(Image credit: Louise Brown, Toronto Star, "A study in First Nations 101" (June 20, 2006) online: canadiancrc.com/Newspaper_Articles/Tor_Star_First_Nations_101_20JUN06.aspx)
Tansi Nîtôtemtik,
Today’s post continues our assessment of TRC Call to Action #4, specifically in relation to the following requirements of the national standard for Indigenous child welfare:
ii. Require all child-welfare agencies and courts to take the residential school legacy into account in their decision making.
iii. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate.
The Residential School Legacy
While the last Residential School officially closed its doors in 1996,[1] the legacy lives on. The number of Indigenous children in government care currently triples the number of those in residential schools at the height of their operation.[2]
Canada’s systemic removal of Indigenous children from their families, culture and communities through the Residential School system has resulted in generations of shared trauma, abuse and disconnection from culture. The impact of the Residential School system underlies a significant amount of child protection involvement.[3] Therefore, it is unrealistic for child welfare agencies and courts not to take the Residential School legacy into consideration when making decisions regarding Indigenous children.
The preamble of The Act Respecting First Nations, Inuit and Métis Children, Youth and Families[4] recognizes TRC Call to Action #4 by recognizing the harm caused by Residential Schools. However, as noted in the Yellowhead Institute Paper, “an acknowledgment is not a commitment to do any particular thing.”[5] A statutory requirement that child welfare agencies and courts consider the impact of Residential Schools is a governmental commitment to healing that goes beyond the hollow recognition in the Act .
Indian Child Welfare Act:[6] The Gold Standard
The United States enacted the Indian Child Welfare Act (CWFA) in 1978, in response to overrepresentation of Indigenous children in the child welfare system. The CFWA is exemplary as it empowers Indigenous communities with inherent jurisdiction to resolve matters involving children in need of care.[7]
When determining the best course of action for an Indigenous child, the ICWA requires US courts to consider the following:
- A genuine desire from the biological parents to place an Indigenous child in care.[8]
- Active efforts to keep the family together (e.g. rehabilitative programs) to be unsuccessful before any placement is ordered. [9]
- A higher burden of proof to require placement/adoption.[10]
- A legislated order for placement to keep the child close to their family and community.[11]
Placement of children in care
“...the significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond that develops with the prospective adoptive parents the less important the racial element becomes.”[12]
The above statement from the 1983 Supreme Court decision, Racine v Woods demonstrates the problematic thinking which led to the separation of generations of Indigenous families. In Woods, the Court ruled that it would be in the best interests of Leticia Racine, a seven-year-old girl, to stay with her non-Indigenous adoptive parents rather than with her Indigenous mother.
Under the new legislation, Indigenous child placement is determined under a priority system with parents first, other family members, other community members, another Indigenous family, and finally, any other adult. However, there is a caveat--the priority system is only used to the extent that it is consistent with the best interests of the child.[13] As jurisdiction is an area of ambiguity in the Act (see yesterday’s post for discussion), interpretation of BIOC in the context of Indigenous child welfare raises concerns.[14] What standards will be used to determine BIOC? Can federal and provincial governments unilaterally override decisions about the best interests of Indigenous children?
Quebec has challenged the Act on grounds of exclusive provincial jurisdiction over Indigenous child welfare matters.[15] Other Canadian courts have begun to apply the principles of the Act. Generally, it appears that courts consider the federal nature of the Act as paramount to provincial legislation,[16] However some courts have failed to consider the placement priority in the Act if alternatives were not presented, perpetuating the removal of children from family and community.[17] Although we are only eight months into the new legislation, some positive change seems to be coming from its application.
1Union of Ontario Indians, An Overview of the Indian Residential School System, (2013) online (pdf):www.anishinabek.ca/wp-content/uploads/2016/07/An-Overview-of-the-IRS-System-Booklet.pdf at 2.
2Yellowhead Institute, An Act respecting First Nations, Inuit, and Métis Children, Youth and Families Does Bill C-92 Make the Grade? (March 21, 2019) online (pdf): yellowheadinstitute.org/wp-content/uploads/2019/03/does-bill-c-92-make-the-grade_-full-report.pdf at 5 [Yellowhead Institute Paper].
3Ardith Walkem, WRAPPING OUR WAYS AROUND THEM: Aboriginal Communities and the Child, Family and Community Service Act (CFCSA) Guidebook, (ShchEma-mee.tkt Project (Nlaka’pamux Nation Tribal Council): 2015), online (pdf): cwrp.ca/sites/default/files/publications/en/wowat_bc_cfcsa_1.pdf at 8.
4An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, SC 2019, c 24, Preamble [The Act]. (“Whereas Parliament recognizes the legacy of residential schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial policies and practices;”)
5Yellowhead Institute Paper, supra note 2 at 9.
6Indian Child Welfare Act, 25 USC §1901–1963 (1978) [ICWA].
7Sébastien Grammond, "Federal Legislation on Indigenous Child Welfare in Canada." Journal of Law and Social Policy 28:1. (2018): 132-151 at 141. https://digitalcommons.osgoode.yorku.ca/jlsp/vol28/iss1/7
8Ibid.
9Ibid.
10Ibid.
11Ibid at 142.
12Racine v Woods, [1983] 2 SCR 173, 187-88.
13The Act, supra note 4 at 16(1).
14Yellowhead Institute Paper, supra note 2 at 17-18.
15See Jon Goud, “Quebec’s Misguided Challenge to Federal Indigenous Child Welfare Law” (Jan 23, 2020) blog: blogs.dal.ca/dlj/2020/01/23/quebecs-misguided-challenge-to-federal-indigenous-child-welfare-law/. (This appeal has been criticized as one that will simply delay much needed change in the child welfare system).
16See British Columbia (Child, Family and Community Service) v. S.H., 2020 BCPC 82 and Alberta (Child, Youth and Family Enhancement Act, Director) v K.C, 2020 ABPC 62.
17See Huron-Perth Children’s Aid Society v. A.C., 2020 ONCJ 251 (See paras 127-28, where the Court takes note of the parents' limited connection to their Metis culture in determining that the children should stay with a Metis foster family).
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