Bill 38 – 2022: Indigenous Self-Government in Child and Family Services Amendment Act

HONOURABLE MITZI DEAN
MINISTER OF CHILDREN AND FAMILY DEVELOPMENT

BILL 38 – 2022

INDIGENOUS SELF-GOVERNMENT IN CHILD
AND FAMILY SERVICES AMENDMENT ACT

HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

(a) in subsection (1) by repealing the definitions of "aboriginal child" and "aboriginal community",

(b) in subsection (1) in the definition of "designated representative" by striking out "an Indian band, an aboriginal community or a treaty first nation" and substituting "a First Nation, an Indigenous community or a Treaty First Nation",

(b) who a First Nation confirms, by advising a director or an adoption agency, is a child belonging to a First Nation; ,

(e) who is 12 years of age or over, of Indigenous ancestry, including Métis and Inuit, and considers himself or herself to be an Indigenous person, or

(f) who an Indigenous community confirms, by advising a director or an adoption agency, is a child belonging to an Indigenous community;

"Indigenous community information", in relation to an Indigenous community to which an Indigenous child belongs, means the following information:

(a) if the child is a First Nation child, the name and location of the First Nation;

(b) if the child is a Nisga'a child, the location of the Nisga'a Nation or the child's Nisga'a Village;

(d) if the child is not a First Nation child, a Nisga'a child nor a Treaty First Nation child, the name and location of the child's Indigenous community;

"Indigenous governing body" has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act;

"Indigenous peoples" has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act; ,

(f) in subsection (1) by repealing the definition of "relative" and substituting the following:

(b) who, in the case of an Indigenous child, is considered to be a relative by the child or by the child's Indigenous community in accordance with that community's customs, traditions or customary adoption practices; ,

(g) in subsection (1) by repealing the definition of "treaty first nation" and substituting the following:

"Treaty First Nation", in relation to a Treaty First Nation child, means the Treaty First Nation of which the child is a Treaty First Nation child. , and

(3) In the following sections, paragraph (b) of the definition of "relative" does not apply:

(a) in subsection (1) (g) by adding "and preferences, without discrimination, including discrimination relating to Indigenous identity, race, colour, ancestry, place of origin, religion, family status, physical or mental disability, sex, sexual orientation and gender identity or expression" after "views", and

Best interests of child – Indigenous children

3.1 (1) If the child is an Indigenous child, in addition to the relevant factors that must be considered under section 3 (1), the following factors must be considered in determining the child's best interests:

(a) cultural continuity, including the transmission of languages, cultures, practices, customs, traditions, ceremonies and knowledge of the child's Indigenous community;

(b) the development of the child's Indigenous cultural identity, including the child being able to practise the child's Indigenous traditions, customs and language;

(c) the preservation of the child's connections to the child's Indigenous community and the region where the child's family and Indigenous community is located;

(e) any plans for the child's care, including care in accordance with the customs and traditions of the child's Indigenous community.

(2) In this section, "family", in relation to an Indigenous child, includes the child's relatives.

Self-government principle

3.2 This Act, to the extent the provisions of this Act relate to the adoption of Indigenous children

(b) in respect of whom a director of child protection is the personal guardian under section 51 of the Infants Act,

must be interpreted and administered in accordance with the principle that Indigenous peoples have an inherent right of self-government, including self-determination, that is recognized and affirmed by section 35 of the Constitution Act, 1982 and by the United Nations Declaration on the Rights of Indigenous Peoples.

(a) in subsection (1) by striking out "and" at the end of paragraph (f), by adding ", and" at the end of paragraph (g) (ii) and by adding the following paragraph:

(i) to obtain information about the Indigenous cultural identity of the child, and

(1.1) Before placing an Indigenous child for adoption, in addition to the requirements under subsection (1), the director or the adoption agency must give the applicable Indigenous community information, if known, to the following:

Before placement of Indigenous child for adoption

7 (1) Before placing an Indigenous child for adoption, a director or an adoption agency must consult and cooperate with the following, as applicable:

(a) if the child is a First Nation child, a designated representative of the First Nation;

(b) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(d) if the child is not a First Nation child, a Nisga'a child nor a Treaty First Nation child, a designated representative of an Indigenous community that has been identified by

(b) in respect of whom a director of child protection is the personal guardian under section 51 of the Infants Act.

(3) If the child being placed is an Indigenous child, in addition to the requirements under subsection (2), the director or the adoption agency must give the applicable Indigenous community information, if known, to the following:

(a) in subsection (3) by striking out "and" at the end of paragraph (a), by adding ", and" at the end of paragraph (b) and by adding the following paragraph:

(b) in subsection (5) by striking out "If a child" and substituting "Subject to subsection (6), if a child", and

(6) If an Indigenous child has been placed for adoption by an extraprovincial agency, the following consents are required:

(7) For certainty, in the case of an Indigenous child, an adoption order does not affect any rights of the child as an Indigenous child.

(a) in subsection (1) by striking out "an Indian band or aboriginal community" and substituting "a First Nation or Indigenous community", and

(2) For certainty, in the case of an Indigenous person, an adoption recognized under subsection (1) does not affect any rights of the person as an Indigenous person.

(1) If Indigenous community information was not provided to an Indigenous child or a prospective adoptive parent under section 6 or 8, a director or an adoption agency must, after the adoption of the child, make all reasonable efforts to disclose, if in the child's best interests, the applicable Indigenous community information to the following:

(b) in subsection (2) by striking out "aboriginal child" and substituting "Indigenous child",

(c) in subsection (2) (a) by striking out "an Indian band" and substituting "a First Nation" and by striking out "the band" and substituting "the First Nation",

(d) in subsection (2) (a.2) by striking out "treaty first nation" in both places and substituting "Treaty First Nation", and

(e) in subsection (2) (b) by striking out "not described by paragraph (a), (a.1) or (a.2), by a designated representative of an aboriginal community" and substituting "not a First Nation child, a Nisga'a child nor a Treaty First Nation child, by a designated representative of an Indigenous community".

