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Aboriginal Children and Child Welfare

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Title: Aboriginal Children and Child Welfare


1
Aboriginal Children andChild Welfare
  • An Overview of Recent Changes
  • Kim Hart Wensley, UVIC Faculty of Law, May 2006

2
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.

3
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

4
Canadian Royal Commission on Aboriginal Peoples,
Gathering Strength, 1996
  • Children are the future of Aboriginal communities
    repositories and transmitters of culture and
    identity

5
Historical Context
  • Consider the debilitating effects of past
    policies and practices
  • Residential Schools
  • 60s Scoop and adoption into non-Aboriginal
    homes

6
Ongoing Challenges
  • Internalized oppression
  • Family violence
  • Poverty and unemployment
  • Fetal Alcohol Syndrome
  • Suicide

7
Ongoing Challenges
  • Racism and cultural insensitivity
  • Capacity-building, education and training
  • Funding
  • Autonomy and self-determination

8
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

9
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

10
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

11
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

12
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?

13
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

14
  • 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

15
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

16
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

17
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

18
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

19
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

20
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.

21
  • 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

22
  • 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

23
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)

24
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

25
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

26
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.

27
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.

28
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)

29
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

30
  • 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

31
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?

32
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

33
Jurisdictional and Funding Issues
  • Constitution Act, 1867
  • Indian Act, s.88
  • Policy Directive 20-1
  • Bilateral and Tripartite agreements

34
Various Models
  • British Columbia
  • Alberta
  • Ontario
  • Manitoba

35
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)

36
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

37
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

38
Complete autonomy?
  • BUT, the Minister remains responsible for
  • Setting provincial objectives, priorities and
    standards
  • Allocating funding to Authorities
  • Monitoring and assessing Authorities

39
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?
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