back into the areas that will be under their jurisdiction. But the historic reality of the situation is that there are many youths who will be defined as aboriginal under this act who have never had any connection whatsoever with an aboriginal community. They are aboriginal only by virtue that the biological father -- and in virtually every instance I refer to, I refer to the father -- is aboriginal, and the cultural evolution of that community has absolutely no relevance to their lives.
What we're getting concerned about here is that if you set up jurisdictions that are determined exclusively by racial origin, as this government does -- which I am staunchly opposed to, but that's another debate -- and then put in place a social act that allows apprehension by a community that has exclusivity over children who have no relation to that community save and except a biological connection, we are creating a racial classification of people in this country with certain rights, special privileges and jurisdictions that will cause all kinds of problems, because there are a lot of children who will be affected by this. This minister has to recognize that.
[11:00]
That is why we are saying our amendment should stand, because it doesn't preclude what the minister is trying to accomplish with respect to having an ancestry component in the discussion. But it does recognize that culture, in large measure, is learned. Race is something that is determined genetically by DNA, but you learn culture. A person who may have a biological connection to an aboriginal community may not necessarily have any other relationship to that community, save and except that biological connection. That should not be enough for the state to sanction intervention to remove a child and return that child to a community to which they have absolutely no connection, save and except the biological connection. There is a real tendency to want to do that in light of the fact that we're setting up citizenship agreements with first nations people in order to provide a list of people who will have special rights, privileges and jurisdictions in British Columbia by virtue of first nations agreements at the treaty negotiations table. That's our concern.
Hon. J. MacPhail: I certainly appreciate the member's offer not to engage in a debate that isn't appropriate here around the issue of citizenship and other agreements, and I agree that we shouldn't confuse the two issues.
The issue before us is that we are saying that for children who are in need of care and support, we are giving the courts the obligation -- not the choice, but the obligation -- to consider a child's ancestry. I'm sure the situation the hon. member outlines can be fully explained to the court, and when the court has given consideration to that, it will place the proper weight on that relationship.
J. Tyabji: I would like to echo the comments of the member for Powell River-Sunshine Coast. Although we cannot get into other debates, I think we recognize that the government is, by choice, putting a racial designation on a class of people. So that it would not be stated that I misled the House in my intentions, I should declare for the record that I do have a personal interest in this section with regard to my son. He does not have any cultural connection, but he would qualify. With the definition of care -- children in need of care and protection -- that we will get to later on, we will see that the definition is so loosely construed that there could be a significant concern for intervention in this area. I wanted to put that on the record, so that it doesn't look like I'm misleading the House on this issue. I would urge the minister to look at that section in that context.
Amendment negatived on division.
G. Wilson: I wonder if the minister might give us a little more explanation of what is meant by this "family conference coordinator." Is that somebody in addition to the director? Is that somebody who has special training? Is it somebody who is within the ministry? Or is it somebody who might be a community leader? Particularly in light of the fact that we were unable to amend the definition, this, I think, needs to be expanded. Right now it's pretty ambiguous. It just says anybody that the director designates, but presumably there must be some qualifications and credentials. It has to be somebody of standing in the community, I would think.
Hon. J. MacPhail: It is important that the family conference coordinator be external to the ministry, neutral and qualified.
[ Page 11703 ]
J. Tyabji: On the same lines as the amendment proposed for aboriginal child, I'd like to propose an amendment for aboriginal. The same arguments will apply on this. I think we need to recognize that the way it is written right now, the aboriginal community means an aboriginal community designated by the minister. That may be by regulation; it may be on the minister's advice in writing. That's not clear. There is no definition for aboriginal in here. All we have is a definition for "aboriginal child" and "aboriginal community."
I think it's very important to know who is defined as an aboriginal in this act. So I have an amendment to add to the definition, to say that "'aboriginal' means a person of ancestry indigenous to the province of British Columbia or the country of Canada and, for the purposes of this act, is someone residing in an aboriginal community." I move that amendment with the same argument so we don't prolong debate, and welcome the minister's feedback.
On the amendment.
Hon. J. MacPhail: Hon. Chair, I will reply, again, by saying that, historically, thousands of aboriginal children were removed from their aboriginal community, through apprehension and in some cases through adoption. But let's just deal with the kids in care who have been removed from their community and do not reside at the current time in an aboriginal community -- however the hon. member may define that.
Child development research indicates that knowledge of and access to your cultural ancestry is important. All we're trying to do here is make it possible for the issue of contact with and access to that cultural, ancestral identity to be considered when the important decision of the future of the child is being made. Our definition does that.
J. Tyabji: I have a quick question to the minister. Could she tell us why there is no definition of aboriginal in the act and what we should rely on in the absence of a definition in the act?
Hon. J. MacPhail: We are taking that very seriously in trying to ensure that we meet the needs of the members of the House. We have defined aboriginal child. I am not sure of the intent of going for a definition beyond aboriginal child. We must caution ourselves against defining in such a way that we exclude aboriginals. The courts are well capable of doing this in terms of some nation or some aboriginal community being missed. We have defined aboriginal child for the purposes of the final determination by the courts.
G. Wilson: I take very strong objection to this, because I think the minister is absolutely wrong. In fact, the greater danger of exclusion occurs by virtue of the introduction of definitions that define, segregate and separate aboriginal people from any other British Columbian. It talks about cultural ancestry. That is a bogus definition, because cultural ancestry has nothing whatsoever to do with this legislation. What this legislation talks about is biological parents. We're talking about DNA and race, not about cultural ancestry. We can't look at this in isolation from an agreement such as the one just signed with the Nisga'a, which does include adopted children. That's what this government is signing in the back rooms, not out where people can understand it or see it. So I take strong objection to that lack of inclusion.
An aboriginal person is defined in many different ways in different federal statutes. Under the Indian Act it can be defined differently. Under the Canadian Constitution Act it's defined differently; there's a much broader and wider definition. Given that such a large percentage of children of aboriginal biological origin that need custodial care are often in urban areas where they are not directly connected to any first nations group of landed people, we have to be very careful that we do not abrogate the rights of a parent -- non-aboriginal or aboriginal -- in allowing the state the power to intervene on behalf of an application from a community that deems to have control or authority over that child. We already know that's going on. There is a very strong movement by some first nations groups to "repatriate" their children.
The way that you get away from exclusion is to stop categorizing aboriginal people as separate from every other British Columbian and recognize that every child in British Columbia is equal to every other child under this law and under any other statute, and should not have special definition with rights and privileges given to a collective that will abrogate the right of that individual child. That can clearly happen under this act.
We would urge that the amendment pass, because it's something we feel very strongly about and that I think is going to create a lot concern out there in the community. In fact, it already has created a lot of concern in the community.
Amendment negatived on division.
H. De Jong: I have listened very intently to this debate this morning. In our own community we have several families that are and have been very good foster homes and have taken care of children that need care. I have difficulty understanding what the minister really means by an aboriginal community. I know that the minister has stated that the court would probably look at it as a first choice for an aboriginal child, and perhaps it is well intended. At the same time, when a child needs love and care, that should be one of the first and foremost concerns.
If families within a community that may not be considered an aboriginal community but have proven over many years that they have given good care to children wish to take on children -- whether they are from the aboriginal, Caucasian or other communities.... I find it absolutely ridiculous for the minister to zero in on the words "aboriginal community" in this bill. I am sure the minister would look at homes where real love, care and concern have been established over the years. If those families would like to have a child, have applied for a child, and are open and receptive to having a child, why is the choice made for aboriginal homes, rather than for those homes that are known for having been good homes for children of all kinds? I have great difficulty with this section, because I do not believe that it speaks to the real needs of children, including aboriginal children.
Hon. J. MacPhail: I appreciate the member's thoughtful recognition of the foster parent system in British Columbia, which is, in almost all cases, exemplary. There is no question that in almost all cases the foster parents of British Columbia provide loving, nurturing homes for children.
[11:15]
The issue here is not that there are homes waiting for foster children. There are many children in need of good, loving foster homes, so we will use all the services available that foster parents can provide to us. What we are saying here is that we will now make the aboriginal community homes available for aboriginal children as foster parents. In other words, aboriginal families will be joining the foster parent group that you so appropriately recommend.
[ Page 11704 ]
From history, we also know that aboriginal children who are removed from their community and placed in homes that are not of their community, as teens, run away and go back to their community. This is statistically proven. The act is now giving full recognition to the services currently provided by the foster parents in the system, but is saying that the act will now consider that the best interests of the child is to keep the child in his or her community. If the child is an aboriginal, that may mean that the court should consider the aboriginal community. There is a much better chance of success in ensuring the stability of the child and the consistency of care if the child, from birth, is in an environment that's compatible with her culture and upbringing. That's all we're saying here.
