Troy Hunter, Author at LawNow Magazine

About Troy Hunter

Troy Hunter J.D. (Co-op Law) is an aboriginal lawyer. He owns and operates New Columbia Law Corporation in New Westminster, BC.

Political Belief and Discrimination in Employment Law

May 3, 2019 By Troy Hunter

Quebec, Canada – Sep 17th 2018 Native American woman statue in the Place-Royale, a famous cobblestone town square in Old Quebec, Quebec City. Photo credit: Troy Hunter

The Canadian Human Rights Act sets out prohibited grounds of discrimination under s. 3(1):

For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

It’s time that the Canadian Human Rights Act be amended to include political belief as a further prohibited ground of discrimination.This omission impacts anyone whose employment falls under federal jurisdiction. It is of particular interest to Aboriginal people where First Nations, or its entities such as tribal councils, are governed by the federal Act.

This omission also seems contrary to Canada’s obligations as a signatory to the United Nations’ Universal Declaration of Human Rights which, in Article 2, includes political or other opinion as a right and freedom:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

When we consider what political belief is, we most likely think of membership in a political party. As Canada has partisan politics as a cornerstone of its foundation, the failure to prohibit discrimination on the basis of political belief by the federal government runs into a deep chasm that should never be.

The Jamieson decision is often cited on the basis that, “’political belief’ in [B.C.’s Human Rights Code] is not restricted to issues of partisan politics” (Siemens at para 17).Political belief can be a tricky thing in many areas of life. In the past, political membership or activity potentially led to discrimination in the realm of economic activity. I heard an anecdote about an entrepreneur from the Edmonton area who was involved in a power project proposal. He attended a meeting where a minister approached him and asked if he was a donor to the Social Credit party. When the entrepreneur replied that he was not, the minister turned around and walked away. The effect of that was to deflate the entrepreneur’s balloon where he had sought government support for his project. There would be no government support on the basis that he did not donate money to the political party that was in power at the time. Perhaps, historically, this is why corporations have been major donors to political parties.

Others have noticed how partisan politics can affect the economy in this country. In 2017, the New York Times quoted Democracy Watch’s founder, Duff Conacher: “B.C. is the wild west,” in relation to an article about corporate donors to political parties and the ethics involved (Lavin). Since then, the B.C. government has banned union and corporate donations for its provincial and municipal elections.

With regard to the federal government, the Prime Minister of Canada, prior to his taking up that position when he was leader of the opposition party, released all of the Liberal senators and declared them to be independent. Political belief is no longer a consideration for senators appointed to public office in what is often termed, “The Red Chamber”, and going forward, senators no longer have to tow a political party line.

No one wants to face discrimination on the basis of political beliefs when seeking employment. Still, it is clear that this does sometimes occur. The British Columbia Human Rights Tribunal, under s. 13 of B.C.’s Human Rights Code, prohibits discrimination based on political belief and has examined the issue in employment law cases. A number of these cases have involved Aboriginal people.

In the federal Act, political belief is not an enumerated category. There has been discussion within the Canadian Human Rights Tribunal about it because most of the provinces in Canada have political belief as a prohibited ground for discrimination.In the 2015 case of Siemens v. District of Vanderhoof and others, 2015 BCHRT 172 (Siemens), Erin Siemens asked the British Columbia Human Rights Tribunal to determine if she was discriminated against on the protected ground of political belief when she was dismissed from her employment. She alleged that “having been seen in the company of a friend and political rival of the Respondents during a political campaign, and on the basis of direct statements made to her by the District’s CAO, she was perceived to be politically allied and aligned against the Respondents” (Siemens at para 20). The respondents asked the Tribunal to dismiss her application.

Siemens raised the case of Jamieson v. Victoria Native Friendship Centre (1994), BCCHRD No 42 (Jamieson), where it was determined that “political beliefs are not limited to beliefs about, or involvement in, recognized or registered political parties and beliefs about organizations and governments of First Nations communities are political” (Jamieson at para 14). The Jamieson decision is often cited on the basis that, “’political belief’ in [B.C.’s Human Rights Code] is not restricted to issues of partisan politics” (Siemens at para 17).

The British Columbia Human Rights Tribunal, under s. 13 of the B.C. Human Rights Code, prohibits discrimination based on political belief and has examined the issue in employment law cases. A number of these cases have involved Aboriginal people.The then-chair of the British Columbia Human Rights Tribunal stated, in the Siemens case at para 21, that: “the facts alleged in the complaint could, if proven, engage the protected ground of political belief under s. 13 of the Code.” The Tribunal allowed Ms Siemens’ complaint to proceed for determination.

In another case before the British Columbia Human Rights Tribunal, political belief was involved in an employment law situation where an employer did not hire the complainant. Sylvia Stephens filed a complaint with the Tribunal against a First Nation development corporation and other individuals alleging that she was not hired because of her family status and political beliefs (Stephens v. Gitxat’in Development Corporation and others (No.2) 2006 BCHRT 11 (Stephens)). The respondents countered that her opinions as outlined in her filings did not amount to political beliefs. Tribunal Member Lindsay Lyster wrote:

The parameters of ‘political belief’ have not been conclusively defined in the case law, and I am not prepared to conclude that political belief could not include the kinds of opinions stated by Ms. Stephens in the documents she has submitted. In my view, Ms. Stephens has alleged facts with respect to the allegations of discrimination on the basis of political belief which, if proven, could constitute a contravention of the Code (Stephens at para 13).

