Aboriginal Child Protection and Dual Citizenship: Membership has its Benefits

In British Columbia, the Director representing the Ministry of Children and Family Development must notify the Aboriginal community (i.e. Indian Band) when there are child protection concerns such as removal of a child from their parents.

Under the Child, Family and Community Services Act (CFCSA), an Aboriginal Community (i.e. “treaty first nation, an Indian band or aboriginal community”) is one that is designated by the Minister.  This seems to run contrary to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) under the self-determination aspects of that international instrument where Indigenous peoples have the right to, “freely determine their political status and freely pursue their economic, social and cultural development” (UNDRIP, Article 3).

This whole notion of dual citizenship goes back to the olden times when competing Indian tribes would make peace and friendship agreements, especially involving the marriage of persons from each tribe,.. The Band being named and served with court documents gives them (the Indigenous community) a right to attend the presentation hearing as a “designated representative” to make submissions and advocate the communal concerns for the child.  Since parents have access to Legal Aid, so too should Indigenous communities have access to lawyers through Legal Aid to represent them as part of the child’s best interests.   Moreover, under the Guiding Principles, s. 2 (f) of the CFCSA, it is stated, “the cultural identity of aboriginal children should be preserved”.  Also, the CFCSA provides under s. 4(2), “If the child is an aboriginal child, the importance of preserving the child’s cultural identity must be considered in determining the child’s best interests”.

In speaking of best interests, an Aboriginal person has Aboriginal rights, which confers a benefit upon members of an indigenous group.  Section 35 of the Canadian Constitution Act provides for Aboriginal rights to be recognized and affirmed.  The test for Aboriginal rights was established by the Supreme Court of Canada in R. v. Van der Peet, [1996] 2 S.C.R. 507 where the Chief Justice stated at para 55:

Perhaps it’s time to abandon the Indian Act for its racist regime. It ought to be replaced with better legislation that is based on a nation to nation outlook, and one that recognizes the Indigenous Law of dual citizenship.
“To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part.  The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society’s distinctive culture.  He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive — that it was one of the things that truly made the society what it was.”

The whole notion of preserving cultural identity often falls short because of lack of indigenous foster parents, lack of support services, and lack of financial resources.  As more and more indigenous children fall through the cracks, they grow up assimilated and without a deep connection to their Aboriginal community or culture, this erodes First Nations of their nationhood.   It erodes indigenous peoples access to exercise Aboriginal rights; it is akin to genocide.

Now is the time to hold the governments accountable for the fiduciary relationship they have with its indigenous citizens.  Much more needs to be done in respect of preserving the child’s cultural identities. An indigenous child ought to be regarded first and foremost to be placed within its own family and  if family is unable to foster a child, then the Aboriginal community of that child should be the second choice so as to preserve cultural, linguistic identities, etc.  The Ministry of Children and Family Development provides funding and support services to primarily non-indigenous foster parents to nurture and raise children in care.  Instead of taking that approach, the priority must be placed upon the Indigenous community for placement. With the large amount of unemployment in indigenous communities, the extra income to raise indigenous children of their own communities would very likely be welcomed by those that can provide child protection services.  This might require interprovincial co-operation and perhaps, a reason to reinforce s.91(24) of the British North America Act 1867 where the federal government has exclusive jurisdiction over Indians.

Not all provinces have the same approach in dealing with indigenous children.  Take for instance Alberta, where the legislation provides consultation to Indian Bands when a child is normally resident on an Indian Reserve.  If a child is removed from a location that is not an Indian Reserve and is not normally resident on an Indian Reserve, a different set of rules apply than that of British Columbia.  This is another reason why uniform federal legislation (e.g. Indian Act, Divorce Act, or the Federal Child Support Guidelines) ought to be made by Canada for the protection, preservation and enhancement of Indigenous populations.