J. Tyabji: I have a question on the definition of parent, before looking at another amendment. Under (c) it says: "...a person to whom custody of a child has been granted by a court of competent jurisdiction...." I am just wondering why it says "competent jurisdiction" rather than "a court of law" or "by a court." Would that include an aboriginal jurisdiction after negotiation in the first nations Treaty Commission process?
Hon. J. MacPhail: The "court of competent jurisdiction" refers to the fact that you actually have to make sure that the custody of the child has been determined by a legally recognized justice system. It's our responsibility to ensure that judicial law has applied. If, by some other act, a system of justice is set up within the confines of Canada, other than our court system, and is given full recognition, it would be considered by this act. But that recognition of a judicial system would not arise out of this act.
J. Tyabji: This is the second part of the question under that same section. It says "by a court of competent jurisdiction" -- because, as the minister says, it needs to be recognized by a judicial system -- "or by an agreement," which is not something that has any real legal weight, other than the weight given by the bill. It doesn't define what an agreement is or what it is limited to. Is it an agreement that two people make at the corner store, or is it an agreement that is understood by one party and not by the other? Could the minister give us an idea as to why she felt it should say "by a court of competent jurisdiction," which has legal weight, or "by an agreement," which is not even specified?
Hon. J. MacPhail: That section refers to an agreement between parents. Not all custody arrangements are made by the courts; many parents make agreements between themselves about custody. That's what it's about.
J. Tyabji: I find it interesting. This is under the definition of parent. So for the purposes of this act, basically you could read it to say that "'parent' means (c) a person to whom custody of a child has been granted by an agreement." It doesn't say by an agreement of the biological mother or father, or even by an agreement between the person who has legal custody and another party. That's a big concern because it's not specific. The minister could perhaps address what the intent of the agreement is and whether it's going to be an agreement with someone who has a legal right to make that agreement, or at least is the parent making that agreement. Then I have some questions with regard to the Nisga'a agreement.
Hon. J. MacPhail: A couple of things. One is that this act -- and I give absolutely full credit to those who are with me today -- is a modernization of some of the definitions that currently exist in the act, to update it. I will just take a minute here to give credit to all who are with me today for making it a plain-language and easily read act.
The agreement that you refer to again -- we're not reinventing the wheel here -- can only be between the guardians of the child. It cannot be....
Interjection.
Hon. J. MacPhail: I'm sorry, hon. member, I can't hear you. Not to be critical; I just can't. It will be between the guardians of the child.
I also want to make clear that in many cases we actually are faced with situations where people stand in the shoes of a parent, are actually in the child's life in that role, but are abusive. We have to take into consideration all of those situations.
G. Wilson: I have a couple of questions, then. I recognize what the minister is saying; sometimes people stand in the shoes of a parent. There's no question what this act is attempting to do. We're all in the business of trying to make it work as a better arrangement for children in need of care or protection.
The question I have really is a logistical and procedural one. Under (c), it says "a person to whom custody of a child has been granted...." I'm assuming that this would exclude the state from being that custodial parent, because it says "a person." So this cannot be an agreement made between the ministry, the minister or ministerial staff -- i.e., the state -- and, say, a first nations group or a community representative from that group in discussion with respect to a child. I assume that's correct.
If that is correct, then I wonder why this would not fall under the guardianship act and why you would not have actually made reference to the guardianship act, with respect to that individual and custody of children. Certain legal obligations under that act would probably apply here.
J. Tyabji: Or should.
G. Wilson: Or should.
Hon. J. MacPhail: We're not quite sure what act the hon. member is referring to, so we'll need clarification on that. In the best interests of the child, we want to ensure that we don't unnecessarily legally restrict the definition of who is responsible for a child so as to not reflect reality. Again, that is to reflect the reality that a lot of people may stand in the shoes of a parent, etc. Perhaps you could say what act you are making reference to.
J. Tyabji: While some research is being done, I would like to move two amendments at the same time. They are directly relevant to the definition of parent.
The first amendment is to change the definition of parent so that parent means: (a) the mother of the child; (b) the father of the child; or (c) the guardian, but does not include a caregiver. Concurrently I move to add the definition of guardian, to say that: "'guardian' means the person lawfully charged with the legal right, duty and responsibility to care for a child or person, and may include those rights to care for the child or person's property."
[ Page 11705 ]
The Chair: Hon. member, the Chair has been handed two amendments and is wondering which of the two.... If you could clarify for the Chair, it would make things easier.
J. Tyabji: Because they are both linked and because I have a number of other amendments, I was hoping we could speak to both of them at the same time, with leave of the House.
The Chair: That we can do.
On the amendments.
J. Tyabji: The reason to introduce a definition of guardian is that we already have legislation covering the accountability and responsibilities of a guardian. The way the bill is written, we can't separate parent and guardian without trying to amend the rest of the bill so that we refer to either a parent or a guardian.
I should state for the record that we have some difficulty with the definition of parent being so wide. As it currently stands, "parent" can be interpreted to be the state. I don't believe that too many people will feel comfortable with the definition of parent being the state. The state would actually be a guardian, not a parent. There's a very different relationship there in terms of what people would normally think a parent's duties, obligations and responsibilities would be, especially in the sections about the best interests of the child, and we see that the word "parent" is throughout that definition, and that that can include the state..
The way this bill has been written, with "parent" throughout.... We do have a lot of problems with subsection (c) because parent is allowed to be someone to whom "custody of a child has been granted by...an agreement" -- any agreement. It doesn't state between whom or any terms of the agreement. To that extent, we want to have on the record that we believe there should be a separate definition for guardian, and that that should identify the people other than the actual mother or father who are the parent for the purposes of this act.
Hon. J. MacPhail: With leave, I will speak to both as well.
The definition of the parent.... Let me just indulge for a minute. It has been a real eye-opener to me to understand the confusion about who is actually responsible for them that is faced by so many children who come into our care. Families who get confused, and children who are abandoned or have several adults come into their lives and into their home, face really quite disturbing situations. We are attempting here to capture, in quite a broad definition, all of those who could come into a child's life and stand in the shoes of a parent, whether that be for a week, for six weeks or for years, but who would not come under the definition as you list it here.
Interjection.
Hon. J. MacPhail: No. And I appreciate.... The hon. member is saying it could be the legal guardian. But in reality, they're not. In reality, many children live in some pretty confusing states in their home. What we're trying to do, in the best interests of the child, is make sure that a child lives in an abuse-free environment. Therefore we have to ensure that the definition is as broad as it possibly can be.
[11:30]
Let me give you reassurance about your legitimate concern that the state is somehow being given extra authority here. We have defined guardianship to limit it to the rights of the parent, so we take care of it in that situation. But a guardian has never been interpreted as you would have it interpreted, so we feel confident that there is not some body of law out there that needs to be changed by changing the definition here.
J. Tyabji: If the intent of the definition was to include under the definition of parent any individual who is providing care to the child along the same lines as the care provided to the child by the mother or father, why wouldn't that have been written into the definition? That's not what is here. We are actually dealing with either a legal agreement in a court or an agreement between unidentified parties. We see that under subsection (d). We have a person with whom a child resides and who stands in the place of the child's parent. In that respect, parent is a circular definition because it is within the definition of parent, which is unfortunate. I think it is meant to say "in place of the child's mother or father." That seems to cover what the minister was addressing. What we are trying to do is get rid of the openendedness of subsection (c).
Hon. J. MacPhail: I take the member's advice. I don't know how we do this. I'll try.
The proposal that we are considering to take care of your concerns -- if the hon. members will refer to the end, where it says "but does not include a caregiver" -- is adding "or a director" -- and director is defined. That would take care of the concerns about the state having a special role.
G. Wilson: Hon. Chair, I don't know if you have accepted that. There's already an amendment on the floor, so in the words of the minister: "You work it out and let us know what's going to happen."
The Chair: Apart from withdrawing the amendment, the correct procedures would be for us to vote on the amendment, defeat the amendment, and then pick up later on when everybody is happy.
G. Wilson: I have one more question on the original amendment. If by some unexpected event this one is defeated, we would be happy to accept the amendment the minister is making.
J. Tyabji: As if we get a choice.
G. Wilson: Yes, as if we have a choice.
I'd like the minister to tell us.... This is where I was coming from. Maybe I can be more specific. Under this definition section, "'parent' means...(c) a person to whom custody of a child has been granted by a court of competent jurisdiction...." How does that interact with section 7 of the Public Guardian and Trustee Act, where a court also grants trusteeship to a young person? Under section 7 of the Public Guardian and Trustee Act, the duties are very specific not only with respect to the right of the child but with respect to the properties associated with the child, which must have equal consideration -- not that we're dealing with people who may have amassed large amounts of property. Nevertheless, the rights of a child must be protected. I'm curious to know why, under this definition, there would not have been reference to a public guardian or trustee, as defined under the Public Guardian and Trustee Act. That would seem to me to greatly strengthen that definition.
Hon. J. MacPhail: The point is well taken and is addressed later on in the act. The public trustee does become the guardian for the property a child has.
