TW: Mentions of CFS, foster care.
Tansi Ninôtemik,
Indigenous children are removed from their families at a rate 17 times higher than their non-Indigenous peers.[1] When courts place children outside of their communities, kinship ties are weakened or severed altogether, and superficial engagement with Indigenous culture by their non-Indigenous foster families is considered adequate. Therefore, the process of removing Indigenous children from their families without regard for Indigenous law and placing them with White foster families is a perpetuation of colonization.
An Act respecting First Nations, Inuit and Métis Children, youth and families (“the Act”), also known as Bill C-92, was co-developed with input from Indigenous Nations to help courts determine what is best for Indigenous children needing protection.[2] The Canadian government is falling short of its promise that its implementation in courts would be similarly collaborative.[3]
The primary factor courts must consider requires determining what is in the best interest of an Indigenous child, outlined in section 10(2) of the Act, which states to give primary consideration to a list of factors, including:
-the child’s physical, emotional, and psychological safety, security and well-being
-the importance of having an ongoing relationship with their family
-the importance of having an ongoing relationship with the Indigenous group, community or people to which they belong
-preserving the child’s connection to their culture [4]
Nevertheless, children are being placed in non-Indigenous homes, due in part to the courts’ neglect of the community’s laws.
Courts should consider the provision of a law of the Indigenous group, community or people to which the child belongs when doing a section 10(2) analysis.[5] However, judicial education on Indigenous law of the nation of the children for who they make decisions is limited or non-existent. Often, the court often lacks the ability to consider Indigenous law holistically. (See our previous Narrative Analysis post here).
If courts do not recognize the full extent of Indigenous law, they are blind to the protections that the Nation has established. Courts instead see a lack of safeguards and decide to keep Indigenous children with foster families.
Many courts use the primary considerations in section 10(2) to keep children in White or non-Indigenous homes. White foster families vastly outnumber Indigenous ones. Therefore, in situations where children are found in need of protection, White foster families are easier to find while longer-term kinship placements can take more time, and consideration, if they are investigated at all. Courts often find that the child has formed a stable connection to their new White foster family, which supersedes any connection to that child’s community, even if they have only been placed there on a short-term basis, and there are family members willing and able to take the children in. Cases such as First Nation A. v A.B. show that even thorough cultural plans can prevent children from returning home, as long as at minimum, the child visits their Nation once yearly.[6] Surface-level engagement with “culture” is often found adequate, serving as another form of governmental control. Over-regulation has led to cultural erasure.
The criteria for deciding what is in the best interest of an Indigenous child is being used against communities to keep their children from them. A case out of Manitoba summed up perfectly: “culture is not a side dish.” The court in this case also emphasized the need for long-term planning for a child of “any culture.”[7]
Historically, in Indigenous Nations, families and communities were strengthened when children created new relationships in addition to initial relationships rather than replacing them.[8] An “addition” adoption model (currently seen more in Nunavut) uses Indigenous laws and important cultural practices to protect the best interests of Indigenous children.[9]
To best protect Indigenous children, courts must give equal weight to Indigenous law. A different analysis, one that understands and incorporates Indigenous law, is needed to keep the government from subjecting Indigenous people to increased scrutiny and intervention.
[10]
Until next time,
-The ReconciliACTION YEG Team
[1] Government of Alberta, “Child Intervention Information and Statistics Summary” (26 April 2023) <https://open.alberta.ca/dataset/de167286-500d-4cf8-bf01-0d08224eeadc/resource/1fb466ae-1e6b-49e4-8909-10beea550e6d/download/cs-child-intervention-information-and-statistics-summary-2022-2023-q4.pdf>.
[2] An Act respecting First Nations, Inuit and Métis Children, youth and families, SC 2019, c 24.
[3] Government of Canada, news release, “Bill C-92: An Act respecting First Nations, Inuit and Métis children, youth and families receives Royal Assent” (21 June 2019)
[4] Supra note 1, s 10(2).
[5] Ibid, s 10(4).
[6] First Nation A. V. A.B., 2020 BCPC 279.
[7] Manitoba (Director of Child and Family Services), 2022 MBQB 175 at para 178.
[8] Hadley Friedland, “Reference re Racine v Woods” (2020) 2020:177 CNLR at 162 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3769322>.
[9] Ibid at 162, 164.
[10] "Two Inuit boys playing in an igloo, Igloolik, Northwest Territories / Deux garçons inuits jouent dans un igloo à Igloolik (Territoires du Nord-Ouest)" by BiblioArchives / LibraryArchives is licensed under CC BY 2.0.
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