11 Sections 63 (1) (c), 64 (1) (d) and 71 (1), (3) and (5) are amended by striking out "treaty first nation" wherever it appears and substituting "Treaty First Nation".

Definitions and interpretation for this Division

"decision-making agreement" means an agreement negotiated and entered into under section 7 of the Declaration on the Rights of Indigenous Peoples Act relating to statutory powers of decision under this Act;

"statutory power" has the same meaning as in section 1 of the Judicial Review Procedure Act, but does not include a power or right conferred by this Act to exercise a statutory power of decision;

"statutory power agreement" means an agreement entered into under section 6 of the Declaration on the Rights of Indigenous Peoples Act relating to one or both of the following:

(b) the consent of an Indigenous governing body before the exercise of a statutory power under this Act;

"statutory power of decision" has the same meaning as in section 1 of the Judicial Review Procedure Act.

Agreements in relation to the Declaration on the Rights of Indigenous Peoples Act

74.2 (1) For the purposes of this Act, a statutory power agreement may only be entered into in accordance with subsections (2) and (3).

(2) For the purposes of this Act, the Lieutenant Governor in Council may authorize the minister, on behalf of the government, to negotiate and enter into a statutory power agreement with an Indigenous governing body.

(3) Section 7 (2) to (5) of the Declaration on the Rights of Indigenous Peoples Act applies to a statutory power agreement.

(4) A single agreement may contain both a decision-making agreement and a statutory power agreement.

Required conditions in agreements

74.3 A decision-making agreement or a statutory power agreement must include conditions on the use, disclosure and security of information that is provided under the agreement to an Indigenous governing body.

Effect of agreements

74.4 If a decision-making agreement or a statutory power agreement has been entered into,

(a) the statutory power of decision or the statutory power, as applicable, must be exercised in accordance with the agreement,

(b) a reference under this Act to that statutory power of decision or that statutory power is to be read as a reference to the statutory power of decision or the statutory power as made in accordance with the agreement, and

(i) terms identifying the person who is exercising, or providing consent in relation to, a statutory power of decision or a statutory power in accordance with the agreement;

(ii) terms relating to the criteria or procedures for the exercise of, or consent in relation to, a statutory power of decision or a statutory power in accordance with the agreement.

(a.4) any Indigenous governing body not described in paragraphs (a), (a.1), (a.2) or (a.3); .

Immunity from legal proceedings

79 (1) Subject to subsection (2), no legal proceeding for damages lies or may be commenced or maintained against a person because of anything done or omitted

(2) Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted in bad faith.

(3) Subsection (1) does not absolve the government or an Indigenous governing body from vicarious liability arising out of anything done or omitted by a person referred to in that subsection for which the government or Indigenous governing body would be vicariously liable if this section were not in force.

16 Section 91 (2) (b) is amended by striking out "treaty first nations, Indian bands and aboriginal communities" and substituting "Treaty First Nations, First Nations and Indigenous communities".

17 Section 1 (1) of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46, is amended

(a) in the definition of "director" by adding ", 91.1 or 91.2" after "section 91",

"federal Act" means An Act respecting First Nations, Inuit and Métis children, youth and families (Canada); ,

(d) by repealing the definition of "First Nation child" and substituting the following:

(b) who an Indigenous authority confirms, by advising a director, is a child belonging to a First Nation; ,

"Indigenous authority" means a body or entity, including an Indigenous governing body, that is authorized by an Indigenous governing body to provide Indigenous child and family services under Indigenous law; ,

(g) by repealing the definition of "Indigenous child" and substituting the following:

(e) who is 12 years of age or over, of Indigenous ancestry, including Métis and Inuit, and considers himself or herself to be an Indigenous person, or

(f) who an Indigenous authority confirms, by advising a director, is a child belonging to an Indigenous community; , and

"Indigenous child and family services" means services provided by an Indigenous authority to support Indigenous children and families, including prevention services, early intervention services and child protection services;

"Indigenous governing body" has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act;

"Indigenous law" means a law in relation to Indigenous child and family services that is made in respect of Indigenous children and families by an Indigenous governing body in accordance with the law-making authority of the Indigenous governing body; .

(b) in the planning and delivery of services to Indigenous children and families, there should be consultation and cooperation with Indigenous peoples and Indigenous governing bodies; , and

(b.1) services should be planned and provided in ways that prevent discrimination prohibited by the Human Rights Code and that promote substantive equality, respect for rights and culture and, in the case of Indigenous children, cultural continuity;

(d.1) services to Indigenous children and families should be provided in a coordinated manner with Indigenous child and family services provided by Indigenous authorities; .

Self-government principles

4.1 This Act must be interpreted and administered in accordance with the following principles:

(a) Indigenous peoples have an inherent right of self-government, including self-determination, that is recognized and affirmed by section 35 of the Constitution Act, 1982 and by the United Nations Declaration on the Rights of Indigenous Peoples;

(b) the inherent right of self-government includes jurisdiction in relation to Indigenous child and family services, law-making authority in relation to those services and authority to administer and enforce laws made under that law-making authority;

Indigenous laws prevail in relation to Indigenous child and family services

4.2 Subject to sections 4.3 (4) and 4.4 (1) and (2), if there is a conflict or inconsistency between this Act and an Indigenous law in a circumstance where an Indigenous authority is providing, or intending to provide, Indigenous child and family services under the Indigenous law, the Indigenous law prevails to the extent of the conflict or inconsistency.

Duties respecting Indigenous children

4.3 (1) When exercising powers and performing duties under this Act, a director must promptly take all reasonable steps to confirm whether a child is an Indigenous child.