Being a member of an Indian Band is one thing, but holding citizenship in a First Nation, or being a dual citizen of two First Nations is a reality that must be recognized and upheld.  In cases where a child’s parents are both from Aboriginal communities, the possibility exists for two different cultures, two different Bands or communities.  It is unfortunate for the child and for indigenous communities, that dual citizenship is completely ignored.  The Director seems to comply with the legislation by only notifying one indigenous community even though a child has two very separate and distinct First Nations in their background. However, this approach may have shifted in recent situations.

A child who has a background in more than one Aboriginal community should have the benefit of both communities becoming involved.  This troubling aspect extends beyond the range of child protection issues.  In the B.C. Treaty Tripartite Negotiation process the idea of dual-citizenship has been raised and flat out rejected by government negotiators.  That is not the position that Aboriginal communities take, which is that a child belongs to two nations if they have parents from two different nations.

This whole notion of dual citizenship goes back to the olden times when competing Indian tribes would make peace and friendship agreements, especially involving the marriage of persons from each tribe, (i.e. inter-tribal marriage).  This intermarriage system was a way to secure alliances and to strengthen trading networks, access to resources, etc.  There are plenty of stories of the “chief’s daughter” marrying someone from a different culture or community for the sake and betterment of both communities; it is also related to the indigenous law of reciprocity.

With Canada now in a position to reset the framework, recognizing that there is a nation to nation based relationship with governments and First Nations,there is need to reconcile this aspect.  Indians fall under the federal government jurisdiction; however, the provinces have child protection matters through delegated authority agreements.  With indigenous children rapidly becoming a large part of the segment of people in child protection, it is more important then ever to address this growing problem.

Not all provinces have the same approach in dealing with indigenous children.  Take for instance Alberta, where the legislation provides consultation to Indian Bands where the child is normally resident on an Indian Reserve.Now is the time to hold the governments accountable for the fiduciary relationship they have with its indigenous citizens.  Also, the First Nations, Indian Bands, Indigenous communities, and/or Metis settlements must not only be informed when a child of their community is at risk for removal and placement in the foster care system, but they ought to become involved.

The reason for indigenous communities to become involved is for the protection of the communal nature of its citizens.  Being a member of an Indian Band is one thing, but holding citizenship in a First Nation, or being a dual citizen of two First Nations is a reality that must be recognized and upheld.

The idea behind the residential schools and possibly the “60s scoop” is to kill the Indian in the child, to bring about cultural genocide.  It has now been recognized by Canada that the Indian Residential School system was a failure and has only exacerbated the social problems in native communities.

There are also Charter arguments that can be raised. When legislation only deals with one community, where is the equality?  Quite often indigenous children are registered as status Indians under the Indian band to which their mother belongs; yet, the child has an indigenous father and belongs to a different band.  Recognizing dual citizenship under the Indian Act is also an important aspect in respect of holding a Certificate of Possession in respect of land on an Indian Reserve.

As more and more indigenous children fall through the cracks, they grow up assimilated and without a deep connection to their aboriginal community or culture, this erodes First Nations of their nationhood.The divide and conquer aspects of the Indian Act must be repealed.  Perhaps it’s time to abandon the Indian Act for its racist regime. It ought to be replaced with better legislation that is based on a nation to nation outlook, and one that recognizes the Indigenous Law of dual citizenship. After all, that is the basis for peace and friendship agreements known as intertribal treaties.

Article 8 of UNDRIP is about governments having responsibility to ensure that forced assimilation does not occur and that effective mechanisms are put into place to prevent depriving Indigenous peoples of their cultural identities and distinctive traits, disposing them of their lands, territories or resources, population transfer which violates or undermines Indigenous rights, forced assimilation or integration, and discriminatory propaganda.

As Canada is poised to implement the United Nations Declaration on the Rights of Indigenous Peoples and the 94 recommendations of the report of the Truth and Reconciliation Commission, there is much work to be done.  Godspeed.

Authors:

Troy Hunter
Troy Hunter

Troy Hunter J.D. (Co-op Law) is an aboriginal lawyer with Remedios & Company in Vancouver, BC.

 


A Publication of CPLEA