In the end, the Tribunal dismissed Ms. Stephens’ complaint, concluding that there was “no reasonable prospect that Ms. Stephens would be able to establish the respondents discriminated against her on the basis of either her political beliefs or of her family status in refusing to hire her” (Stephens at para 15).

The B.C. Human Rights Tribunal decided the Stephens case under a human rights code that recognizes political belief as a human right prohibited ground for discrimination. However, what would happen if such a case fell under the jurisdiction of the federal Canadian Human Rights Act where political belief is not a protected ground? In such circumstances, one might consider how international human rights law such as the United Nations’ Universal Declaration of Human Rights affects the common law system in Canada. In the 1980 case of Bailey v. Canada (Department of National Revenue), 1980 CanLII 5 (CHRT), the Canadian Human Rights Tribunal stated: “Resort can be had to international law and international obligations assumed by Canada, in interpreting the meaning of the Canadian Human Rights Act.”

Canada should not pick and choose which human rights it wants to implement. It’s time that the Canadian Human Rights Act be amended to include political belief as a further prohibited ground of discrimination. First Nations people facing discrimination in employment and other areas of Canadian law would applaud such a step.

An Indigenous Perspective to Canada’s 150th Birthday

May 5, 2017 By Troy Hunter

This year, there are many celebrations for Canada’s 150^th birthday. What we are really commemorating is the British North America Act 1867 (BNA Act 1867) which established our country’s Constitution. The BNA Act 1867 has since been renamed the Constitution Act 1982 after the repatriation of our Constitution from Great Britain.

Ministers’ Working Group

One aspect of Canada’s 150^th birthday is that, this year, the federal government has undertaken a review of laws and policies related to indigenous peoples. A Ministers’ Working Group “will examine relevant federal laws, policies, and operational practices to help ensure the Crown is meeting its constitutional obligations with respect to Aboriginal and treaty rights”. There are constitutional rights established in our constitutional documents which the Minister’s Working Group might want to have a good look at, which I will highlight later in this article as it pertains to the land question in regards to Canada’s indigenous peoples.

Background

It brings me great pride that I was born in the year of Canada’s centennial birthday in New Westminster B.C. where I have written this article. Fifty years later, I have made my birthplace my home and practice law in Greater Vancouver. I have ancestral roots that extend to the Ktunaxa territory in southeast B.C. I am a member of the Ktunaxa First Nation, but going beyond that, my ancestral roots can be traced to Scotland, Ireland, England, Germany, Switzerland, and France. My seventh-generation great-grandfather, Mr. Francois Morigeau, immigrated from around Montreal to the Columbia Valley decades before Canada’s confederation in 1867.

My French ancestry can be traced to 1666 in New France, now Quebec, where the Morigeau’s originated from. I have an ancestor who was a member of the Carignan Salières Regiment and he married one of France’s “King’s daughters”, les Filles du Roi. My ancestors, the Morigeaus, stem from Jean Pierre Forgues and Marie Robineau who married 349 years ago at New France in Notre-Dame de Québec Basilica-Cathedral, Quebec City, Quebec Canada, the first parish church in North America.

Plains of Abraham, photo by Troy Hunter, January 2008.

I had the honour and the privilege to attend the Canadian Constitutional Affairs Conference 2008 which was held in a typical icy cold, January winter in Quebec City at the Plains of Abraham. During that event, an exquisite dinner was held in an ancient church in Old Quebec City. How wonderful it was to be there where the history in 2008 was 400 years old. And for me to be in a place where I have a bloodline connecting me directly to that location was an amazing experience.

As a second-year law student, and member of an indigenous nation, I spoke about the United Nation Declaration on the Rights of Indigenous Peoples, free, prior and informed consent, the need for senate reform so as to include Indigenous peoples as a third order of government, and appointing an Indigenous person to the bench of the Supreme Court of Canada. It was at a social get-together afterwards that I was introduced to political scientist Tom Flanagan and you could feel the tension in the room at that moment. It was obvious that neither of us saw eye-to-eye based on our political aspirations and beliefs, but nevertheless, to look Mr. Flanagan directly in the eye and to shake his hand at that conference is a memory that I will always have.

Royal Charter

Royal Charters are established when a monarch grants rights or powers to a person or persons and it is issued as letters patent. Royal Proclamations are similar to Royal Charters. The National Archives of the United Kingdom defines Royal Charters and Letters Patent as “grants which were issued under the Great Seal” that “cover a huge diversity of subjects, including grants of official positions, lands, commissions, privileges and pardons”.

Our constitutional history stretches back in time with language that goes back centuries. There are certain words and phrases that we have come to accept as part of the fabric of who we are as Canadians, some of their origins are explored here. Take for example, the word “charter”. In Canada’s constitutional history, we often think of the more recent, 1982 Canadian Charter of Rights and Freedoms. We all have come to know its meaning but perhaps, fail to recognize what a charter is and where it comes from. I will explain how royal instruments such as a charter or a proclamation are venerated to the highest accord and treated as if it were sacrosanct.