(2) If a child is an Indigenous child, a director must promptly take all reasonable steps to obtain information about and confirm whether there is

(a) an Indigenous authority with jurisdiction for Indigenous child and family services in relation to the child, and

(3) If there is an applicable Indigenous law in relation to an Indigenous child, a director must promptly take steps when an Indigenous authority is to provide Indigenous child and family services in relation to the child, including by

(4) If a director provides services under this Act in relation to an Indigenous child to whom an Indigenous law applies, the director must provide the services as follows, as applicable:

(a) subject to section 4.4 (2) and (3), in a manner that is consistent with the Indigenous law,

(ii) if the Indigenous law is not provided in writing to the director, in accordance with an agreement referred to in paragraph (b) of this subsection;

Considerations in relation to duties and the provision of services

4.4 (1) An Indigenous law does not have the effect of imposing specific duties or restrictions on a director, or requiring that specific services be provided or not provided by a director, unless an applicable agreement referred to in section 4.3 (4) (b) has that effect.

(2) When providing services in a manner described in section 4.3 (4) (a), a director remains subject to this Act and must act in accordance with applicable laws, including the federal Act and the Canadian Charter of Rights and Freedoms.

(3) If a director considers that it is not possible to act in accordance with applicable laws as described in subsection (2), the director must notify the Indigenous authority and, if requested by the Indigenous authority, provide written reasons to the Indigenous authority.

Disputes relating to Indigenous laws

4.5 In the event of a dispute under this Act about the application of an Indigenous law or whether a director's provision of service is consistent with an Indigenous law,

(a) a director must ensure that the dispute does not disrupt the provision of services under this Act while the dispute is being resolved, and

(b) the director must consult and cooperate with Indigenous authorities to resolve the dispute in a timely manner and must give due consideration to the Indigenous laws, or the Indigenous customs, practices and traditions, of the Indigenous peoples or communities.

20 Sections 12.2 (6) and 12.3 (1) are amended by striking out "19th" and substituting "nineteenth".

(3) For certainty, a child does not need protection in the circumstances described in subsection (1) (d) or (h) solely on the basis of socioeconomic conditions, including the following:

(a) in subsection (1) by striking out "A person who has reason to believe that a child" and substituting "Subject to subsection (1.1), a person who has reason to believe that a child, including an Indigenous child,", and

(1.1) A person who has reason to believe that an Indigenous child needs protection under section 13 and who reports the matter to an Indigenous authority is not required to report the matter to a director, or a person designated by a director, under subsection (1) of this section if the Indigenous authority confirms to the person that the Indigenous authority will assess the information in the report.

(b) if the child is an Indigenous child, to an applicable Indigenous authority. ,

(1.1) The director must not make a determination to refer the report as set out in subsection (1) (b) unless the Indigenous authority confirms that an Indigenous law applies to the child and that the Indigenous authority will assess the information in the report. ,

(c) in the case of a referral to an Indigenous authority, the director must inform the person who made the report that the director has referred the report to the Indigenous authority. ,

(D) if the child is not a First Nation child, a Nisga'a child nor a Treaty First Nation child, the child's Indigenous community;

(d) refer the report, in the case of an Indigenous child, to the applicable Indigenous authority. , and

(2.1) The director must not refer the report to an Indigenous authority as set out in subsection (2) (d) unless the Indigenous authority confirms that

(2.2) If the director refers the report to an Indigenous authority as set out in subsection (2) (d), the director must inform the person who made the report that the director has referred the report to the Indigenous authority.

(2) If a person and any other person, including a director or an Indigenous authority, are unable to resolve a dispute about whether an Indigenous law applies to a matter under this Act, the persons may agree to mediation or other alternative dispute resolution mechanisms as a means of resolving the dispute.

26 Section 32 (1) (a.1) is amended by adding "or 33.05" after "section 33.01 (1)".

Withdrawal of director due to Indigenous law

33.02 Before a presentation hearing, or before the conclusion of a presentation hearing, relating to the removal of a child under section 30, 36 or 42, the director must withdraw from a proceeding in accordance with sections 33.03 to 33.05 if

(i) a written confirmation that the Indigenous authority is or will be providing Indigenous child and family services in accordance with an Indigenous law, and

Withdrawal notification

33.03 (1) If the director receives a confirmation and request from an Indigenous authority under section 33.02 (b), the director must promptly notify the following, if practicable:

(a) each person who is entitled to be informed of the presentation hearing under section 34 (3), 36 (2.1) or 42.1 (3), as applicable;

(b) if applicable, any relevant Indigenous authority other than the Indigenous authority that requested the withdrawal.

(a) indicate that the Indigenous authority that requested the withdrawal is or will be providing Indigenous child and family services in accordance with an Indigenous law, and

(b) provide information about an application that may be made under section 33.04, including the time period for making the application.

Application as to whether Indigenous law applies

33.04 (1) In this section, "applicant" means a director or another person making an application under subsection (2).

(2) The following persons may apply to the court for an order that the Indigenous law referred to in the notification that was provided in accordance with section 33.03 (2) (a) does not apply to the child:

(i) if the child is a First Nation child, a designated representative of the First Nation;

(ii) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(iii) if the child is a Treaty First Nation child, a designated representative of the Treaty First Nation;

(iv) if the child is not a First Nation child, a Nisga'a child nor a Treaty First Nation child but is an Indigenous child, a designated representative of another Indigenous community that has been identified by

(d) any relevant Indigenous authority other than the Indigenous authority that requested the withdrawal.

(a) within 7 days after the date of the notification described in section 33.03 (1), or

(b) within the time period specified by the court, if an extension is granted under subsection (4) of this section.

(4) An applicant may apply to the court for an extension of the period described in subsection (3) (a), but the extension must be sought before the expiry of that period.

(5) The applicant must, at least 12 days before the date of the hearing, serve notice of the application on the director.