[ Page 11706 ]
The Chair: We'll deal with the two amendments seriatim. The first one we'll deal with is changing the definition of parent.
Amendment negatived on division.
The Chair: The next amendment deals with the definition of guardian.
Amendment negatived on division.
Hon. J. MacPhail: If I'm permitted, I'll propose an amendment to the definition of parent under section 1. At the conclusion, where it says "...but does not include a caregiver," add the words "or a director."
On the amendment.
G. Wilson: We see this as an important amendment, and we're happy to support it.
Amendment approved.
On section 1 as amended.
J. Tyabji: Although this is called the Child, Family and Community Service Act, there is no definition of community. The only time we see any definition that has the word "community" in it is when we see "aboriginal community," which is one designated by the minister -- and we don't know if that's by regulation.
With the indulgence of the House and with leave, I have two amendments that I would like to introduce. Perhaps I'll introduce one first and speak to it. I'll wait for the direction of the Chair on this.
I have a definition for community and a definition for aboriginal community that would allow a bit more specific.... The definition for community, which would be community as defined for the purposes of this act, would be that "'community' means a body of people living in one region or district and sharing common interests." The reason it's important to have a definition of community on record is that, as we said in second reading, a lot of discretion would be exercised in the absence of one.
I know that even without leave, I can speak to the other amendment that I would propose to move and wait for the direction of the Chair. The other definition that I propose to move would be that "'aboriginal community' means a body of aboriginal people living in one region or district, with a common aboriginal history, and sharing common interests."
The reason the definitions are set up this way is that we recognize, depending on where we draw the circle, that all of us are part of a community or a number of communities. When we have a definition of aboriginal community for the bill, the only difference between an aboriginal community and the community at large is that the circle is smaller and they have a common aboriginal history. We'd like to have both definitions in there so that aboriginal people feel part of the larger community, and so that when we draw the circle smaller they recognize that their common history is something we value, and that we recognize it is of value and is of value in the placement of a child in need.
I welcome the minister's comments on the definition of community.
The Chair: Just before I recognize the minister, the way the Chair is proposing that we do this -- with the will of the House and if it's fine with everybody -- is to discuss both of them at the same time and then vote on them separately.
On the amendments.
Hon. J. MacPhail: I have a few points on this, just for clarification. Community is actually referred to in the principles of the legislation, which we will get to, and under duties of the director as well. Let me just try to explain what is intended by integrating "the community" into this bill.
At the beginning, let me reassure the members that no legal consequences flow from the definition of community. It's not a legal concept which holds some weight before the courts or whatever, but is a principle contained in the bill. The community isn't necessarily -- but could be -- a physical geographical definition. I know we have to be careful not to limit the definition to that, because to do that would exclude other communities of interest.
I'll give you an example. I recently met with the Somali community, who live quite dispersedly throughout the lower mainland and in fact throughout the province. To define in a way that would limit it to a geographic definition would exclude that aspect of the community.
We know that the community has a significant role in developing plans to protect children and keep them safe. Our service delivery principles recognize that the community should be involved in the planning and delivery of services, that so often -- and I know the hon. member for Peace River North probably would join with me in this -- the community has to be involved in service delivery for children, and that to not have community involvement is probably to not meet the best needs of the children in that community. However, that's the service delivery aspect of the community. Later on, we also understand that the community plays a significant role in identifying children who may require protection. We want to ensure that community responsibility is upheld there.
So it is a concept from which no legal consequences flow but is an important principle to be held throughout the bill.
J. Tyabji: I recognize that the minister is saying the word "community" is not something that has legal weight. We did take the definition from a legal dictionary. But for the purposes of this bill, there needs to be some guidelines, particularly as the minister referred to section 3, which says "the community should be involved." The only reference we have to who will deem what a community is, is under aboriginal community, which will be designated by the minister. That is interesting, because it doesn't say what the guiding principles will be for the minister to designate an aboriginal community, or whether those will be by regulation. If they are by regulation, to what extent is the aboriginal community designating itself, with the minister's blessing or signature on that designation, and to what extent does the community at large have a chance to participate in that designation?
Throughout this bill, we recognize that children's lives will be affected, based on these definitions. If we are not going to be specific in the definitions, which will justify the removal of children from their families.... The minister says that later on it is recognized that the community has a role to play in determining when a child is in need and needs to be removed, but we see that the only community specifically listed is an aboriginal community.
In debate today, the minister has said that the heritage of a child will be determined by the first nations. We couldn't introduce the idea of culture into the definition of what an aboriginal child is, so we know that it's a biological definition. The community will be determining when a child is in need. There seems to be a very dangerous opportunity
[ Page 11707 ]
here for misinterpretation of the bill, in the absence of a definition of community or at least a guiding definition of aboriginal community, that could allow for some decisions being made on when to remove a child that are not consistent with the original intent of the act, as outlined by the minister in second reading.
Hon. J. MacPhail: The aboriginal communities list will be defined by regulation. It is not as if we will be starting from square one on that. There will not be a dispute around the definition of those aboriginal communities, even through regulation.
[11:45]
I also want to talk for a very few minutes about what was recommended to us -- not by a single voice but by an absolutely broad voice of consensus -- about the need for community involvement in all aspects of service delivery in the protection of children. To define community in the way that's put forward is to exclude. There is no question about it. To attempt to define it in any narrower sense than what is contained in the act is to suggest that certain aspects of certain communities could not be involved. We just don't want to do that. It's not the way that the bill has been asked for by a range of resources and people within British Columbia.
G. Wilson: I'm picking up on the logic of the minister, which is sound from that point of view. If that were the case, then we would argue: take out the definitions of aboriginal community and aboriginal child and simply treat all children equally and all communities equally. If the government did that, then there would be no exclusivity in this bill. In fact, there would be commonality among all people; everybody would be treated equally -- no special rights, privileges or status. If that's the case, we'd be happy to do it. But the bill doesn't do that. The bill does make distinctions. By its drafting, the bill is exclusionary in some instances.
All we are arguing, especially when you get into the later sections of the bill with respect to the rights that are conferred upon a community in terms of this action.... We are not arguing that the community should not be involved. As a matter of fact, in my second reading statements I said that the community has to take a greater responsibility for all children, and that's what should be done. All we're arguing is that if you're going to make definitions in one instance, you have to make definitions that are applied in a consistent and equal way. Let's not forget that there is a very large component of individuals out there who have a common interest that could be broadly defined in a linguistic or cultural group, particularly immigrant populations who have come into this country, are living together, and whose children have needs. If this act were the law, those should be treated in exactly the same way, with exactly the same consistent application as people who are in first nations groups or people who are born Canadian who now seem to be in this kind of amorphous, undefined group. I don't know what culture you'd give them, because everybody else seems to be defined linguistically by virtue of their ethnic or racial origin. Somebody like myself who's a born Canadian, I guess is.... I don't know what I am.
Hon. J. MacPhail: We have canvassed these issues, and I don't have anything further to say.
C. Tanner: I have a further clarification on this point. By having a definition of aboriginal community, does the minister preclude making other designations? For example, can she make religious designations, cultural designations or designations about living together? There are other groups that live in communities. Does having only the aboriginal community defined preclude the minister from making definitions on others?
Hon. J. MacPhail: I think the intent of the hon. member's question is to ask if we are precluding by defining only the aboriginal community. No, because the definition of aboriginal community is there for reference only, for notification in order to participate where an aboriginal child is involved. It's merely an invitation to participate; it does not preclude invitations to other community interests. That's not the intent at all.
C. Tanner: That isn't clear to me, and it isn't clear, I think, to the members who've been speaking previously. Because you make a specific case of aboriginal community, it appears as if you're precluding the minister from making designations of other communities.
Hon. J. MacPhail: Let's see if I can make this clear. "Aboriginal community" is contained in there for the purposes of notification to a particular community. The hon. member for Vancouver-Langara rightly pointed out that there are many aboriginal nations, so it's only so that we don't notify 100 aboriginal communities when we should only notify one. It's only for notice, to understand that they have a right to come forward and participate in the planning for a child from their community. The designation of community can take on as broad a definition as we want when we're talking about service delivery principles, and we'll see that later on in the act.
The Chair: On the amendments, we will deal with them seriatim again. The first one we'll deal with is a definition of aboriginal community.
Amendment negatived on division.
The Chair: The next amendment is a definition of community.
Amendment negatived on division.
J. Tyabji: I'm seriously trying to get through these as quickly as possible. I'm sure the minister recognizes that we cannot deal with the rest of the bill unless we do a thorough job on the definitions. That's critical.
There are three words that aren't defined in the defini- tions section. Again, with the indulgence of the Chair, perhaps they can be discussed together and voted on separately. The bill throughout refers to harm, neglect and abuse as the grounds by which a child may be removed from a family. We have a great deal of trouble with this in the absence of definitions. We will be introducing a number of case studies, instances where, because loosely defined terms of this nature have been left in bills, discretion has been used, and children have been removed and families have been traumatized unnecessarily. As I said, when we reach the sections of the bill that deal specifically with those undefined words, we will be introducing case studies.