Black’s Law Dictionary describes a charter as “an instrument that establishes a body politic or other organization, or that grants rights, liberties, or powers to its citizens or members”. There are municipal charters which specify organizational structure and create a corporation and body politic. In general, to “charter” as a verb means to establish or grant by charter.

Charters have been granted to organizations that have been involved with Canada’s historical roots, which helped form our Constitution, two examples are, the Free Masons and the Hudson’s Bay Company.

Stone Mason’s Charter

In examining the origins of freemasonry, there are written legends that go back over a thousand years to our motherland Great Britain and Scotland, where a Charter had been supposedly granted by the first King of England and one of the greatest Anglo-Saxon kings, King Athelstan.

King Athelstan supposedly granted a Royal Charter through his brother, Edwin. By Royal Charter, stone masons were granted the right to meet and ask for better wages and conditions. which created an elite member group within the trade. Hundreds of years later this became a cause for concern which resulted in the outlawing of Mason’s gatherings due to the complaints of the general labourer who were paid less. It was because the Mason’s had a Royal Charter that they were allowed to continue to operate and to hold their meetings.

The Hudson Bay Charter

When the vast riches of continental America became common knowledge, the Kingdom of Great Britain, along with other countries, set out to colonize the lands. In 1670 the Hudson Bay Company was established under a Royal Charter and issued under Letters Patent.

The Charter of 1670, granted by the King of England, Charles the Second recognized in its preamble that a certain named group of individuals led by the King’s cousin, Prince Rupert, desired to undertake an expedition to the Hudson’s Bay to discover a new passage to the South Sea (the Northwest Passage) and to trade in furs, minerals and other commodities. The King of England further encouraged the company of explorers by providing a monopoly over trade and commerce. The Charter established both a corporate body and a political one as well. The newly minted company was both a colony and a company, with territorial rights to resources including rent, to hold public assembly and civil or criminal court in accordance with English law, to hold office, impeachment, the dispensation of land, good governance, elections, law making jurisdiction, imposition of punishment, while at all times, saving the faith, allegiance and sovereign dominion to the British Crown. The Company also had exclusive rights to trade and traffic in respect of adjacent lands and Native persons.

It is remarkable in examining the Hudson’s Bay Charter how many words, phrases and concepts it contains that are similar to the BNA Act 1867. For instance, “trade and commerce” is used in the Constitution where its regulation is the exclusive domain of the federal government. Then there is the administration of justice, an exclusive domain of the provincial governments, which somewhat mirrors the Hudson’s Bay Company Charter. There are even notwithstanding clauses in both the Charter and the Constitution although their clause meanings may differ somewhat.

Royal Proclamation of 1763

Royal Proclamation of 1763

King George III was only 25 years old when he issued the Royal Proclamation of 1763; however, it was issued as Letters Patent under the Great Seal of Great Britain and with the advice of the Privy Council. The Proclamation recognized Great Britain as the mother country of the British colonies in the Americas. It provided for the colonies to have Royal Protection for the enjoyment of the benefit of the laws of the realm of England, to erect and constitute courts of judicature, public justice for all causes criminal and civil according to law and equity and as may be agreeable to the Laws of England with liberty for persons in all civil cases to appeal under usual limitations and restrictions to the Privy Council. The Proclamation not only recognized Indian title in lands, but created a statutory Indian reserve for all unceded land to the Indians. It named certain colonies but also applied to the Hudson’s Bay Company where Warrants of Survey or Patents for any lands whatever could not be issued where the Indians have not ceded or sold their lands to the Kingdom of Great Britain. The Proclamation explicitly mentioned that the lands not within the limits of the Hudson’s Bay Company westward to the Sea were excluded from being taken up, without special leave and licence for that purpose first obtained from the Kingdom of Great Britain. The Indians were given the right to dispose of their lands but only to the Kingdom of Great Britain (now the federal government), where there has been a public meeting or assembly of the said Indians for that purpose. Furthermore, trade with the Indians would continue on the basis that a trade licence was first obtained from the respective colony. One of the final clauses mentioned the Management and Direction of Indian Affairs within the territories, which in today’s terminology, is now known as Indigenous and Northern Affairs Canada (INAC). The BNA Act 1876 provides the exclusive jurisdiction of Indians and Lands Reserved for the Indians as federal.

King Richard III

Moreover, the Royal Proclamation of 1763 uses some of the same words as in the Hudson’s Bay Charter, for example, “make, constitute, and ordain laws, statutes and ordinances”. One of the important and overlooked aspects of the Proclamation is the appeal mechanism to the Privy Council. In Canada’s early history, appeals could be made to the Privy Council in England. However, the Charter of Rights and Freedoms 1982, section 25, recognizes that there are statutory rights and that the Charter of Rights and Freedoms doesn’t abrogate or derogate from such rights. S. 25 (a) states that, “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763”. Also, s. 26 of the Charter says, “The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada”. Evidently, our Constitution extends beyond the words of the BNA Act of 1867.

S.91(24) of the BNA ACT: Indians and Lands Reserved for the Indians

In 1887, the Supreme Court of Canada in the St. Catharines Milling and Lumber Co. v. R. case recognized that the BNA Act 1867 reference of Lands Reserved for the Indians as including unceded lands as per the Royal Proclamation of 1763 follows:

… all such lands, until the cession thereof should be made by the Indians to the crown, constituted what were known as and designated “Indian Reserves,” “Lands reserved for the Indians,” or “Indian lands.” It is the lands not ceded to or purchased by the crown which are spoken of in the proclamation of 1763 as the lands reserved to the Indians for their hunting ground—and the unceded lands have ever since been known by the designation “Lands reserved for the Indians” or “Indian Reserves.”