(6) The director must, promptly after being served notice under subsection (5) and at least 10 days before the date of the hearing, serve notice of the time, date and place of the hearing of the application on the following:

(i) if the child is a First Nation child, a designated representative of the First Nation;

(ii) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(iii) if the child is a Treaty First Nation child, a designated representative of the Treaty First Nation;

(e) if applicable, any relevant Indigenous authority other than the Indigenous authority that requested the withdrawal;

(f) the Public Guardian and Trustee, if the parent entitled to custody of the child is under 19 years of age.

(7) If the following persons appear at the commencement of the hearing, they are entitled to be parties at the hearing:

(8) The court must, after considering the application of the Indigenous law to the child, order that

(a) the proceedings continue and any interim order, supervision order, temporary custody order or order under section 97 (5) that is in effect continues to apply, or

(b) the Indigenous law applies and the director is to withdraw in accordance with section 33.05 (2).

Transition to Indigenous authority

33.05 (1) The director must, in writing, notify the Indigenous authority referred to in section 33.02 (b) of the following:

(a) if no application is made under section 33.04 (2) before the end of the period described in section 33.04 (3), the information that no application has been made;

(b) any other information the director considers relevant, including if an application has been made and the applicant does not intend to proceed with the application.

(2) After the court orders under section 33.04 (8) (b) that the Indigenous law applies and the director is to withdraw or the director provides the notification under subsection (1) of this section,

(a) the Indigenous authority must provide written confirmation to the director of the date and time that the Indigenous authority will provide, or continue to provide, Indigenous child and family services in relation to the child, and

(b) the director is to withdraw on the date and at the time that the Indigenous authority specified in the confirmation.

(3) A director who withdraws under subsection (2) must present to the court a written report, on the director's reasons for removing the child and on the director's withdrawal, that includes the following:

(b) proof that the director notified each person listed under section 33.03 (1) and, if applicable, the reason a person was not notified;

(4) The director must provide to each person notified under section 33.03 (1) a copy of the report presented to the court.

Cancellation of orders due to withdrawal

33.06 (1) When a director withdraws from a hearing or proceeding under this Division, any interim order, supervision order, temporary custody order or order under section 97 (5) that is in effect when the director withdraws is cancelled.

(2) If an order under section 97 (5) is cancelled under subsection (1) of this section, any arrears owing in respect of that order are not cancelled.

Withdrawal of director due to Indigenous law – after presentation hearing

48.1 At any time after a presentation hearing, the director must withdraw from a proceeding in accordance with sections 48.2 to 48.5 if

(i) a written confirmation that the Indigenous authority is or will be providing Indigenous child and family services in accordance with an Indigenous law, and

Withdrawal notice – after presentation hearing

48.2 (1) If the director receives a confirmation and request from an Indigenous authority under section 48.1 (b), the director must promptly serve notice on the following:

(i) if the child is a First Nation child, a designated representative of the First Nation;

(ii) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(iii) if the child is a Treaty First Nation child, a designated representative of the Treaty First Nation;

(d) if applicable, any relevant Indigenous authority other than the Indigenous authority that requested the withdrawal;

(e) the Public Guardian and Trustee, if the Public Guardian and Trustee is the child's property guardian under section 58;

(f) a person, other than a director, who has custody of a child under an interim order or temporary custody order under this Act.

(a) indicate that the Indigenous authority that requested the withdrawal is or will be providing Indigenous child and family services in accordance with an Indigenous law, and

(b) provide information about an application that may be made under section 48.3, including the time period for making the application.

(3) If the Public Guardian and Trustee is the child's property guardian under section 58, after receipt of notice under subsection (1) (e) of this section, the Public Guardian and Trustee must advise the Indigenous authority that the Public Guardian and Trustee is the child's property guardian.

Application as to whether Indigenous law applies – withdrawal after presentation hearing

48.3 (1) In this section, "applicant" means a director or another person making an application under subsection (2).

(2) A director or a person who is served notice under section 48.2 (1) (b), (c) or (d) may apply to the court for an order that the Indigenous law referred to in the notice that was provided in accordance with section 48.2 (2) (a) does not apply to the child.

(a) within 7 days after the date of the service of the notice under section 48.2 (1), or

(b) within the time period specified by the court, if an extension is granted under subsection (4) of this section.

(4) An applicant may apply to the court for an extension of the period described in subsection (3) (a), but the extension must be sought before the expiry of that period.

(5) The applicant must, at least 12 days before the date of the hearing, serve notice of the application on the director.

(6) The director must, promptly after being served a notice under subsection (5) and at least 10 days before the date of the hearing, serve notice of the time, date and place of the hearing of the application on the following:

(i) if the child is a First Nation child, a designated representative of the First Nation;

(ii) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(iii) if the child is a Treaty First Nation child, a designated representative of the Treaty First Nation;

(e) if applicable, any relevant Indigenous authority other than the Indigenous authority that requested the withdrawal;

(f) the Public Guardian and Trustee, if the Public Guardian and Trustee is the property guardian of the child under section 58;

(g) a person, other than a director, who has custody of a child under an interim order or temporary custody order under this Act.

(7) If the following persons appear at the commencement of the hearing, they are entitled to be parties at the hearing:

(8) The court must, after considering the application of the Indigenous law to the child, order that

(a) the proceedings continue and any interim order, supervision order, temporary custody order or order under section 97 (5) that is in effect continues to apply, or

(b) the Indigenous law applies and the director is to withdraw in accordance with section 48.4 (2).

Transition to Indigenous authority – withdrawal after presentation hearing

48.4 (1) The director must, in writing, notify the Indigenous authority referred to in section 48.1 (b) of the following:

(a) if no application is made under section 48.3 (2) before the end of the period described in section 48.3 (3), the information that no application has been made;

(b) any other information the director considers relevant, including if an application has been made and the applicant does not intend to proceed with the application.

