Canada’s journey toward meaningful reconciliation with Indigenous peoples hinges on the effectiveness of legislative and policy tools designed to redress past harms and recognize inherent rights. Two pivotal instruments in this landscape are Bill C-92, which overhauled Indigenous child welfare, and the federal UNDRIP Act, which commits Canada to the principles of the United Nations Declaration on the Rights of Indigenous Peoples. Yet despite their promise, questions linger: are these frameworks robust enough to overcome entrenched colonial structures, or have they been set up to stumble? Sara Mainville of the Macdonald-Laurier Institute dissects the interplay between Bill C-92 and UNDRIP, exposing key gaps that risk undermining the very reconciliation they seek to advance.
Decoding Bill C-92 and UNDRIP
Enacted in June 2019, Bill C-92 amended the Indian Act to grant First Nations, Inuit, and Métis communities greater authority over child and family services. It recognizes “customary care” and affirms the principle that keeping Indigenous children connected to their culture is paramount. Meanwhile, the federal UNDRIP Act (Bill C-15), passed in 2021, commits Canada to harmonize its laws with UNDRIP’s overarching standards—among them, free, prior, and informed consent (FPIC) and the right of self-determination.
On paper, these reforms signal a shift from assimilationist policies toward respect for Indigenous legal orders. Bill C-92 aims to reduce the disproportionate number of Indigenous children in state care, while the UNDRIP Act seeks to transform project approvals, resource development, and legislative interpretations through an Indigenous rights lens. However, translating lofty declarations into operational reality involves navigating complex constitutional, jurisdictional, and fiscal fault lines—terrain where good intentions can falter.
The Gaps in Canada’s Reconciliation Toolkit
- Ambiguous language: Both bills rely on terms like “customary law” and “due diligence” without clear, enforceable definitions, leaving provinces and communities to interpret key concepts in isolation.
- Jurisdictional confusion: Child welfare powers are split among federal, provincial, and Indigenous authorities. Overlapping roles can stall decision-making and create accountability vacuums.
- Funding shortfalls: Without sustained, predictable funding, Indigenous agencies struggle to design and implement culturally appropriate services envisioned by Bill C-92.
- Colonial legal framework: Both reforms operate within Canada’s existing constitutional structure, which historically subordinates Indigenous legal orders. This limits the transformational potential of renewed partnerships.
How Well-Intentioned Tools Can Be Set up to Fail
Sara Mainville warns that reconciliation frameworks often assume Indigenous communities can simply “plug in” to state apparatuses while retaining full self-governing authority. In practice, however, the state’s entrenched norms—court procedures, funding formulas, regulatory reviews—drive the process. For example, the UNDRIP Act mandates consideration of FPIC but lacks a concrete dispute-resolution mechanism. If governments interpret FPIC narrowly or bypass consultations, affected communities have little recourse beyond lengthy litigation.
Similarly, Bill C-92’s recognition of “customary care” does not automatically translate into the power to enforce community-based child welfare laws. Without formal agreements and clarity on resource allocation, provinces may continue to override local standards in the name of “best interests,” perpetuating the very system Bill C-92 intends to dismantle. The result is a patchwork of pilot projects, memorandums of understanding, and goodwill accords that can stall or collapse when administrations change.
Pathways to Strengthen Reconciliation Mechanisms
- Define and codify critical terms: Collaboratively develop clear, binding definitions for “customary law,” “due diligence,” and “free, prior, informed consent” within federal and provincial legislation.
- Co-develop implementation frameworks: Establish tripartite tables—including Canada, provincial/territorial governments, and Indigenous nations—to co-author regulations, funding agreements, and accountability protocols.
- Ensure long-term, predictable funding: Shift from ad hoc contributions to multi-year, indexed transfers that empower communities to build sustainable child welfare and consent-based resource regimes.
- Embed independent oversight: Create an Indigenous-led ombudsperson or review body with powers to investigate breaches, issue recommendations, and ensure compliance with both Bill C-92 and UNDRIP commitments.
- Invest in capacity building: Support legal education, governance training, and infrastructure development within Indigenous nations so they can design, enact, and enforce their own laws.
Conclusion
Bill C-92 and the UNDRIP Act represent watershed moments in Canada’s pursuit of reconciliation, reflecting a move away from assimilation toward respect for Indigenous agency. Yet, as Sara Mainville’s analysis makes clear, these tools risk underachievement unless structural gaps are addressed. Vague statutory language, overlapping jurisdictions, funding insecurity, and reliance on colonial legal frameworks threaten to undermine progress. Strengthening these instruments will require genuine partnership: co-designed legislation, enforceable standards, transparent oversight, and stable resourcing. Only by rectifying these design flaws can Canada ensure that its reconciliation tools fulfill their promise rather than repeat the historical failures they aim to overcome.