In this section I would like to introduce three words for definition, the first being a definition of harm. All of these definitions have been taken from legal dictionaries, so they are recognized terms for the purposes of the law. "Harm" is "the detrimental result to a person of an action; or an injury or loss to a person or child caused by any act by a person or agency."
[ Page 11708 ]
The second word to be proposed for amendment is "neglect," which is the "absence of care or attention which may result in harm and may be subject to criminal prosecution, and may mean a refusal, indifference or unwillingness to perform a responsibility or duty."
The third word is a definition of "abuse" as "any form of cruelty to a person or child's emotional or physical well-being which may be subject to criminal prosecution."
It's important to introduce these three definitions in this section, because they do become so important in providing the parameters by which a director or a delegate of the director not only will gain access to a child but may remove a child from a home. The minister will notice, I'm sure, that the words "may be subject to criminal prosecution" have been introduced as a term of reference. It doesn't necessarily have to be an action of that extent. But I think it's important for us to recognize that when there are words in the bill such as "harm" or "annoy," which are not defined, it leaves such a wide range of discretion. Some would argue that if there is an error to be made, it should be made in favour of the state, because that's in the best interests of the child.
We will be introducing specific cases later in the debate, showing that when there has been unnecessary intervention, that has been not only not in the best interests of the child but very damaging to the families. Although I don't hold any hope that the minister will adopt those definitions, it is the position of the Alliance that it is very important to be specific on those terms, in the definitions section of the bill, for purposes of the powers and responsibilities of the director as outlined later, which are great. Those powers are almost absolute in terms of intervention in the lives of families.
The Chair: We have three amendments here dealing with neglect, harm and abuse. We will discuss them all together, and then vote on them separately -- just so the House is aware.
On the amendments.
Hon. J. MacPhail: Section 13 is one of the sections that I am actually very committed to and pleased about in terms of how we are approaching the definition of abuse, harm and neglect. Let me give some background to that section, and I hope I can meet some of the member's concerns.
This section is one that has been established in other jurisdictions across Canada that have modernized their legislation. I think I said in second reading that we are, in British Columbia, really at the tail end of modernizing our family and child welfare legislation. It is a definition that has been welcomed, not only in other jurisdictions but also by the community, our community panel, the professionals and legal experts who have given us counsel in this area. It is a definition that clearly links the words to specific circum- stances -- it actually has to be harm, abuse or neglect by the parent or caregiver. It is not a situation where.... I know some of our concerns from members of the Reform caucus are rightly expressed when they say: "Look, are you just making us all subject to a reign of terror as parents around here? If a child doesn't get to go to a soccer game, is that going to be defined as neglect?" No. Our definition is very clear and has to be proven through specific circumstances.
I'm advised -- and in my experience to date, I accept -- that the plain definitions of harm, neglect and abuse are plenty for the courts to deal with, and that they are clear, understandable and have full meaning. What we need to do is put the issue of what is in the best interests of the child in the context of what we do when those situations of harm by a parent or caregiver occur, and that's in section 13.
J. Tyabji: I would like to canvass this, and then there is one further amendment. Then we will defer to whatever other questions there are on definitions. But seeing the time, I move the committee rise, report progress and ask leave to sit again.
Motion approved.
The House resumed; the Speaker in the chair.
The committee, having reported progress, was granted leave to sit again.
Committee of Supply A, having reported progress, was granted leave to sit again.
Hon. J. MacPhail moved adjournment of the House.
Motion approved.
The House adjourned at 11:58 a.m.
The House in Committee of Supply A; G. Brewin in the chair.
The committee met at 10:11 a.m.
ESTIMATES: MINISTRY OF EDUCATION
(continued)
On vote 21: minister's office, $410,000 (continued).
L. Stephens: When we left the estimates, we were talking about administration and the changes to the accounting manual that has just gone out to be used for this accounting year. I wonder if the minister would continue talking a little about the changes, particularly to function 1 and the instruction part of the manual, and tell us what the ministry hopes to achieve in function 1 with the new accounting manual.
Hon. A. Charbonneau: The general objective in issuing the new accounting manual was to get all school boards coding their expenses in a similar way, and reporting and budgeting those expenses in a similar way, such that meaningful district-to- district comparisons could be made. That in turn would allow us to look at the most effective way of administering a school district and the least expensive way of delivering quality administration.
[10:15]
There were great variations in the system as to how specific expenses were reported. Supervision was an example of that. Historically, because teachers were in the school during noonhour and it was expected that, either in the classroom or in the corridor, they carry out supervision, it came to be regarded as an instruction cost. With the collective agreements that are in place now, for the most part teachers do not do noonhour supervision. An administrator or conceivably a CUPE person -- but more likely an administrator -- would be doing noonhour supervision.
[ Page 11709 ]
Hence some districts were reporting supervision as an administrative cost. Others, knowing that it was historically instructional -- an anomaly but nonetheless instructional -- continued to report them as instruction costs. In the manual we have tried to define as closely as we reasonably can which aspects of supervision might be instructional and which are truly administrative.
L. Stephens: As the minister knows very well, a lot of school boards have a great deal of difficulty with the whole question of administration -- what should fall where and what should not. An awful lot of new expenses are being incurred by the school boards in freedom of information, workers' compensation and a few other things that have come forward which are adding to the cost of administration.
If I recall, I saw a ministry fact sheet that reported administration overages in virtually every district in the province, and virtually every district was over in accounting for administration. This says to me is that the system that has been set up isn't working. If every board is over in their administration figures, there's something wrong. It's not that the administrators are not administering in an efficient and effective manner; it's the system that isn't working. I hope the minister is saying that this is what he is addressing -- the system that has been put in place -- and not inferring that it is perhaps the administration that is not managing in an effective way.
One other area that's also included, as I understand it, are the costs for adult continuing education and home schooling, which are also in function 1. Would the minister expand a bit on how the kinds of efficiencies he's talking about would be captured in these areas: adult education, home schooling and correspondence? Will they be affected by the new administration manual and, if so, how?
Hon. A. Charbonneau: I'd like to address your preamble to the question first. The system does need changing. The fiscal framework, which uses a complex formula to come up with a number that is used in the process of distributing funds from Victoria to the school boards, is in my view inaccurate, inappropriate and overly complex, and I am taking steps to replace it with a simpler, more understandable and yet fair and equitable system.
I recognize that some aspects of our society and the changes that have been introduced into the system require more administration. The integration of special needs children and the invitation of parents and the community to participate more fully in the schools mean more administration. The complexity of the collective agreements that are in place requires more administration. What I am striving for is a fair system that recognizes reasonable administrative costs so that we can deliver effective yet cost-efficient management to the system.
With respect to your specific question on continuing education and offshore studies as part of 161, those would be coded instruction costs, not administrative costs.
L. Stephens: Just one further comment about instruction and the school boards. Something I've found since becoming critic for this ministry is that there's a lot of discord between the different groups within it. When we try to make changes, it's not helpful when one group is seen to be singled out, when in fact the whole is in need of the restructuring that both the minister and I agree needs to happen.
But rightly or wrongly, the perception is that the administration was singled out as being the bad guys of the system, and it was largely their inefficiencies that caused the great difficulty we have. I think that's quite unfortunate. The angle we need to work from is that it is the system that is causing all of us great difficulty, not individuals or individual groups within it, so the system needs to be fixed. There have been some comments made, which I won't go into, but I do want to get it on the record that I think much of the approach taken by this minister is desirable and has been in the best interest of the system. But that particular issue, in my view, hasn't been helpful to making it work for all of us.
I understand that the locally developed programs are also included in function 1 and the instructions. I wonder how their costs break down and whether or not there will be any changes to that area.
Hon. A. Charbonneau: Going back to your preamble in terms of identifying some as the bad guys, that was certainly not the intention. Societywide, we see businesses all over the country concentrating on trying to slim down administration costs, particularly middle management costs. The companies that have been most successful in slimming down administrative costs are some of the most successful in terms of surviving in their sectors. It is not a case of good guys or bad guys. It is a case of delivering effective administration at the least cost to the system so that as large a percentage as possible of public funds coming into the system is used to deliver services directly to children in the classroom. That in no way says that valuable services to children are not supported and enabled at the same time by good administration. It is a question of whether there might be too much cost on the administrative side and whether there might not be a better way of organizing our schools. Some districts in elementary schools, for example, have vice- principals. Other districts have decided that a vice-principal in an elementary school is not necessary. They have what they call a department head or a head teacher in charge if the principal happens to be out of the school. That may be as effective but lower in cost in terms of management, and I would like all districts to think about that. It might well be that principals in some districts are encouraged to teach at least one block; in others, they aren't. It may be best for the system and less expensive for principals to teach one block and then have one- eighth or some proportion of their costs allocated to instruction rather than to administration. That would still give good administration, but it would be more effective and efficient.