(2) After the court orders under section 48.3 (8) (b) or 48.5 (5) (b) that the Indigenous law applies and the director is to withdraw or the director provides the notification under subsection (1) of this section,

(b) the director is to withdraw on the date and at the time that the Indigenous authority specified in the confirmation.

(3) A director who withdraws under subsection (2) must present to the court a written report on the director's withdrawal that includes the following:

(b) proof that the director served notice to each person entitled to service of the notice under section 48.2 (1) and, if applicable, that the court ordered that no service was required in respect of a person;

Change of circumstances – withdrawal after presentation hearing

48.5 (1) An Indigenous authority may apply to the court for an order that an Indigenous law applies to an Indigenous child if circumstances have changed significantly since the order was made under section 48.3 (8) (a) in relation to the child.

(2) The Indigenous authority must, at least 12 days before the date of the hearing, serve notice of the application on the director.

(3) The director must, promptly after being served a notice under subsection (2) and at least 10 days before the date of the hearing, serve notice of the time, date and place of the hearing of the application on the following:

(b) each party to the proceeding in relation to which the order referred to in subsection (1) was made;

(c) the Public Guardian and Trustee, if the Public Guardian and Trustee is the property guardian of the child under section 58.

(4) If the following persons appear at the commencement of the hearing, they are entitled to be parties at the hearing:

(5) The court must, after considering whether the circumstances have changed significantly since the order was made and the application of the Indigenous law to the child, order that

(a) the proceedings continue and any interim order, supervision order, temporary custody order or order under section 97 (5) that is in effect continues to apply, or

(b) the Indigenous law applies and the director is to withdraw in accordance with section 48.4 (2).

Cancellation of orders due to withdrawal – after presentation hearing

48.6 (1) When a director withdraws from a hearing or proceeding under this Division, any interim order, supervision order, temporary custody order or order under section 97 (5) that is in effect when the director withdraws is cancelled.

(2) If an order under section 97 (5) is cancelled under subsection (1) of this section, any arrears owing in respect of that order are not cancelled.

31 Section 50.01 (b) is amended by striking out "make reasonable efforts to involve, at least on an annual basis, the following" and substituting "consult and cooperate, at least on an annual basis, with the following".

Indigenous authority intention to have custody – continuing custody order

50.02 (1) If an Indigenous authority intends to have custody, under an Indigenous law, of an Indigenous child who is in the continuing custody of the director, the Indigenous authority must provide written confirmation of that intention to

(2) After receiving the confirmation described in subsection (1), the director must promptly serve a notice of the Indigenous authority's intention on the following:

(i) if the child is a First Nation child, a designated representative of the First Nation;

(ii) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(iii) if the child is a Treaty First Nation child, a designated representative of the Treaty First Nation;

(e) if applicable, any relevant Indigenous authority other than the Indigenous authority that provided the confirmation under subsection (1).

(a) indicate that the Indigenous authority will have custody of the child in accordance with an Indigenous law, and

(b) provide information about an application that may be made under section 50.03, including the time period for making the application.

Application as to whether continuing custody order maintained

50.03 (1) In this section, "applicant" means a director or another person making an application under subsection (2).

(2) A director or a person notified under section 50.02 (2) (b), (c), (d) or (e) may apply to the court for an order that the continuing custody order be maintained on the basis that the Indigenous law referred to in the notice that was provided in accordance with section 50.02 (3) (a) does not apply to the child.

(a) within 10 days after the date of the service of the notice described in section 50.02 (2), or

(b) within the time period specified by the court, if an extension is granted under subsection (4) of this section.

(4) An applicant may apply to the court for an extension of the period described in subsection (3) (a), but the extension must be sought before the expiry of that period.

(5) The applicant must, at least 12 days before the date of the hearing, serve notice of the application on the director.

(i) if the child is a First Nation child, a designated representative of the First Nation;

(ii) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(iii) if the child is a Treaty First Nation child, a designated representative of the Treaty First Nation;

(e) if applicable, any relevant Indigenous authority other than the Indigenous authority that provided the confirmation under section 50.02 (1);

(7) If the following persons appear at the commencement of the hearing, they are entitled to be parties at the hearing:

(8) The court must, after considering the application of the Indigenous law to the child, order

(a) that the child remains in the custody of the director under the continuing custody order and that the continuing custody order be maintained, or

(b) that the Indigenous law applies and the continuing custody order is to be cancelled in accordance with section 50.04 (2).

Transition to Indigenous authority having custody

50.04 (1) The director must, in writing, notify the Indigenous authority referred to in section 50.02 (1) of the following:

(a) if no application is made under section 50.03 (2) before the end of the period described in section 50.03 (3), the information that no application has been made;

(b) any other information the director considers relevant, including if an application has been made and the applicant does not intend to proceed with the application.

(2) After the court orders under section 50.03 (8) (b) or 50.05 (5) (b) that Indigenous law applies and the continuing custody order is to be cancelled or the director provides the notification under subsection (1) of this section,

(a) the Indigenous authority must provide written confirmation to the director of the date and time that the Indigenous authority will have custody in relation to the child, and

(b) the continuing custody order is to be cancelled on the date and at the time that the Indigenous authority specified in the confirmation.

(3) After the cancellation of the continuing custody order under subsection (2), the director must present to the court a written report that includes the following:

(b) proof that the director served notice to each person entitled to service of the notice under section 50.02 (2) and, if applicable, that the court ordered that no service was required in respect of a person;

Change of circumstances – continuing custody order

50.05 (1) An Indigenous authority may apply to the court for an order that an Indigenous law applies to an Indigenous child if circumstances have changed significantly since an order was made under section 50.03 (8) (a) in relation to the child.

(2) The Indigenous authority must, at least 12 days before the date of the hearing, serve notice of the application on the director.

