First Nation Rights To Impact Decision-making In Saskatchewan CFS Child Protection Hearings

To date, 10 First Nations in Saskatchewan have formally given notice to Canada and Saskatchewan that they intend to exercise their inherent jurisdiction over Child and Family SIt iervices ("CFS") through the Bill C-92 framework. Several other First Nations in Saskatchewan are also already working on revitalizing or developing their own CFS law. Reclaiming inherent jurisdiction over child and family well-being is a journey that takes time.

First Nations have the right to have their voice heard right now in the Saskatchewan CFS Court system.

Involvement in Saskatchewan CFS child protection hearings can be a key component of the transition for a First Nation during the period before its own CFS law comes into effect. In addition, amendments have been made to Saskatchewan CFS legislation to more closely align with An Act respecting First Nations, Inuit and Métis children, youth and families ("Bill C-92").

Under The Child and Family Services Act (the "CFSA"), a First Nation has the right to:

• receive notice of every child protection hearing involving a child from their First Nation; and
• party status in every child protection hearing involving a child from their First Nation.

This is an important expansion of First Nation rights under Saskatchewan CFS legislation.

Previously, under the CFSA, a First Nation was only entitled to notice and party status if a permanent or long-term wardship order was being sought. Now, the Chief, Chief's designate or agency is entitled to notice for all protection hearings involving their Indigenous children and are deemed to be a party of the protection hearings. Bill C-92 also provides that the Indigenous Governing Body has the right to make representations in child protection hearings.

How to participate in CFS child protection hearings

Having party status generally provides full participatory rights throughout child protection hearings, settlement conferences and at trial, including the right to make recommendations, receive disclosure of evidence and make legal submissions to the Court.

Bill C-92 also provides that a First Nation has the right to make representations to a Court. This has been interpreted to include a right to provide information to the Court regarding a First Nation's culture, customs, traditions and values and to make recommendations to the Court regarding the outcome of the child protection hearing. This can also include the First Nation's recommendation on how to keep its children connected to their family, First Nation, land and culture.

A First Nation may be represented by legal counsel, the Chief or another designated individual, such as the First Nation Representative.

Importance of involvement in child protection hearings

The involvement of First Nations in CFS proceedings may impact the outcome of a child protection hearing, including by assisting the Court in making a more informed and culturally sensitive decision. It also allows the First Nation to ensure that their community's concerns are represented when their children have been, or are at risk of, being apprehended.

By participating in CFS court proceedings, a First Nation may impact decisions made and actions taken involving its children, youth, young adults and families – even if the First Nation has not yet exercised its inherent right of self-government over CFS by revitalizing or making its own CFS law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.