On locally developed programs, it depends on what the locally developed program specifically is. If it's a library program, it would be charged to the library. A counselling program would be charged to counselling, and an instructional program to instruction.
L. Stephens: New career preparation programs are going to be developed, and I suspect some additional costs related to these courses would be included. Some of them could be related to mechanical areas, commerce or the hospitality industry. How is this going to be fitted into the extra administration responsibilities incurred, and at what level?
Hon. A. Charbonneau: In any career prep program some of the costs, of course, would be instruction and some administration. In this particular fiscal year, because the Skills Now initiative was announced after the budget came out, the costs related to skills, and in particular the administration costs related to career prep course development, would not technically even be caught within the cap this time around. In future years, as career prep courses
[ Page 11710 ]
mature, there will no doubt be a coded administrative portion and a coded instruction portion.
L. Stephens: I have one other question about the administration cap. I'd like to know how it was arrived at. How was that 19 percent figure arrived at as a cap?
Hon. A. Charbonneau: This process really started in the previous fiscal year, when the previous minister sent a clear signal to the system that we wanted to see administration costs reduced. The device used to signal that was to reduce by 15 percent the fiscal framework allocation to administration. At the end of the day, when the actual budgets came in, we saw that the signal from the minister had had no effect. In fact, administration costs stayed about where they were.
[10:30]
I decided to take it beyond a suggestion and started to give firm instruction in this area. I set 15 percent, and there's nothing sacred about that particular number. There was an indication from the technical distribution group that total administration funding and actual expenses could be reduced. I initially called for 15 percent, and when staff reported a plan for doing that, I asked if it could be done. We thought it could, and then I said I wanted to increase the challenge a bit. I increased it about another 2.5 percent, which came to a total of 17 percent or 18 percent for reduction of administration costs. That percentage, incidentally, was not applied uniformly across the system, because some districts already had administration costs less than the proposed cap, and other districts were far in excess of it.
L. Stephens: If I remember correctly from the technical distribution group report -- and I'm just trying to find it here -- they specifically recommended that administration funding be increased. Could the minister explain the difference between what he's saying and what I recall of the technical distribution group's recommendations? I will look at the report to make sure that what I recall is accurate, if the minister would like to explain.
Hon. A. Charbonneau: We get back into the arcane complexities of the fiscal framework. We have a funding level in the system, and we have a spending level. The spending level on administration was well above the funding level -- namely, the number that pops out of the fiscal framework. The technical distribution group recommended that the funding level be increased, but it also suggested that the spending level could be decreased. With the cap being instituted the way I did it, it actually reflects an increase in funding but a decrease in spending.
L. Stephens: One of the recommendations in chapter 8, "Other Service Levels," is that they recommend replacing the current formula for instructional support with one that has a base amount for each school and a per-student amount, and continuing to provide additional funds for dispersed schools.
Could the minister explain how the new reporting manual will assist in coming to grips with sorting out these different administrative functions? Does he intend to integrate this with a new funding formula? I think we all agree that this is badly needed. Could he tell us whether there are plans to make those changes as soon as possible?
I'm not sure whether the minister agrees, but I think the whole system is dysfunctional. There are bits and pieces all over the place, and none of them really coordinates very well with the others. This is one of those examples where the funding formula doesn't seem to have any rhyme or reason in relation to any other areas within the system.
When you tinker with one, in this case the new reporting procedures, is there an overall plan to make it all work better? We talked earlier about a task force to devise a new funding formula. Does the minister have any way of bringing together a whole plan? What role does the technical distribution report play in that, aside from the fact that flowing from this, the other two financial reports are going to be rolled into a new task force on a funding formula?
Hon. A. Charbonneau: I'm just going to go a little further on my previous answer, partly to set the stage for this answer. For the funding formula -- the fiscal framework from 1993-94 -- admin was funded at $268 million. The actual spending was $100 million above that -- somewhere in that order. The '94-95 funding formula was increased to $302 million, in recognition of the recommendation of the technical distribution group that this be done. The $302 million represents a reduction in admin spending but an increase in admin funding. That example is almost perfect for saying the fiscal framework has to be replaced; it doesn't make sense; it's not connected to reality.
Having said that, we need to replace it with some distribution mechanism. The task force that I've indicated with in-house people and some out-of-system expertise will come forward this summer with recommendations we could use in the next budget building process. We'll try in that process to fund closer to reality. Having said that, we don't want to extend the philosophy of trying to fund and spend in a tightly controlled fashion. We still want to leave in the hands of the school board as many of the spending decisions as possible; I would prefer that virtually all the spending decisions be left in the hands of the school board.
I've introduced targeting to the degree that I have in order to correct what I feel are some anomalies in the system and to send the signal that there are some things we must do better. Even having done that, I think 75 percent or 80 percent of the entire funding is still unfettered. The spending is actually at the discretion of the school board. On one hand, we're talking about coming up with a formula that will calculate the funding required. I am going to hold them to that with respect to admin and with respect to a floor in special needs, as well as a floor in aboriginal. But I want to be very cautious that we don't link any kind of funding formula too firmly to any kind of spending. I want to leave boards in charge of spending, to the maximum degree possible.
D. Jarvis: I appreciate we've got to cut administration; everyone is talking about that. It looks like the whipping boys in the system are going to ostensibly be the vice-principals, in most cases. In most boards you're going to find that's where the administration is being cut, or superintendents are being cut, retiring or taking early leave and all the rest of it.
How can you suggest that the teachers come in and assist in administration and take over some things when most of the collective agreements -- in my riding specifically -- preclude the teachers from doing any administration? You can't just cut off vice-principals, which my district has already done this year because of the cuts and the deficit they're running under. They've cut four or five of them already. So if principals aren't in the halls during recesses, lunch hours and all the rest of it, all the schools are going to run amok. If teachers aren't prepared to come in, are you prepared to ensure in this new labour act that all the teachers
[ Page 11711 ]
would have to contribute so many hours to administration of the schools?
Hon. A. Charbonneau: I reject the language "bad guys" and who we are going to "whip," because that is not what this is all about. I'm not going to establish anybody as the bad guy; that's simply not my intention. My intention is to contain administrative costs at a reasonable level -- that is all.
I also think it's unfair to characterize this as drawing a bead on a particular area. When I made the announcement at the end of January that I was going to put on an administrative cap, many people were quick to say: "Oh, he's bought into the agenda of some other group." A month or two later when we brought in provincewide bargaining, suddenly everybody said: "Oh, maybe he's not buying into the agenda of a certain group. Maybe there is some balance." That is indeed the case. I'm trying to contain costs on the admin side, and not just all school-based admin -- central office admin also. Do we need to be spending the amounts of money that we are on central office admin? Admin obviously includes both. It might well be that due to the complexities of schools we need to spend as much as we are at the school site. It may be that some districts and some schools need vice-principals, and some do not. Some districts have decided thus.
As well, I will not get into here the outcome of bargaining between the new employers' association and the BCTF on their relative responsibilities within the new provincewide collective agreement. That is to be worked out at that table -- certainly not here. We're not going to legislate such things, nor will I speak about supporting this or supporting that. That is to be determined at the negotiating table. I would point out that it doesn't seem to make a lot of sense to me to have $80,000-, $85,000- or $90,000-a-year individuals patrol- ling the halls at noon. I don't understand how that is cost-effective. I don't understand why a support staff member could not be trained to do hallway patrol, backed up by administration. So the question on containing costs while providing effective administration is: how should noon hour supervision, for example, be organized in our schools? I submit that there's got to be a cheaper way than to have a person being paid $90,000 a year doing that. If I can push the system toward that, then I will have succeeded in containing costs while maintaining effective administration.
D. Jarvis: I'm not trying to suggest that there are bad guys or good guys. I was probably using the wrong terminology when I suggested that the vice-principals were being used as "whipping boys." As you say, it's a ridiculous situation when individuals with $90,000 salaries have to patrol the halls, but it comes to the point that one side or the other has to give, and the track record is such that collective agreements are not giving. There is no indication that the teachers' associations would be prepared to back off unless the word comes down from government. So the only other person left to be moved out would be the vice- principal or whoever it is in administration that's patrolling the halls.
[10:45]
It may be that you feel someone else should be brought into it. Who are we going to bring in? Will the collective agreements agree to having other people patrolling the halls? Will your teachers' association agree with that? How are they going to be enforced? They have no power. The principal and the teachers usually have some respect in the school, and those are the only two people that can do it, unless you bring in police. Do you have any comments on that aspect?