(b) each party to the proceeding in relation to which the order referred to in subsection (1) was made.

(4) If the following persons appear at the commencement of the hearing, they are entitled to be parties at the hearing:

(5) The court must, after considering whether the circumstances have changed significantly since the order was made and the application of the Indigenous law to the child, order that

(a) the child remains in the custody of the director under the continuing custody order and that the continuing custody order be maintained, or

(b) the Indigenous law applies and the continuing custody order is to be cancelled in accordance with section 50.04 (2).

Before placement of Indigenous child for adoption

50.06 Before requesting placement of an Indigenous child for adoption, a director must consult and cooperate with the following, as applicable:

(a) if the child is a First Nation child, a designated representative of the First Nation;

(b) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(d) if the child is not a First Nation child, a Nisga'a child nor a Treaty First Nation child, a designated representative of an Indigenous community that has been identified by

(a) in subsection (1) by striking out "A director" and substituting "Subject to section 50.06, a director", and

(b) in subsection (2) by striking out "or" at the end of paragraph (b), by adding ", or" at the end of paragraph (c) and by adding the following paragraph:

(d) in the case of an Indigenous child, the applicable Indigenous governing body has consented.

Dispensing with consent – Indigenous governing body

50.2 (1) On application from a director or a child who is 12 years of age or older, the court may, in the child's best interests, dispense with the consent required under section 50.1 (2) (d).

(2) At least 10 days before the date set for hearing the application, notice of the hearing must be served on the following:

(i) if the child is a First Nation child, a designated representative of the First Nation;

(ii) if the child is a Nisga'a child, a designated representative of the Nisga'a Lisims Government;

(iii) if the child is a Treaty First Nation child, a designated representative of the Treaty First Nation;

(d) the person identified by an applicable Indigenous governing body to accept service of the notice, if not already entitled to notice under paragraph (c).

(3) If a person referred to in subsection (2) appears at the commencement of the hearing, that person is entitled to be a party at the hearing.

Role of Public Guardian and Trustee – Indigenous authority

51.1 (1) If an Indigenous authority seeks to enter into an agreement with the Public Guardian and Trustee for the Public Guardian and Trustee to continue to be an Indigenous child's property guardian, the Indigenous authority must, subject to the regulations, give the Public Guardian and Trustee a notice of intent to enter into the agreement.

(2) If an Indigenous authority enters into an agreement with the Public Guardian and Trustee for the Public Guardian and Trustee to continue to be an Indigenous child's property guardian, the Public Guardian and Trustee may, subject to the regulations, continue to be the child's property guardian in a circumstance where

(a) the Public Guardian and Trustee is the child's property guardian under section 50 (1) (b) or 58, and

(3) For the purposes of section 7 (1) of the Public Guardian and Trustee Act, the continuation of property guardianship by the Public Guardian and Trustee in accordance with an agreement described in subsection (2) of this section is deemed to be an appointment as property guardian under this Act.

(4) When an agreement entered into under subsection (2) terminates, the Public Guardian and Trustee ceases to be the child's property guardian.

(a) in subsection (1) by striking out "or" at the end of paragraph (d) and by adding the following paragraph:

(d.1) the continuing custody order is cancelled under section 50.04 (2) (b), or , and

(b) in subsection (2) (b) by adding "subject to an agreement that continues property guardianship under section 51.1," before "the Public Guardian and Trustee".

38 Section 54.1 (4) is amended by striking out "subsection 2" and substituting "subsection (2)".

39 Section 62 (1) is amended by adding ", other than an order under section 33.04 (8) (b), 48.3 (8) (b), 48.5 (5) (b), 50.03 (8) (b) or 50.05 (5) (b)," after "Part 6".

(a) in subsection (1) by striking out "Sections 74 to 79.1" and substituting "Sections 74 to 79",

(b) in subsection (2) (c) and (d) by striking out "sections 79 and 79.1" and substituting "section 79", and

(a) by striking out "Subject to section 79.1 (5), a person" and substituting "A person", and

(b) in paragraph (a.1) by striking out "24, 79 or 79.1" and substituting "24 or 79".

Limitation on application – Indigenous authority

75.1 Section 75 does not apply to information that is disclosed to the following:

(a.3) made in accordance with an agreement made under this Act, or referred to in Division 1 of Part 7 of this Act, that authorizes or requires the disclosure, , and

Disclosing information to Indigenous authority

79.2 (1) In this section, "public body" has the same meaning as in the Freedom of Information and Protection of Privacy Act.

(2) A public body or director must, on request by an Indigenous authority, disclose to the Indigenous authority information that is

(b) necessary for the provision of Indigenous child and family services under an Indigenous law to an Indigenous child or family.

(3) This section applies despite any other enactment but is subject to a claim of privilege based on a solicitor-client relationship.

Agreements for access to electronic systems

79.3 Subject to the regulations, a director may enter into an agreement with an Indigenous authority to provide to the Indigenous authority access to an electronic system that contains records.

Definitions and interpretation for this Division

"statutory power" has the same meaning as in section 1 of the Judicial Review Procedure Act, but does not include a power or right conferred by this Act to exercise a statutory power of decision;

"statutory power agreement" means an agreement entered into under section 6 of the Declaration on the Rights of Indigenous Peoples Act relating to one or both of the following:

(b) the consent of an Indigenous governing body before the exercise of a statutory power under this Act;

"statutory power of decision" has the same meaning as in section 1 of the Judicial Review Procedure Act.

Agreements in relation to the Declaration on the Rights of Indigenous Peoples Act

89.2 (1) For the purposes of this Act, a statutory power agreement may only be entered into in accordance with subsections (2) and (3).

(3) Section 7 (2) to (5) of the Declaration on the Rights of Indigenous Peoples Act applies to a statutory power agreement.