In 1888, the Judicial Committee of the Privy Council in St. Catherine’s Milling and Lumber Company upheld the decision of the Supreme Court of Canada and determined that all unceded lands are reserved to the Indians and therefore, fall under s.91(24) of the British North America Act, federal jurisdiction, as Indian Reserves. Moreover, they also stated that the provinces can enjoy the resources of the land when “Indian Title” is ceded (i.e. treaty) as follows:

The fact that the power of legislating for Indians, and for lands which are reserved to their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.

The Unwritten Constitution

There is even an unwritten constitution that forms part of the fabric of our nation. When I was in law school, I recall learning about the unwritten constitution from the internationally renowned indigenous law Professor John Borrows. Borrows wrote about the political survival of indigenous legal traditions including self-government as follows:

Indigenous legal traditions continued to exist in Canada unless … they were incompatible with the Crown’s assertion of sovereignty, … they were surrendered voluntarily via the treaty process, or … the government extinguished them.” Barring one of these exceptions, the practices, customs and traditions that defined the various aboriginal societies as distinctive cultures continue as part of the law of Canada today. If reconciliation is the lens through which the courts interpret the parties’ relationships, there are sound arguments that Aboriginal governance is compatible with the Crown’s assertion of sovereignty, that it was not surrendered by treaties, and that it was not extinguished by clear and plain government legislation (Borrows)[1].

Moreover, the unwritten constitution was discussed by the Supreme Court of Canada back in the 1980s after the repatriation of the Constitution.

In 1998 the Supreme Court of Canada in Re: Reference to the Succession of Quebec, mentioned that there are underlying principles that, “are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. The principles dictate major elements of the architecture of the Constitution itself and are as such its lifeblood” (SCC 1998).

The Land Question

While there are Supreme Court of Canada decisions that allow for the infringement of Aboriginal title and rights, as legislative objectives, for example, “the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of [A]boriginal title”, they are nevertheless, in his own words, only an “opinion” of Chief Justice Lamer, who then went on to say that it “is ultimately a question of fact that will have to be examined on a case-by-case basis” (Williams).

The Supreme Court of Canada Act, is federal legislation that provides “exclusive ultimate appellate civil and criminal jurisdiction within and for Canada, and the judgment of the Court is, in all cases, final and conclusive”. In light of the 150^th anniversary of the British North America Act 1867 and the federal review of laws and policies to ensure constitutional obligations towards indigenous peoples are being met, the Minister’s Working Group ought to take a very close look at what rights exist under the Royal Proclamation of 1763, including the ability for aggrieved persons or groups to appeal to the Judicial Committee of the Privy Council in London, England as the highest court of appeal or court of last resort. Canadians have the 1982 Royal Charter which backs up the Royal Proclamation of 1763.

Just as the Free Masons were able to uphold their rights to assemble because they had a Royal Charter issued by a king despite laws to the contrary, so too, should the Indigenous people of Canada that have land grievances over unceded lands, treaty obligations, etc., be able to uphold their rights to appeal to the Privy Council for final and binding determination. After all, the honour of the Crown is at stake and we as Canadians virtue equality both before and under the law. If one group can rely on a Royal Charter or Letters Patent to stand on their rights, so too should another group as the Royal Proclamation of 1763 is akin to a Royal Charter and likewise to the Hudson Bay Charter, The Royal Proclamation was also issued under Letters Patent.

[1] John Borrows, Indigenous Legal Traditions in Canada, Washington University Journal of Law & Policy, Volume 19 Access to Justice: The Social Responsibility of Lawyers | Contemporary and Comparative Perspectives on the Rights of Indigenous Peoples, January 2005.

Aboriginal Child Protection and Dual Citizenship: Membership has its Benefits

March 2, 2017 By Troy Hunter

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.

New West Lands Reserve: Parts Unknown

January 4, 2017 By Troy Hunter

Figure 1 – 1763 map by Cartographer Robert Sayer showing Lands discovered in around present day Alaska in the north, as well as the mighty Columbia River in the South, which was labelled, “River of the West”.

In 1763, after the Treaty of Paris, a map was published by, Robert Sayer: A New Map of North America, with the British, French, Spanish, Dutch & Danish Dominions on that great Continent; and the West India Islands, According to the Definitive Treaty concluded at Paris 10th February 1763 .

It’s fascinating to look closely at the places that were named, including: New France, New Mexico, New York, New Albion, New Navarr Mexico, New Britain, New Denmark, and New Ultra. The entire Northwest was only labelled, “Parts Un Known” and was devoid of much detail, with exception of the, “River of the West”, which was actually the Columbia River and the Juan de Fuca Strait.

An appropriate name for what has become known as British Columbia is “New West Lands Reserve“, because unceded land is reserved by the Royal Proclamation of 1763. The name is plural as there is more than one First Nation in the Province. The reference to “Reserve” connotes a sense of non-permanence, which is the underlying goal of the 1763 Proclamation. Moreover, the Iroquois and Metis who guided the European fur traders to the area originally knew the area as the New West Territories, just as Quebec was known as New France. The many place names with the word “New” makes it even more convincing that the name, “New West Lands Reserve” should be used.

