Aboriginal Children and Child Welfare

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Aboriginal Children andChild Welfare

• An Overview of Recent Changes
• Kim Hart Wensley, UVIC Faculty of Law, May 2006

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Calling Forth Our Future, Report of the BC Union
of Indian Chiefs, 2002

• In our children we call forth our future and
  survival as peoples
• Our self-determination is embodied in our
  children, and our continued existence as peoples
  requires the right to pass on our heritage, laws,
  culture and knowledge through our children.

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Bringing Them Home

• Unless we are given the right and we are
  entrusted and given the opportunity to build up
  mechanisms within our communities to deal with
  these issues there is no end in sight
• Bringing Them Home, Australia 1997

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Canadian Royal Commission on Aboriginal Peoples,
Gathering Strength, 1996

• Children are the future of Aboriginal communities
  repositories and transmitters of culture and
  identity

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Historical Context

• Consider the debilitating effects of past
  policies and practices
• Residential Schools
• 60s Scoop and adoption into non-Aboriginal
  homes

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Ongoing Challenges

• Internalized oppression
• Family violence
• Poverty and unemployment
• Fetal Alcohol Syndrome
• Suicide

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Ongoing Challenges

• Racism and cultural insensitivity
• Capacity-building, education and training
• Funding
• Autonomy and self-determination

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Children in Care - Statistics

• 1980-1981
• 4.6 of all First Nations children are in agency
  care
• 1992-1993
• 4.1 of all First Nations children are in agency
  care

• In contrast, only 0.96 of all children in Canada
  are in agency care
• In contrast, only 0.6 of all children in Canada
  are in agency care

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Subsequent Statistics

• Alberta - 1994
• 9 of children in province are First Nations 50
  of children in care are First Nations
• Manitoba 2001
• 21 but 78
• British Columbia- 2002
• 8 but 43

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Two Legislative Reactions

• Legislative change by tinkering at the edges
  best interests, notice, and culturally-appropriate
  placements
• Legislative change by delegating responsibility
  for development and delivery of services but
  not ultimate financial and legal authority

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Legislative Change Tinkering at the Edges of
the Problem

• Culture and heritage as part of the best
  interests test
• Notify and involve Bands in protection
  proceedings
• Prefer placements with Aboriginal families

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Legislative tinkering

• Are these sensitizing measures simply a
  distraction?
• Or do they represent a fundamental shift that has
  or will result in better outcomes for Aboriginal
  children?

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A. Legislative Recognition ofAboriginal Culture
and Heritage

• British Columbia, Child Family and Community
  Service Act, Guiding Principles and s. 4(2) if
  the child is aboriginal, the importance of
  preserving the childs identity
• Prince Edward Island, Child Protection Act,
  Preamble and s. 2(2)
• Nova Scotia, Children and Family Services Act, s.
  3(2)(g) consider childs cultural, racial and
  linguistic heritage

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• Saskatchewan, Child and Family Services Act, s.
  4(c)
• Quebec, Youth Protection Act, s.2.4
• Albertas new Child Youth and Family Enhancement
  Act refers to the uniqueness of Aboriginal
  culture, heritage, spirituality and traditions,
  and the importance of preserving the childs
  cultural identity

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The danger of decontextualizing the child do
these fears have merit?

• In applying the best interests test courts may
• Deny the relevance of First Nations heritage or
  assign it little weight
• Treat First Nations culture and heritage as an
  abstract category
• Misunderstand the bond the child has through his
  or her culture and the stability that creates
• Assume that band and family interests are
  separate from or in conflict with those of the
  child

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Case Law Culture v. Bonding

• Racine v. Woods (1983) (SCC)
• The significance of a childs cultural background
  and heritage, as opposed to bonding, abates over
  time
• But see D.H. v. H.M. (1998) (BCCA) (1999) (SCC)
  a custody case

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Ethnocentric attitudes Aboriginal culture
mentioned but trumped?

• Kenora-Patricia Child and Family Services v. L.P.
  and S.P. (2001)
• Care by paternal aunt rejected
• Kenora-Patricia Child and Family Services v. D.O.
  (2001)
• Foster care by members of childs band rejected

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A consideration but not determinative

• Alberta (Director of Child Welfare) v. Y (2001)
• Blood Bands application for an adjournment
  dismissed
• Bands are jealous and guard membership
• Best interests of the child outweigh any
  political considerations
• Connection with siblings outweighs question of
  whether childs affiliation should be Siksika or
  Blood

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Misunderstood values, traditions and cultural
practices?

• Extended family parenting
• Mobility of children
• Autonomy of children
• Fluidity of culture and identity
• Minimize importance of the collective

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Growing judicial sensitivity culture is lived
not a thing

• EJT v. PMVP and TVP (1996) (Man. C.A.)
• no authority is required to make a convincing
  argument that culture and heritage are
  significant factors in the development of a human
  beings most fundamental and enduring attributes
  they are the stuff from which a persons
  identity and sense of self are developed.