(4) A single agreement may contain both a decision-making agreement and a statutory power agreement.

Required conditions in agreements

89.3 A decision-making agreement or a statutory power agreement must include conditions on the use, disclosure and security of information that is provided under the agreement to an Indigenous governing body.

Effect of agreements

89.4 If a decision-making agreement or a statutory power agreement has been entered into,

(a) the statutory power of decision or the statutory power, as applicable, must be exercised in accordance with the agreement,

(i) terms identifying the person who is exercising, or providing consent in relation to, a statutory power of decision or a statutory power in accordance with an agreement;

(ii) terms relating to the criteria or procedures for the exercise of, or consent in relation to, a statutory power of decision or a statutory power in accordance with an agreement.

Minister's authority to enter into agreements

90 (1) For the purposes of this Act, the minister may enter into an agreement with any of the following:

(f) the government of Canada, the government of a province of Canada or the government of a jurisdiction outside Canada, or an official or agency of any of those governments;

(g) Community Living British Columbia established under the Community Living Authority Act;

(2) An agreement entered into under subsection (1) may provide for the manner in which a director must exercise powers and perform duties and functions.

(b) in subsection (1) by striking out "An Act respecting First Nations, Inuit and Métis children, youth and families (Canada)" and substituting "the federal Act", and

(a) must include conditions on the use, disclosure and security of information that is provided under the agreement to an Indigenous governing body, and

Definitions for this Division

"amending agreement" means an agreement made in accordance with section 90.5 (2) (a) that sets out amendments to the Nisga'a Final Agreement or the final agreement of a Treaty First Nation, as applicable, to include the law-making authority for making an Indigenous law with application in British Columbia,

(b) in the case of the Treaty First Nation, outside the treaty lands of the Treaty First Nation;

"enabling agreement" means an agreement made in accordance with section 90.5 (2) (b) in relation to the recognition of the law-making authority of the Nisga'a Nation or a Treaty First Nation to make an Indigenous law with application in British Columbia,

(b) in the case of the Treaty First Nation, outside the treaty lands of the Treaty First Nation.

Purpose for this Division

90.3 The purpose of this Division is to set out processes to enable the Nisga'a Nation and Treaty First Nations to exercise law-making authority in British Columbia in relation to the following, in addition to the authority in the Nisga'a Final Agreement or the final agreements of Treaty First Nations:

(a) in the case of an Indigenous law of the Nisga'a Nation, in relation to Indigenous child and family services provided outside the Nisga'a Lands;

(b) in the case of Indigenous laws of the Treaty First Nations, in relation to Indigenous child and family services provided outside the treaty lands of the Treaty First Nations.

Negotiation

90.4 After a request from the Nisga'a Nation or a Treaty First Nation to enter into an agreement under this Division, the government must make all reasonable efforts to negotiate and attempt to reach agreement with the Nisga'a Nation or the Treaty First Nation.

Indigenous laws – force of law

90.5 (1) Subject to subsection (2), an Indigenous law of the Nisga'a Nation or a Treaty First Nation, as applicable, has the force of law and applies,

(a) in the case of the Indigenous law of the Nisga'a Nation, to Indigenous child and family services provided outside Nisga'a Lands, and

(b) in the case of the Indigenous law of the Treaty First Nation, to Indigenous child and family services provided outside treaty lands of the Treaty First Nation.

(2) Subsection (1) applies to the Nisga'a Nation or a Treaty First Nation, as applicable, if,

(i) the Nisga'a Nation or the Treaty First Nation enters into the amending agreement with

(ii) the following requirements are met in respect of the amendment of the Nisga'a Final Agreement or the final agreement of the Treaty First Nation, as applicable:

(A) a resolution consenting to the amendment is passed by the Legislative Assembly;

(B) the amending agreement includes an effective date of the amendment that is on or before the date of the consent to the amendment by the government of Canada by order of the Governor General in Council;

(i) the Nisga'a Nation or the Treaty First Nation enters into the enabling agreement

(B) if the enabling agreement includes recognition of an inherent right, with the government of Canada,

Effective date

90.6 The law-making authority described in section 90.5 (1) may be exercised by the Nisga'a Nation or a Treaty First Nation, as applicable,

(a) in the case of an amending agreement, from the date that is the latest of the following dates:

(i) the date that the Nisga'a Nation or the Treaty First Nation consents to the amendment of the Nisga'a Final Agreement or the final agreement of the Treaty First Nation;

(ii) the date of the resolution referred to in section 90.5 (2) (a) (ii) (A) being passed by the Legislative Assembly;

(iii) a date set out in the amending agreement that is later than the dates referred to in subparagraphs (i) and (ii) of this paragraph, and

(b) in the case of an enabling agreement, from the date of publication in the Gazette under section 90.5 (2) (b) (ii) or a later date set out in the enabling agreement.

No limit upon lawmaking

90.7 The application of this Division in respect of an amending agreement or an enabling agreement entered into by the Nisga'a Nation or a Treaty First Nation does not limit or otherwise abrogate or derogate from the law-making authority under the Nisga'a Final Agreement or the final agreement of the Treaty First Nation, as applicable.

Conflict or inconsistency

90.8 To the extent of any conflict or inconsistency between this Division and a provision that sets out the prevailing nature of the Nisga'a Final Agreement or the final agreement of a Treaty First Nation, or of the relevant settlement legislation, this Division applies despite that provision if the Nisga'a Nation or the Treaty First Nation, as applicable, has entered into an agreement under this Division, until such time as the Nisga'a Final Agreement or the final agreement of the Treaty First Nation provides for the authority described in section 90.5 (1) (a) or (b).

Designation of Provincial Director of Child Welfare

91.1 (1) Subject to the regulations, the minister may designate a person to be the Provincial Director of Child Welfare for the purposes of

(b) a provision of another Act that contains a reference to a director under this Act.