Moreover, New West Lands Reserve also honours and commemorates some of the earliest Europeans that came into the land. It was the North West Trading Company that first explored what is now British Columbia under the command of Simon Fraser in 1805. Although Simon Fraser called a region of the province New Caledonia, there is an island in the Pacific Ocean with the same name. Likewise, there already is the North West Territories and there shouldn’t be confusion with the lands known as British Columbia, with those territorial lands north of the 60^th parallel.

The Royal Proclamation of 1763 created an Indian Reserve in that all unceded land are lands reserved for the Indians and should be properly known as New West Lands Reserve. On a similar vein, Rupert’s Land was the Hudson’s Bay drainage basin, an area of land established under the 1670 Hudson’s Bay Charter. The Charter contemplated that Rupert’s Land would be extended to the west coast and the Hudson’s Bay Company would seek to find the Northwest Passage. In the 1850s, Sir James Douglas was running the show for the Hudson Bay Company on Vancouver Island, where he was busy making treaties as was required by the Royal Proclamation of 1763. The United Kingdom requested that the Hudson’s Bay Company sell off its monopoly of Rupert’s Land and in return, begin the Colony of British Columbia. Both the Hudson’s Bay Company and the Crown were involved in Free Masonry and the word, “Columbia” is important in the world of Free Masons; thus, the term British Columbia was born.

The British North America Act 1867 established Canada as a nation and British Columbia was later added as a province under the British Columbia Terms of Union in 1871. Section 109 of the Constitution Act 1867 provides, “All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same”. Section 109 of the Constitution Act 1867 applies in British Columbia, due to s. 10 of the Terms of Union of British Columbia which made it a requirement that the lands, mines, minerals or royalties in the Province are “subject to” existing trusts and interests. There is an existing trust and that is the New West Lands Reserve made by the Royal Proclamation of 1763. There is, as well the existence of Aboriginal Title and the Indian interest, which are two separate legalities. Indian Reserve and Aboriginal Title are not the same, as the former is derived from statute and the latter is derived from occupation.

The Royal Proclamation of 1763 created an Indian Reserve in that all unceded land are lands reserved for the Indians and should be properly known as New West Lands Reserve. Lands with the name “British Columbia” should only apply to such lands where treaties have been made in the province, for example, Treaty 8 and Douglas Treaties.

In 1888 the Judicial Committee of the Privy Council on appeal from a judgment of Supreme Court of Canada, recognized that unceded land is an Indian Reserve. The Court stated in the case of St. Catherine’s Milling and Lumber Company v. The Queen, “The lands reserved … shall be reserved for the use of the Indians, as their hunting grounds, under his protection and dominion.”

In the 1850s, Sir James Douglas was running the show for the Hudson Bay Company on Vancouver Island, where he was busy making treaties as was required by the Royal Proclamation of 1763. Some will say that the Royal Proclamation of 1763 doesn’t apply in British Columbia because, at the time of the Proclamation, the western coastline wasn’t fully yet known to the Europeans and that the Indians that inhabited the lands were not connected to the Crown.

It should now be settled law that the Royal Proclamation of 1763 applies in British Columbia due to the Supreme Court of Canada split vote in the 1973 Calder decision. The split vote created ambiguity as to whether or not the constitutional document known as the Royal Proclamation of 1763 (a statute recognized in the BC Interpretation Act) applied in the Province. In 1983, the Supreme Court of Canada in Nowegijick v. the Queen at p. 36, stated, “… treaties and statutes relating to Indians should be construed and doubtful expressions resolved in favour of the Indians”. Moreover, the 1990 Sparrow decision also by the Supreme Court of Canada determined that “statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians” and in R. v. Van der Peet in 1996, the Supreme Court of Canada stated, “doubt or ambiguity must be resolved in favour of aboriginal peoples … a constitutional document, should be interpreted so as to resolve any doubts in favour of the Indians”.

The Royal Proclamation of 1763 is a constitutional document and a statute (see section one of the British Columbia Interpretation Act). It is mentioned in s.25 of the Canadian Charter of Rights and Freedoms. The document itself and any doubt or ambiguity, must be liberally construed and apply in British Columbia, in favour of the Indians.

The United Kingdom of Great Britain and Northern Ireland, the Hudson’s Bay Company, as well as the Colony of British Columbia had no right to take up the lands in what is now known as British Columbia on the basis that the Indian inhabitants (a.k.a. First Nations), did not enter into treaties for the lands. Although some treaties were made, most of the Province remains unceded and should be recognized for what it is, the New West Lands Reserve.

Access to Justice: Potential Alternatives for Indigenous Peoples

April 19, 2016 By Troy Hunter

Photo Credit: Troy Hunter

About a year ago, there had been some publicity concerning Louie v. Louie BCCA, a court case where I acted as barrister and solicitor for an intervenor at the B.C. Court of Appeal. The case had involved a band member who sued his Chief and Council for a breach of fiduciary obligation. I was approached at different times by a number of other concerned people who also wanted to sue the leaders in their communities over things such as alleged mismanagement of communal funds or even bigger questions about who has authority in land claims, etc.