Hon. A. Charbonneau: First, whatever is in collective agreements has been agreed to through negotiation by school boards. Part of the problem we have perceived is that there has been unequal weight at the negotiating table. We have taken steps to correct that by creating provincewide bargaining with an employers' association and a union -- BCTF -- that have approximately equal heft and equal resources to draw on. But whatever has been embedded in collective contracts up to this point in time has been mutually agreed to. Whether they are for the good or for the not so good in terms of cost, they have been mutually agreed to. Part of the whole rationale for going to provincewide bargaining is to try to bring some balance to that process.
With respect to who could do this, it's my understanding that in some instances we have CUPE staff doing hallway monitoring right now. I agree with you that the principal or vice-principal or teacher is seen by the students as having more authority, and the argument that they are then more likely to be listened to probably has some validity. If, for example, a CUPE staff person were to be trained specifically to do hallway monitoring, and if that support staff member were to be backed up by the vice-principal and the principal, I would contend that over a period of time the person doing the hallway monitoring would establish some authority. That authority could then lead to order in the hallways at certainly a fraction of the cost of doing it with a $90,000- a-year person.
On the other hand, that is not to say that our principals should not be out walking the corridors from time to time. But they have many other things on their mind in addition to strictly observing and monitoring students. They are getting a sense of how the entire school is operating and if things going well or not. They're getting a sense of things right down to the level of maintenance and caretaking in the building and of a whole lot of things which are all, of course, truly administration functions.
By no means am I saying that principals and vice- principals shouldn't get out and walk the halls on occasion. What I am saying is that I think it's not a wise expenditure of taxpayers' dollars to devote an hour or an hour and a half of very highly paid time, five days a week, to a function that could be effectively accomplished at a much lower cost.
L. Fox: Along this line, there are a number of things on my mind with respect to administration costs.
Obviously one of the drivers in increasing administration costs over the last five to six years has been new initiatives in educational programs. One of the major factors I've seen around that issue has been travel costs of administration. In the early days of the Year 2000 -- and I think it went right on till perhaps only recently -- we saw a large amount of dollars put into the administration of a program that was having some difficulty being implemented within the system. That's one issue.
Another key factor in administrative costs that is of increasing concern to me is the social one that our schools have to deal with. Within our system we're getting further and further into a more social rather than educational network. There are two factors.
There's another concern with more definitive guidelines with respect to spending our special education funding. In the past there has been some flexibility in the system that would have allowed a school board to have a higher percentage of special needs children, whether they be native, non-native or handicapped. The school district had the flexibility to shift some of the special education dollars into a vice-principal's position in order to help meet the needs of
[ Page 11712 ]
that particular school because of the special needs that were created there. Without having to categorize the school in any way, shape or form, or identify it differently from any other school, those decisions were made quietly to meet the needs, and there was no stigma attached to the school. I think we have to be very careful in allowing those kinds of flexibilities in the system.
I understand and agree with the minister that there's a very real opportunity through non-teaching staff to achieve lesser costs, in terms of noonhour supervision and other supervision duties. In many instances and in many school districts that's already being applied, and those kinds of practices are already negotiated locally and are being dealt with.
I want to remind the minister that it isn't only CUPE; in my district it's IUOE. So that we don't offend anyone, we call them non-teaching staff. But in any case, there are some real concerns in terms of putting a cap on the administration fees that may not allow flexibility to meet these other needs that arise on a day- to-day basis. I'd like the minister's comments on these observations.
Hon. A. Charbonneau: The member has raised many points of interest. Indeed, there are societal changes: single parent families, two working parents, immigration, refugees, the increasing inclusion of aboriginal students and the increasing incidence of violence in our society -- all of which expects the schools to solve many things. I would contend that the school is a good place to attack those problems, but that it does entail not only increased instructional costs, but increased admin costs. I have a fairly good idea, after visiting perhaps 130 to 140 schools, of the challenges we expect our teachers and administrators to deal with. Sometimes these challenges are daunting. The magnitude of problems, which for the most part are handled successfully, is at times awesome. But there are some things in admin where savings can still be realized. One thing you mentioned is travel.
I noticed in the ministry at the outset many committees, sometimes of huge size and sometimes with terms of reference that go on for years. I think we've successfully dealt with that element of admin costs. I should be clear that in many of these comments on admin, I'm including admin here in Victoria. We have to look after the taxpayers' dollar, too.
We did something last week for the first time. We had some major initiatives to discuss, and we did a teleconference rather than have 200 or 300 people come down to Victoria or Vancouver. We used regional centres around the province. Five representatives of each of the 75 school districts went to a regional location close to them. A total of nearly 400 people were involved. Had that been done the old way, that one day would have cost something in the order of a quarter of a million dollars for all the travel and all the downtime people would have had. We accomplished it through videoconferencing -- 400 people plugged into it -- for $20,000 to $30,000. In my view that's smart administration, effective administration and efficient administration.
We have to take the kernel of that idea and try to extend it to as many areas as possible -- for example, fewer committees. We've gone from 40 or 50 or 60 down to about five standing committees. And smaller sizes. Instead of having 20, 25 or 30 people on a committee, I want them to be much smaller -- other than the five standing committees. There are tight time lines and a tight definition of what the product is -- hand the subcommittee or a task force the job, have them complete it within a specified period of time, and then dissolve it. That will save us a lot of money: personnel time, travel time and all the other expenses that go along with that.
On social issues, I really do believe that if we attack the problem with poverty initiatives at as young an age as possible, right at the kindergarten or the junior kindergarten level, we will prevent some of the problems that are rippling through our system right through K-to-12. The inner city funding increase we've had this year is up to $5 million, training of teachers to deal with special needs is $3 million and the special initiative in severe behaviour problems is $30 million. We have the young parent program in place, and the school lunch program has been brought in place. I believe all these things are initiatives that will help our teachers and administrators solve the societal problems that are being put upon our schools, and they will do it in a good location and in a sensitive but cost-effective manner.
L. Fox: Earlier, I think, the member for North Vancouver- Seymour made a very good observation. In fact, I have already seen it in my districts as well. It's unfortunate, but the minute there is a ceiling or a budget cut, junior positions are eliminated -- we've seen it in health care, and we'll see it in education -- a very high percentage of the time The district administration and senior positions are seldom cut. We see situations in administration where curriculum coordinator positions are no longer going to be available. We see vice principals' jobs eliminated. We've seen eliminated some secretarial jobs that were in the administrative parts of the budget. I wonder whether caps or ceilings are the answer or whether straight budget cuts are the answer in those situations.
I'll point out my district because of the cuts there. However, I want to clarify that cuts are taking place in many districts. I think the Cariboo and Quesnel are very good indications of this. They sign up teachers for a one year only, and they lay off a number every year who have only a one-year contract. Then in September they hire back the number that they're going to need; there are some good reasons for that from an administrative point of view as far as the school district is concerned.
[11:00]
This is one of the concerns that I have. In Nechako we have two schools that have been handled by contract through the Nechako School District, one in Tache and one in Portage. By and large, young teachers just out of college or university are hired there. They look forward to the challenge and the opportunity to teach on a reserve. However, during the last two years these young, dedicated people who are hired to teach on those reserves are the first ones to go, because they're junior to others. Because of the seniority clause and the constraints in that district, they're cut, and that, perhaps, is right. I'm not going to argue that we should do away with the seniority clause in bargaining. However, it's a fact. They've got experience and dedication, and all of a sudden they're the junior positions that go. That's one of the faults in our system, unfortunately. I'm not expecting you to correct it, because I don't know if it's correctable unless all parties can agree that there's a better process for handling these situations.
There are a couple of things -- and perhaps I get a little bit long-winded -- about this that bother me. I understand that you are trying to address this. Every district reports its administration costs differently, and every district is at a different level in terms of percentage. Part of that is because of district sizes; part of that is because of the complexity of the programs in respective districts. There isn't a consistent rule or yardstick that you can use in order to judge whether
[ Page 11713 ]
they're efficient in terms of their administration costs compared to another district because of the complexities in the system. I'm a bit concerned that the capping process has not been sufficient to weigh all the factors in determining whether the education program in some districts is going to suffer because of those caps.
Hon. A. Charbonneau: The instance you mention of the younger teachers being contracted in is an interesting bit of information. I've just been told that federally funded band schools have contracted with the district to have teaching staff provided. The young teachers who are teaching there are still members of the bargaining unit of the district. If for reasons of, say, declining enrolment, seniority clauses kicked in, then a less senior teacher might be laid off. If federal funding were to change, and the band were to change its mind as to who it was able to hire, the same thing might result.
I think you're right that we have a seniority system, and of course it's not just within our unions, it is within our entire society. Every time tough times come, the people at the bottom of the totem pole tend to be the ones who are squeezed. I happen to think that is not very just, and I not only talk the talk, but I walk the walk. As an owner, manager and administrator of an engineering firm during tough times in the early seventies, I inverted the cuts. The greatest salary cuts -- 20 percent -- were made at the principal level of the company, then senior administration, then engineers and down to support staff. In fact, we gave raises to support staff during that tough period. We did so by squeezing a great deal at the top, including myself; I went to half-time in order to save the position of a junior engineer.