(2) The powers, duties and functions of the Provincial Director of Child Welfare include any prescribed powers, duties and functions.

(3) Section 91 (2) to (4) applies in respect of the Provincial Director of Child Welfare.

Designation of Indigenous Child Welfare Director

91.2 (1) Subject to the regulations, the minister may designate a person to be the Indigenous Child Welfare Director for the purposes of

(b) a provision of another Act that contains a reference to a director under this Act.

(2) Subject to the regulations, a designation under subsection (1) must be made in consultation and cooperation with Indigenous peoples in British Columbia whose rights or interests may be affected by the designation.

(3) The powers, duties and functions of the Indigenous Child Welfare Director include

(a) responsibility for providing advice and guidance to other directors in exercising their powers and performing their duties and functions to ensure services are provided to Indigenous children and families under this Act in accordance with the principles and duties set out in section 3 and in Part 1.1, and

(4) Section 91 (2) to (4) applies in respect of the Indigenous Child Welfare Director.

(b) in subsection (2) (a) by striking out "to involve the First Nation, Nisga'a Nation, Treaty First Nation or Indigenous community in" and substituting "to consult and cooperate with the First Nation, Nisga'a Nation, Treaty First Nation or Indigenous community about".

54 Section 96 (3) is amended by striking out "the Freedom of Information and Protection of Privacy Act or".

Provincial Court jurisdiction – dispute resolution

99.1 For the purpose of conferring jurisdiction related to an Indigenous law, the court has jurisdiction in relation to a legal dispute arising under an Indigenous law if the Indigenous law provides for that jurisdiction.

Immunity from legal proceedings

101 (1) Subject to subsection (2), no legal proceeding for damages lies or may be commenced or maintained against a person because of anything done or omitted

(2) Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted in bad faith.

(3) Subsection (1) does not absolve the government or an Indigenous governing body from vicarious liability arising out of anything done or omitted by a person referred to in that subsection for which the government or the Indigenous governing body would be vicariously liable if this section were not in force.

(h.1) respecting any matters that relate to the continuation or termination of property guardianship by the Public Guardian and Trustee in accordance with agreements with Indigenous authorities under sections 51.1 and 53;

(h.2) respecting agreements for access to electronic systems under section 79.3;

(q.01) prescribing the powers, duties and functions of the Provincial Director of Child Welfare under section 91.1 (2);

(q.02) respecting the designation of the Indigenous Child Welfare Director under section 91.2;

(q.03) prescribing the powers, duties and functions of the Indigenous Child Welfare Director under section 91.2 (3);

58 Section 16 (3) of the Infants Act, R.S.B.C. 1996, c. 223, is amended by striking out "or" at the end of paragraph (a), by adding "or" at the end of paragraph (b) and by adding the following paragraph immediately after paragraph (b):

(b.1) who was, until reaching 19 years of age, under the property guardianship of the Public Guardian and Trustee in accordance with an agreement entered into under section 51.1 of the Child, Family and Community Service Act .

59 Section 7.1 (b) of the Public Guardian and Trustee Act, R.S.B.C. 1996, c. 383, is amended by striking out "or" at the end of subparagraph (i), by adding "or" at the end of subparagraph (ii) and by adding the following subparagraph:

(iii) was under the property guardianship of the Public Guardian and Trustee in accordance with an agreement entered into under section 51.1 of the Child, Family and Community Service Act, .

Commencement

60 This Act comes into force by regulation of the Lieutenant Governor in Council.

3rd Session, 42nd Parliament (2022) THIRD READING

BILL 38 – 2022

INDIGENOUS SELF-GOVERNMENT IN CHILD AND FAMILY SERVICES AMENDMENT ACT

Best interests of child – Indigenous children

Self-government principle

Before placement of Indigenous child for adoption

Definitions and interpretation for this Division

Agreements in relation to the Declaration on the Rights of Indigenous Peoples Act

Required conditions in agreements

Effect of agreements

Immunity from legal proceedings

Self-government principles

Indigenous laws prevail in relation to Indigenous child and family services

Duties respecting Indigenous children

Considerations in relation to duties and the provision of services

Disputes relating to Indigenous laws

Withdrawal of director due to Indigenous law

Withdrawal notification

Application as to whether Indigenous law applies

Transition to Indigenous authority

Cancellation of orders due to withdrawal

Withdrawal of director due to Indigenous law – after presentation hearing

Withdrawal notice – after presentation hearing

Application as to whether Indigenous law applies – withdrawal after presentation hearing

Transition to Indigenous authority – withdrawal after presentation hearing

Change of circumstances – withdrawal after presentation hearing

Cancellation of orders due to withdrawal – after presentation hearing

Indigenous authority intention to have custody – continuing custody order

Application as to whether continuing custody order maintained

Transition to Indigenous authority having custody

Change of circumstances – continuing custody order

Before placement of Indigenous child for adoption

Dispensing with consent – Indigenous governing body

Role of Public Guardian and Trustee – Indigenous authority

Limitation on application – Indigenous authority

Disclosing information to Indigenous authority

Agreements for access to electronic systems

Definitions and interpretation for this Division

Agreements in relation to the Declaration on the Rights of Indigenous Peoples Act

Required conditions in agreements

Effect of agreements

Minister's authority to enter into agreements

Definitions for this Division

Purpose for this Division

Negotiation

Indigenous laws – force of law

Effective date

No limit upon lawmaking

Conflict or inconsistency

Designation of Provincial Director of Child Welfare

Designation of Indigenous Child Welfare Director

Provincial Court jurisdiction – dispute resolution

Immunity from legal proceedings

Commencement

3rd Session, 42nd Parliament (2022)
THIRD READING

INDIGENOUS SELF-GOVERNMENT IN CHILD
AND FAMILY SERVICES AMENDMENT ACT