British Columbia Law

Indigenous Children and BC's Child Protection System

By Andrew Liggett, Sea to Sky Law, New Westminster, BC

Indigenous children in BC are significantly over-represented in the child welfare system — a legacy of colonization, the residential school system, and decades of discriminatory policy.

Both the provincial *Child, Family and Community Service Act* (CFCSA) and the federal *Act respecting First Nations, Inuit and Métis children, youth and families* (Bill C-92, 2020) now contain specific protections and rights for Indigenous children and their communities.

BC's Duty to Notify Indigenous Communities

Under the CFCSA, when MCFD or a delegated agency becomes involved with an Indigenous child, they must give notice to the child's Indigenous community or Nation. This allows the community to participate in decisions about the child's care and to propose culturally appropriate alternatives to mainstream foster care.

The Principle of Cultural Connection

The CFCSA states that, where possible, an Indigenous child who cannot remain at home should be placed with:

1. A member of the child's extended family
2. A member of the child's Indigenous community
3. Another Indigenous family that shares the child's culture

Only if none of these options are available should a non-Indigenous placement be considered. This reflects the Supreme Court of Canada's recognition that cultural disconnection causes lasting harm to Indigenous children.

Delegated Indigenous Agencies

Many First Nations in BC have their own child and family service agencies delegated under the CFCSA — meaning they carry out child protection functions for their communities. Examples include:

• Xyolhemeylh (Fraser Valley Indigenous Child and Family Services)
• Métis Family Services
• Lalum'utul' Smun'eem (Cowichan Tribes)
• And dozens more across BC

These agencies have authority to investigate reports, provide family support services, and apply for child protection orders — just as MCFD does.

Federal Law: Bill C-92 (2020)

Canada's *Act respecting First Nations, Inuit and Métis children, youth and families* came into force in 2020 and recognized for the first time that Indigenous peoples have jurisdiction over child and family services for their children. Key principles include:

• The best interests of the child must take cultural identity into account
• Indigenous peoples have the right to make laws governing child and family services
• Provincial laws still apply, but must be interpreted consistently with Indigenous jurisdiction

Several First Nations in BC have already begun exercising jurisdiction under Bill C-92 — a process that is ongoing and evolving.

What Rights Do Indigenous Families Have?

• The right to be notified when MCFD is involved with their child
• The right to have their community participate in court proceedings
• The right to propose culturally appropriate care arrangements
• The right to legal representation (Legal Aid BC)
• The right to have culture, language, and community connection considered at every stage

If Your Child Is Removed

If your Indigenous child has been removed, contact your Nation or Indigenous community as soon as possible. Your community may have the right to intervene in court proceedings and to propose a care plan. A family lawyer who understands both provincial and federal Indigenous child welfare law can make a significant difference.

Historical Trauma and Current Rights

The over-representation of Indigenous children in care is not a reflection of parenting quality — it is a structural outcome of poverty, inadequate housing, and the intergenerational effects of residential schools and the Sixties Scoop. The legal system has increasingly recognized this.

Courts now consider systemic factors when assessing the "best interests" of an Indigenous child and are less likely to accept removal as the first response.

Resources

• First Nations Health Authority: fnha.ca
• Legal Aid BC (Indigenous services): lss.bc.ca
• BC Association of Aboriginal Friendship Centres: bcaafc.com
• Your local delegated Indigenous agency (search at mcf.gov.bc.ca)

This article is general information, not legal or tax advice. Meetings are by appointment only, by phone or secure video.