D. Jarvis: That's politics.
Hon. A. Charbonneau: That was before I even thought about politics. That is what I think is justice -- the people who have more capability of giving ought to be the ones who do the giving. Unfortunately, many of our systems are not set up that way, and I suspect that we have a substantial commonality there on philosophical grounds.
As to whether the challenges are better faced through caps or cuts, I would submit that caps are probably the better way. If it is purely cuts in funding, then surely the least senior of the least powerful will feel the greatest impact. I believe that if you are going to try to squeeze down a system, you should define sections of it and then make sure that you're at least squeezing down on everybody uniformly and not allowing the people at the top to decide who gets squeezed in order to protect their own interests. Capping admin forces everybody. Even within the admin, of course, the tendency is to squeeze the people at the bottom -- the school secretaries -- and that is definitely not the signal I sent to the system. School secretaries and support staff for assisting the teachers in all of their instructional activities are vitally important to a school.
I expect that districts will look at the top of their structure to the maximum degree possible. We tried to help in that by freezing excluded staff salaries to make sure that we were at least containing that cost. We have a system that has some very strange anomalies. We have administrators in the field who earn -- through a total of salaries, benefits, perks and everything else -- far more than the most senior member of my staff. If you tried to assess things in the matter of responsibility for the burden that is carried, for the hours that are put in and for the pressures that are put on, I would submit that my most senior staff carry a far greater burden of responsibility and pressure than anybody else in the system; yet others are probably paid as much as -- well, we won't get into it -- or far in excess of what we pay our own staff with provincewide responsibilities. We have to make some corrections in the system. Those corrections are going to have to be made over time, and the greatest pressure should be at the top and not at the bottom.
L. Fox: I understand that. For five years I had the privilege of being a trustee and was very aware of those kinds of anomalies. Somewhat in deference to that, I'm concerned whether there's enough flexibility in the system. Rural districts have often used salary increases or large salaries and good benefit packages as a way of attracting top individuals, because top administrative people may have to make many sacrifices in order to offer their services in a more remote region of the province. Oftentimes school districts did use benefit packages and salaries as a way of attracting top candidates. I suspect, however, that you're going to find that in the administrative areas the higher wages are probably not in the rural parts of the province, but in the larger districts, which are more likely on the coast.
I want to get back to one other issue. In terms of travel and benefits, is any weighting placed on the cost differences that can be incurred by rural boards versus urban or lower mainland boards, and are there any prorated amounts that recognize the higher costs in rural districts versus those on the lower mainland?
Hon. A. Charbonneau: I'd like to make one comment to start off. There was a time when rural, interior districts or northern districts needed to offer some kind of premium, but as you and I both know, as representatives of the hinterland, the quality of life is now so much superior that we just about have to hold people away. Perhaps at one point in time many years back, some differentials -- let us say in salary -- might have been necessary in order to attract and hold people. There is probably less need for that now because of quality-of-life issues.
With respect to your query about urban versus rural expenses, there are factors. I'm sure you recall from your period as school trustee that there are many expenses or items built into the fiscal framework that relate not only to the distance from Vancouver for shipping and travelling expenses, but also recognize that rural schools are further apart and there is greater travel time between schools simply for administrative purposes. The fiscal framework factors these in. In some instances there is also isolation pay that partly reflects the urban-versus-rural differential. So there are a number of factors in the fiscal framework that recognize differences between rural, particularly remote rural, and urban, particularly lower mainland urban.
L. Stephens: I have a few more questions about administration. For the past several years, district administration spending, relative to total school district expenditures, has averaged about 3.5 to 4 percent for 1993-94. The school boards are budgeted 3.6 percent for district administration. Another interesting fact is that there are fewer administrators in the system now, relative to the number of teachers, students and schools than there were in the late seventies and the early eighties, despite major program changes, legislative changes and additions to the mandate of the public schools.
When we're talking about the costs of schools, I think we have to put it in perspective. We also have to agree that collective agreements are part of the difficulty in many
[ Page 11714 ]
instances. We have to recognize that the flexibility that we need to manage the system in a more economical, efficient and effective way is what we all desire. The ability to do that is going to have to be addressed in an open and honest way in dealing with some of these issues.
[11:15]
The additional administration costs that the districts are going to be faced with are the public liability and property loss, the benefit cost for retired teachers that has just been passed and the mediated settlements for 1994-95 that are going to provide for salary increases. These are three costs. Where are the savings going to come from to pay those increased costs? Will there be other moneys put into the system to account for all of that?
Hon. A. Charbonneau: Before answering your question, I'd like to add a bit of information to my previous answer to the member for Prince George-Omineca. In the fiscal framework there is also a specific item that addresses the geographical location which catches a lot of urban versus rural differential. I can provide you with further information on that if you choose.
I'll come back to administrative and other expenses of the education system and how we can fund them or intend to fund them. The percent spent on district admin may not be rising significantly. It may be going from the 3.2 or 3.3 percent, which you've suggested, to 3.5 percent. Partly that reflects increased complexity of administration, as we have been discussing, but at the same time I think we have to recognize that the trend is in the wrong direction. Businesses also recognize that they've got to get their administration and management costs under control, often by severe slimming down in middle management. I think the public systems have to recognize the same pressure and act upon it.
Over the last five years we have had about a 47 percent increase in the budgeted amounts for administration. In that same period of time we've had a decrease in the budget for the ministry itself -- ministry operations -- of 10 percent. So we've got ministry operations as a fairly rapidly declining percentage of the total education budget. I think we're now down to about 1 percent. I'll get the number in a minute. The percent of the overall budget that the central bureaucracy consumes is a fairly sharply declining percentage, but the percentage of education costs -- total budget -- that goes to administration systemwide is rather rapidly increasing. With respect to the total budget, we spend about 1.57 percent of it for administrative costs. I may be reading this chart wrong. I'm going to come back and answer that question in a moment, if you'll permit me.
As for some of the other factors that are driving the costs, collective agreements were mentioned, and certainly they have been. Typically, salaries for vice-principals and principals are tied into the outcome of collective bargaining. They take a position from the grid and add a premium to that point on the grid for the salary of either a vice-principal or a principal.
On the one hand, we have collective agreements driving costs. But in central office, quite often the situation is that the superintendent's salary is set, and then all other salaries are pinned to the superintendent's salary. We have seen some healthy increases in superintendents' salaries over the last five years, hence the substantial cost pressure there. We have to contain both.
We have to, through provincewide bargaining, contain the costs on the teaching side, and through other government actions -- through PSEC -- we have to control the costs on the administration side, partly by capping and partly by being a bit parsimonious with the overall budget. That then, not necessarily through cuts but through holding fairly firm on the allocation to education, causes spending changes to be made in the system.
With respect to pension benefits, those changes will be paid entirely within the pension system. It will not have an impact on the taxpayer.
As for mediated settlements, there were negotiated settlements in the 1.5-to-2 percent range, and mediated settlements and settlements imposed essentially through mediation in the same range. All of those reflected costs above the funding level. In all of them, the system has had to respond by decreasing services in other areas or finding the money within the system. We have 75 budgets in, which conform to the budget allocations that we gave the districts. Although there has certainly been some pain in some sectors and districts, at the end of the day all the districts are going to be able to live within the allocation they have been given.
L. Stephens: I have the list of the arbitrated settlements, and I know there are some that are in the 4.5 percent range. Those districts are the ones that are struggling with cutting library programs, music programs and all those kinds of programs. There's not just one or two districts; there are a number of them.
Back to administration salaries and whether or not administrators are overpaid. There have been a number of references to national surveys that cover both the public and private sectors, as well as the education sector. They clearly show that school district administrators are compensated significantly lower than most public sector administrators, relative to the number of employees in the organization and the size of the budget for the organization. This was a leadership study done by the Conference Board of Canada, plus Deloitte and Touche, and Peat Marwick Stevenson and Kellogg.
When we talk about administrative costs and school board budgets, 90 to 93 percent of those budgets are wages, salaries and benefits. If the administration costs are 3.5 to 4 percent, and they're being budgeted at 3.6 percent, I would suggest to you that most of that 90 to 93 percent is for teachers' salaries in the collective agreements. Understanding and recognizing that education is a labour-intensive operation, it would by definition be higher in salaries than a lot of other organizations. But I think we can still say that there needs to be some effective and efficient managing of those resources.
I'll go back to what the minister said about the $90,000-a- year school-based manager, and I assume that he's referring to vice-principals and principals. I would have to agree with him: do we need someone with a master's degree managing the efficient organization and running of a school? I'm not sure if that's an efficient way of utilizing the money we have within the system. There are some suggestions put forward that we should have people managing our schools who aren't necessarily teachers, and that those who do teach should just do that and leave the actual day- to-day running of the school to a manager who has the training to manage. That's just an aside, and I'd like to know what the minister thinks of that idea, and whether or not it's being considered as a more efficient way to use the personnel within the school system.