I remember that one of the chiefs sued in Louie v. Louie, commented to me about the practice of band members suing chiefs. If I recall, his comment was that it shouldn’t happen. Chiefs are part of the fabric of the community; they themselves stem from the grassroots people and often have the highest hopes for their communities. I very much agree; it shouldn’t have to happen. However, there are times when individuals feel that they have no choice but to turn to the court to try to get their issues resolved.

Negotiation produces a better outcome because both sides might end up with having their interests met in some way, whereas in litigation there is a winner and a loser.Here, at this juncture, is when Indigenous law has an opportunity to flex its muscles and become the authority but that is not always the case. Rather than seeking resolution through consent-based processes that likely involve Elders and other community people, the courts are sought for binding judicial decision-making.

It’s not an easy process to go to court, especially in situations where there is an imbalance of power, for example, between a chief and grassroots band members. Oftentimes, grassroots band members lack the financial capacity to carry a case through to completion of trial because the court system has become an expensive process.

Speaking of costs, the Tsilhqot’in case is the landmark Aboriginal title case in Canada and the only case where the judiciary has ruled that a First Nation has Aboriginal title. It cost tens of millions of dollars. How different is this than the First Nation that borrows $25 or $30 million to negotiate a treaty? Well certainly there are big differences, but in the big picture, the end result is similar. In both processes, there are vast expenditures of resources, and ultimately, there is settlement of some kind that involves setting out treaty land or aboriginal title land. To me, they are the same thing.
One of the biggest advantages of negotiation over litigation is that the parties involved control the outcome through consent. When litigation is involved, a judge, or at times, a jury determines what the outcome is going to be and it isn’t always good. Negotiation produces a better outcome because both sides might end up with having their interests met in some way, whereas in litigation there is a winner and a loser.

The issue of access to justice in an Aboriginal context recently came up in a report tabled in 2015 by the Truth and Reconciliation Commission of Canada in the Calls to Action…For Indigenous people, the question of access to justice remains outstanding. Certainly, there are times when going to court will achieve the desired outcome because of the entrenchment in both sides, which is the basic unwillingness to make any compromises. The band member that believes that the chief and/or council has been doing something untoward with communal resources, or a First Nation wants to obtain a declaration of Aboriginal title from the court. There are cost consequences and because of that, barriers to the legal system exist. Grassroots band members face barriers because they may not have any money, may be unemployed or their income may be insufficient to hire a lawyer. Likewise, First Nations lack access to the tens of millions of dollars it might require to prove an Aboriginal title case.

As a member of an Indian band myself, I know firsthand what its like to be part of an Indian Band. Within the Band system under the Indian Act, there are oftentimes feelings of oppression, jealousy, and lateral violence. It has been said that if you have a bucket of red crabs and a bucket of crabs of some other colour, the red crabs can never quite seem to escape from the bucket on account of jealousy and lateral violence while other crabs manage to all free themselves. When a person starts to get ahead, there are other people that will pull that person back down, just like the bucket of red crabs. This is what goes on in Indian communities. However, the Indian Act system requires an elected leadership and so eventually power flows to a few individuals that make decisions, control Band funds, and so on.

The issue of access to justice isn’t going to go away very soon but in the meantime, Indigenous people have section 35 of the Constitution Act 1982 that guarantees Aboriginal rights.Someone recently sent me a letter they received from Aboriginal Affairs and Northern Development Canada. It said that if a person has a problem with anything from housing to complaints about the Band Council for unfairness, they are to bring their concerns to their Band Council for resolution. To me, it seems like seeking resolution from the very person or persons causing the problem may cause further problems, such as being blacklisted from employment, housing, renovation funds and the like. It’s akin to a person in an abusive relationship; approaching the abuser sometimes isn’t the cure at all. With that said, the same occurs in adverse court proceedings; hostility arises.

When problems arise at the Band level, the usual course of action is to hold a Band meeting, but each community have their own ways of dealing with disputes. This is problematic as I’ve heard some communities haven’t had Band meetings in years. When a decision has been made by a Band Council, it should be documented by Band Council Resolution made at a duly convened meeting. These decisions are considered to be much like a court decision in that it is made by a federal tribunal and can be challenged under a judicial review process. The judicial review process in the Federal Court requires filing within 30 days of the decision being made and that it is expensive to hire a lawyer to bring a case for judicial review.
The issue of access to justice in an Aboriginal context recently came up in a report tabled in 2015 by the Truth and Reconciliation Commission of Canada in the Calls to Action which include calling upon, “… the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in a manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples, endorsed by Canada in November 2012 (TRC )”. Recommendation number 50 states:

Equity for Aboriginal People in the Legal System

In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.

Here, at this juncture, is when Indigenous law has an opportunity to flex its muscles and become the authority but that is not always the case. Rather than seeking resolution through consent-based processes that likely involve Elders and other community people, the courts are sought for binding judicial decision-making.If indigenous people embrace Indigenous law and truly look to their inherent rights, perhaps they can revive the Indigenous legal traditions for a better system, one that doesn’t cause friction in the community and brings about communal consensus based dispute resolution. Perhaps, if there were an Indigenous law institute, an individual band member who has no funds for litigation could still bring their chief to a forum where fairness is achieved without worrying about which side has more money. It also could be the place for early collaborative measures, which is what the Parents’ Legal Centre does in downtown Vancouver when it comes to Aboriginal kids in child protection matters. What is required is full support from all levels of government, law societies, First Nations and Metis organizations, and of course, the public.