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• Winnipeg v. M.S.N. 2002 MBQB 86
• They paternal grandparents are his blood, his
  race and Aboriginal heritage although they have
  assimilated many aspects of white urban culture
  into their lives, they will teach the child
  who he is

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• Nova Scotia (Minister of Community Services) v.
  R.F.L. (2001)
• While the mother has failed herself to become
  immersed in Native culture, this does not in any
  way make it less important to the children

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B. Legislated Notice to Bands

• British Columbia, Child Family and Community
  Service Act, s.38(1)
• Nova Scotia, Children and Family Services Act, s.
  37(3)
• Saskatchewan, Child and Family Services Act,
  s.23(1)(b)

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Involvement of Bands Are they simply
self-interested and political?

• Re W (C.K.) (2002) (YKTC)
• This is not the proper forum for the Selkirk
  First Nation to raise concerns about past or
  future dealings with the Director
• The hearing must not be sidetracked by political
  issues
• Despite being granted standing, the Band did not
  appear at the hearing and did not make any
  submissions

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Caught in the middle?

• Re R.T. (2004) (Sask QB)
• Policy that First Nations children will not be
  placed for adoption without agreement of Band
  Band does not consent
• However good a foster home, it is no substitute
  for permanent home or family.
• Children become victims of a system meant to
  help and support them

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Caught in the middle?

• Winnipeg (Child and Family Services) v. M.A.,
  2002 MBQB 209
• this child is being denied her right to a
  permanent, secure family because the aboriginal
  agency and the bands community committee have
  vetoed any such placement
• arises from a desire to stop removal of
  aboriginal children from their cultural heritage.

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Is it a tragedy or consistent with traditional
parenting practice?

• While a laudable goal, its dogmatic application
  is counterproductive and unfair.
• The tragedy in this case is that the best plan
  for the child adoption by non-Aboriginal family
  ... has been rejected for historical and
  political reasons that have nothing to do with
  her case.

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C. Legislated or Policy Preference for
Placement with Aboriginal Families

• Legislation is explicit or implicit re
  preference for placements with Aboriginal
  families but whose responsibility is it to find
  such a placement?
• British Columbia, s.2(f), s.3(b) and s.71(3)
• Nova Scotia, s. 9(i), s.20(d), s. 39(8)(c),
  s.42(3), s.44(3)(c), s.47(5)

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Placement in Aboriginal Homes

• Re AG (1999) (Quebec, Youth Div.)
• Failure to place children in an Algonquin family
  violates the fundamental principles of the
  statute and fails to respect the rights of
  children

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• Alberta (Director of Child Welfare) v. Y (2001)
  (Alta. Prov. Ct.)
• Order for permanent guardianship in
  non-Aboriginal family
• Siksika Child and Family Services is not a search
  organization they have to rely upon the
  initiative of the childs family to find
  affiliated placements

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The Winds of Change - Handing Over Responsibility
to First Nations

• Establish First Nations child welfare agencies
  with jurisdiction
• On-reserve?
• Off-reserve?
• Both?
• Definition of Aboriginal child?

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Aboriginal Child Welfare Agencies

• 450,000 First Nations people on reserve and
  28,000 off-reserve in Canada are served by native
  controlled child welfare agencies
• Report of Aboriginal Justice Inquiry of
  Manitoba, 1991

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Jurisdictional and Funding Issues

• Constitution Act, 1867
• Indian Act, s.88
• Policy Directive 20-1
• Bilateral and Tripartite agreements

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Various Models

• British Columbia
• Alberta
• Ontario
• Manitoba

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Manitoba - Unprecedented in Canada

• Child and Family Services Authorities Act, S.M.
  2002, c.35
• (cif November 2003)
• Creates four new child and family service
  Authorities to organize, and manage delivery of
  services (two First Nations, one Metis, one
  general)

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Manitoba Model

• Each Authority will be responsible for
• Ensuring culturally appropriate standards for
  services and practices are developed (but
  consistent with provincial standards)
• Delegating, monitoring and assessing service
  delivery

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Manitoba Model

• Authorities deliver services to any Aboriginal or
  Metis person living within the province (whether
  on or off reserve) who is a member of, or
  identifies with, a community falling within the
  Authoritys jurisdiction

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Complete autonomy?

• BUT, the Minister remains responsible for
• Setting provincial objectives, priorities and
  standards
• Allocating funding to Authorities
• Monitoring and assessing Authorities

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Operating in the shadow of federal and provincial
governments

• Develop and administer services in accordance
  with provincial laws and standards vs.
  traditional customs and practices or is there
  room to do both?
• Balance individual and collective rights
• Capacity building - initiatives to create and
  support healthier communities
• Self-government will anything less suffice?