Hon. A. Charbonneau: First, I'd like to keep in mind that when you mention a figure of about 3.6 percent on admin, that is central office only -- the district office; school-based admin would be an additional 5.2 percent or so. The total admin cost is roughly 8.8 percent -- just under 9 percent.
[ Page 11715 ]
Very approximately, 70 percent of budgets are going to teacher salaries and benefits, around 15 percent to support staff salaries and benefits and around 9 percent to administration salaries and benefits. Those are roughly the numbers. If you add them up you'd see that we're getting up to something like 91 percent that goes into salaries and benefits as opposed to around 84 percent or 85 percent five years ago. At that time there was 15 percent so-called wiggle room to cover off a whole range of other expenses that a board might have, many of them dealing with services to students. These might be for athletics, travel, field trips, supplies and materials or many other things.
[11:30]
Over the past number of years we've seen pressure on the collective bargaining side and pressure with respect to the settlement of superintendent and senior admin salaries. Both of these inexorably squeezed that 15 percent wiggle room down to where it is now at maybe 8 percent to 9 percent, at the expense of team sports, travel, equipment maintenance, minor maintenance of the building, and supplies and materials. Because the wiggle room has been squeezed, we have parents out raising money, teachers raising money and kids going door to door raising money. The responsibility for that is in both camps. It's the board who has agreed to these increased wages, and it's the pressure from teachers, support staff and administrators for more money.
With respect to the last five years on the consumer price index, if you compare the salary increases of both principals and vice-principals to the consumer price index, you see that the salary increments over the five years from 1988-93 clearly outpaced the consumer price index -- so have senior admin salaries and teacher salaries. We've got to get them all under control. As of the end of the last school year we had, across the province, 101 district and school staff being paid over $100,000 a year. In my ministry, which has the senior responsibility for this whole thing, there is one who is paid over $100,000 -- and it ain't me! I will submit that costs on the admin side as well as costs on the teaching side have not been controlled.
This afternoon I'll provide you, if I could, with some detail as to what some of the admin salaries in the field are versus the range of admin salaries within the ministry, in order to give you some actual numbers to work on. I'll also provide you with a more precise number of what percentage of the total budget ministry operations consumed five years ago compared to what percentage it consumes today. Whereas the ministry is getting costs under control, you will see that the system isn't, and we have to fix that.
L. Stephens: We're comparing apples and oranges a little, I think. When we're talking about the CPI outpacing...the argument could be made for an awful lot of sectors within society where that is happening, so it's not an area that is exclusive to the education system.
As far as the education system's administrative salaries in the ministry -- in or out -- we're talking about responsi- bilities, number of employees and budget comparisons of people in or out of public service or private industry in relation to what they're making, the number of employees they are responsible for, the organization and the budget. This is the comparison made, not whether they are up or down the consumer price index.
Regarding the service levels for health and safety, there's been some discussion as to whether or not the removal of the costs of health contracts from the board is going to be coming forward. I wonder if the minister could comment on that.
Hon. A. Charbonneau: Those health responsibilities were passed to Health at the request of the system and of the district. I think all along those programs should have been delivered as part of the Ministry of Health budget, and we've taken that step to move them there.
L. Stephens: Just a little more along the lines of health and safety. I know we're all well aware of the societal issues in our classrooms today. How to deal with them is a huge concern, costwise and servicewise, as well as the other considerations. There needs to be a link between the classroom and those kinds of services. The questions are how to get it there, who does it and how it's delivered. Since the government has removed the costs of health contracts, and so on, how is the Ministry of Education going to be involved in societal issues in the classroom that revolve around health and safety issues? How are we going to come to grips with that which is becoming a more serious problem in the schools?
Hon. A. Charbonneau: I think the best thing we can do to deliver an effective and efficient service is to bring together the services from various ministries and organize them in a way that delivers a valuable product to the students and the families that need those services. We're putting together a poverty initiative to deal with youth and children who are at risk in our society, and education is playing a key role in that. We will do it in partnership with the Ministry of Social Services; the Ministry of Health through community health and mental health; the Attorney General's ministry with respect to youth workers; Skills, Training and Labour and the assistance that they're able to provide; Womens' Equality with respect to day care; Aboriginal Affairs with respect to aboriginal issues; and the Ministry of Housing with respect to housing issues.
The problems that children have in our schools -- the societal problems you've made reference to -- require services from all those ministries and agencies within those ministries. I'm not announcing any policy today, but the government will be coming forward with an anti-poverty initiative built around this concept, which I think will be very good news for the system and very good news for children at risk in the province.
The Chair: Hon. member, I think we might wind up with a couple more questions when you're finished, and then rise and report. I don't want to leave us too short at the other end.
L. Stephens: The problems in this area are not easily solved; I think we all know that. A more integrated approach with other ministries and organizations to deliver these kinds of services is required. The question is: is it more appropriately delivered through the school system or given through the community itself? I wonder if the minister has some thoughts on the role of government and of communities in that area.
Hon. A. Charbonneau: I believe the school has a vital role to play. The school is quite often the centre of a community; it is a location for all members of a community to interact; it is where our children are; it is frequently where parents come; it is where some of the problems of society reside.
I believe that the school, particularly a community school model, is an absolutely wonderful place to deliver some integrated services from government, to be able to deal not only with the child when the service is needed -- right then and there -- but also to be there if the parent comes in for a
[ Page 11716 ]
conference with the principal or with the teacher, or if the parent comes there after school to perhaps give information to the system or to receive information from it.
That to me seems the perfect location to add the other services of government and to deliver an integrated package to those in need, not only the child but the family. Furthermore, I think we cannot expect to do that just on-site. I'm of the view that we need an outreach program, such that the skilled, professional personnel involved can reach out into the home and try to solve the root problems, because in many instances the problem originates with some kind of dysfunction in the home. It may be a health problem or some other kind of social dysfunction. We can't solve it just in the school; we certainly can't expect the teaching staff alone to solve the problem. We've got to bring in the other professionals, and then we must go beyond that. We must help the child and the parent in the school, but we must also endeavour to help the child and the parent and the family in the home.
L. Fox: Very quickly -- because I think we've entered into an area where we could have a long debate not necessarily on the issue of need, but perhaps on the issue of delivery and the best agency to deliver what the minister has just outlined as the need -- my concern is this. One of the reasons that people are looking for alternative schools is that the social pressure we put on the school system has put less emphasis on the academic needs of students and more emphasis on their social needs. I think we have to be very careful that we don't continue to take away from the time a student can spend on academics by putting more and more social pressures on the school system to meet health and other social needs. That's perhaps something we can carry on with after lunch.
[11:45]
While we're on the administration part, I wanted to ask one question. It's been rumoured that there was going to be a look at amalgamating some school districts, and one of the drivers of that was the admin costs. Can the minister tell me if in fact that is still being looked at, and if so, what the status of that is?
Hon. A. Charbonneau: I'll take your points one at a time, and perhaps after lunch we'll come back to them.
I think the idea I'm trying to advance of having social service professionals, public health professionals, mental health professionals and child care professionals deal with the societal problems would allow teachers to deal more with the teaching problems. I believe that we can both raise the performance in our schools in an academic sense in terms of delivering the teaching program. I believe we can both raise standards there and solve some of the societal problems.
I'm just saying that we can't expect the teacher to be both. I think what you've done is put your finger on part of the problem. We have been expecting our principals, our vice- principals and our teachers to be solving problems that they were not trained or educated to solve. They have been doing their best to do it, and we have some wonderful successes in the province to show that they succeed quite often. But they succeed by putting more energy and effort into that area, which leaves perhaps less energy and effort in the teaching area. I would like to turn the mission of the teachers in the schools back more toward teaching and bring in other professionals, who are funded by other ministries, to deal with the societal problems. I'm just suggesting that the community school is a good place to do that, and it would not be a net increase in cost. In fact, there could be net savings as a result of doing it that way.
With respect to amalgamation, I have made my views known on a number of occasions. I think school districts are essential and quality people as trustees are essential in order to make the system work, but I don't think we need 75 school districts in British Columbia. We have seen amalgamation occurring across the country as government after government has recognized that there is perhaps too much money being spent on that element of administration and that some judicious amalgamation or redrawing of boundaries may be in order.
I am not going to act precipitately on that. I will put a process in place that will go out and consult with the system. I have indicated to the trustees that there will be no changes in their term in office so that they can get on with carrying out their responsibilities to their electorates. But at some point in time, after the analysis and consultation have been done and the recommendations have come back to me, I intend to act, and that could entail some amalgamation of school districts.
The Chair: Hon. minister, I wonder if I could prevail upon you to do the motion that's required at this time. We've drifted past our time.
Hon. A. Charbonneau: I move the committee rise, report progress and ask leave to sit again.
Motion approved.
The committee rose at 11:45 a.m.
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