The issue of access to justice isn’t going to go away very soon but in the meantime, Indigenous people have section 35 of the Constitution Act 1982 that guarantees Aboriginal rights. It is this guarantee that should be looked to in reviving Indigenous legal traditions, because in my mind, the court cannot be the answer to all the problems that exist. I am reminded of what the late Chief Justice said at the end of the Supreme Court of Canada decision in the 1997 landmark Delgamuukw case when he referred the matter back to trial but also strongly suggested a negotiation process of give and take from all sides. Chief Justice Lamer stated, “after all, we are all here to stay”.

That comment is often quoted in matters of indigenous peoples and reconciliation. It‘s an important thought because whether or not we are dealing with an indigenous community surrounded by non-indigenous people, or if the matter is internal to an Indian Band, we should all remember the words of the late Justice Lamer: after all, we are all here to stay.

Era of Reconciliation: A Sacred Relationship

March 1, 2016 By Troy Hunter

The truth be told, Canada’s dealing with its Indigenous populations has a dismal historical record. The Truth and Reconciliation Commission has faced this issue head on. In its report, it states:

Residential schooling was only a part of the colonization of Aboriginal people. The policy of colonization suppressed Aboriginal culture and languages, disrupted Aboriginal government, destroyed Aboriginal economies, and confined Aboriginal people to marginal and often unproductive land. When that policy resulted in hunger, disease, and poverty, the federal government failed to meet its obligations to Aboriginal people. That policy was dedicated to eliminating Aboriginal peoples as distinct political and cultural entities and must be described for what it was: a policy of cultural genocide.

What is beyond dispute is that we as Canadians have now entered into the “Era of Reconciliation”. Not only did the Truth and Reconciliation Commission wrap up its work, it handed the Report, along with 94 recommendations, to the newly elected Government of Canada, which is led by a majority government under the Liberal Party of Canada.

Justin Trudeau was true in form and spirit to attend personally at the Truth and Reconciliation Commission “handing over” ceremony. Moreover, his mandate letters to his newly appointed Ministers as well as his public commitment make clear that all 94 of the recommendations are to be implemented and that the first order of business is implementing the United Nations Declaration on the Rights of Indigenous Peoples.

Honourable Prime Minister Justin Trudeau stated on APTN national television on 15 October 2015, that, “As a first order of business the Liberal Party of Canada in government will implement the United Nations Declaration on Indigenous Rights.” He also said in his victory speech, “You want a Prime Minister that knows that a renewed nation-to-nation relationship with Indigenous peoples that respects rights and honours treaties must be the basis for how we work to close the gap and walk forward together”. This walking forward together is like the two-row wampum: two canoes going in the same direction, side by side, that is what our nation-to-nation relationship needs to be.

There are two aspects to the work of the Truth and Reconciliation Commission. First, the Truth aspect acknowledges the past: it is the facts, it is what is in the Report, it is the history and it is what it is. Nothing can change our past. The second aspect is Reconciliation going forward. Reconciliation has often been suggested by the courts in Aboriginal title litigation. At times like these, the words of the late Chief Justice Antonio Lamer of the Supreme Court of Canada are recalled when he said in the Delgamuukw case:

… Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve … a basic purpose of s. 35(1) — “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”. Let us face it, we are all here to stay.

The direction from the courts is to negotiate instead of litigate. It is this second aspect in which the work must begin, it is what stands before all of us now.

Some children never returned to their home communities. They simply vanished, like the many missing and murdered indigenous women in Canada.There is one thing that is certain now: Canada is at a turning point. The official stance now is that we are on a nation to nation basis:i.e. Canada and First Nations. It is indicative of a partnership, it is indicative of the vision of the two-row wampum, it is indicative of the kind of vision that the Indian chiefs had in 1911 when they wrote to then Prime Minister, Sir Wilfred Laurier.

What is often referred to as the “Memorial to Sir Wilfred Laurier” is basically a petition letter signed by many of the chiefs of British Columbia, in unity, in seeking reconciliation, in seeking what was originally always said to them when the land became colonized, and that is we will share the land equally:

These people wish to be partners with us in our country. We must, therefore, be the same as brothers to them, and live as one family. We will share equally in everything—half and half—in land, water and timber, etc. What is ours will be theirs, and what is theirs will be ours. We will help each other to be great and good.

While Prime Minister Laurier pledged to help the Indians, the petition letter delivered to him was never fulfilled because Sir Wilfred Laurier wasn’t re-elected the following year. Instead of Canada embarking upon a path of reconciliation, it went further into a dark time for its Indigenous peoples with policies that stripped the Indian out of Indigenous children, stripped the Indian of freedoms, stripped the Indian with harsh cultural genocide.

There is one thing that is certain now: Canada is at a turning point. The official stance now is that we are on a nation to nation basis:i.e. Canada and First Nations. Residential schools were the way of the 20th century for Indian children. Indians were practically confined to Indian reservations and the wealth of their forefathers, the freedom of the lands their ancestors fought for, was taken away. Promises had been made, treaties were set out, but the powers that be did not want to share the wealth with its Indigenous populations. Instead of building alliances and a true partnership with the original inhabitants, laws were put into place including the outlawing of sun dancing and the practice of holding potlatches. Indian culture was suppressed and Indian residential schools were designed to eradicate Indian spiritual and cultural practices.

The legacy of residential schools has both its good and bad. Indian children learned to read and write in English, they became literate. In some schools, known as industrial schools, Indian children learned things such as farming and cultivation, sewing clothes, making shoes, raising livestock, etc. The negative aspects: loss of Indigenous language, culture and spiritual practices; loss of family and parenting skills; and rampant physical, sexual, verbal and emotional abuse. There are countless stories of what happened to the children, and stories of missing records of what happened. Some children never returned to their home communities. They simply vanished, like the many missing and murdered indigenous women in Canada. The legacy of the residential schools survives from generation to generation in dysfunctional families, communities and individuals.

This walking forward together is like the two-row wampum: two canoes going in the same direction, side by side, that is what our nation-to-nation relationship needs to be.The policy of the government and the residential schools was to put the Indian people into a second-class of citizenship. In fact, Indians were not allowed to hire lawyers to fight for their rights, they were not allowed to own or pre-empt land, they could not vote. Those are the laws and policies of the 20th century. They are directly responsible for the plight of the red man. They are also responsible for attitudes of non-Indigenous peoples who think that Indians have a free ride, they don’t pay taxes, everything is given to them based on the tax dollars that they work hard to pay, that Indians are alcoholics, drug addicts, basically bums that have no place in society except at the bottom of the “totem” pole. They are the low class, the second-class, those that don’t matter. Indians’ lives can be taken away: the hitchhiking Indian women that are never to be seen again or the sex workers who lost their lives due to inefficient police investigations and serial murderers.

As we are now in the era of reconciliation, there must be major change. The light on the horizon is because of the newly elected Prime Minister Justin Trudeau; it is because of the work of the Truth and Reconciliation Commission; it is because there is hope. As we move into the 21st century, with a new government and a new mandate, we have now entered into the Era of Reconciliation. Reconciliation is a matter of give and take; to come to consensus about what is right and proper. It is a two-way street. Let us hope and pray that we can all get it right this time, for let’s face it, after all, we are all here to stay.

The Best Interests of the Aboriginal Child

March 8, 2015 By Troy Hunter

In the British Columbia Family Law Act, (FLA) Part 4, Division 7 – Extra-provincial Matters Respecting Parenting Arrangements, there is legislation designed to ensure the best interests of the child are met. The Court is guided by best interests on numerous factors including:

the child’s health and emotional well-being;
the views of the child if appropriate;the nature and strength of relationships between the child and significant persons;
the child’s history concerning their care;
their need for stability taking into consideration their age and stage of development;
the ability of a guardian or the person seeking guardianship or parental responsibilities to exercise such responsibilities, considering access, parenting time, and contact with the child;
family violence;
the safety or well-being of the child;
appropriateness of arrangements;
cooperation on issues; and
other court proceedings.

In addition to best interests, there are guiding principles that must also be adhered to including:

protection of the child from abuse, neglect, harm or threats of harm;
family as the preferred environment and responsibility for protection resting primarily with the parents;
any available support services;
the ability of a family in providing a safe and nurturing environment;
the child’s views;
kinship ties and preserving as much as possible a child’s attachment to extended family;
the preservation of the cultural identity of Aboriginal children; and
decisions being made and implemented in a timely manner.

In preserving cultural identity of Aboriginal children, this speaks to specifics such as where the aboriginal child has his or her aboriginal roots. The legislation defines an Aboriginal child as a child that is registered under the Indian Act, has a biological parent that is registered under the Indian Act, or who is a Nisga’a child, or a treaty first nation child, or one that self identifies to be Aboriginal and has Aboriginal ancestry. The definition is broad enough to encompass all children of Aboriginal ancestry including Metis, and there are no fractions or blood quantum restrictions.

An interesting case was before the B.C. Court of Appeal back in the late 1990s where a similar issue was raised under Article 13 of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention“). In Hoskins v Boyd [1997] B.C.J. No. 958, it was argued that, “the child will suffer grave risk of psychological harm if removed from his mother, who lives in an aboriginal community …, and placed with the father … in a non-aboriginal community in Oregon until final resolution of custody … The grave risk now said to be facing the child is the psychological harm likely to be caused by his dislocation from the aboriginal culture in which he and his mother have again lived since they returned from Oregon”.

The BCCA stated: … “the risk of harm alleged must go beyond the normal disruption expected on the removal of a small child. The situation must be intolerable.…Hoskins v. Boyd is useful in that it states: “The longer the child remains in one culture the more difficult it becomes to shift to another”. It is this feature that must be considered in the test for best interests of the child.. This is a severe test which the mother could not satisfy in the light of the fact that she took the child herself from the Aboriginal community in which the child was born to live in the father’s non-Aboriginal culture. In addition, Austin is a very young child and his enculturation in the Aboriginal community has developed only over the last 7-8 months.”

While psychologists, Elders, etc. supplied affidavit evidence speaking to the child’s best interests from an Aboriginal perspective, that evidence was not fully considered because the child was of mixed ancestry and that the Convention only covers the interests of children generally and not specific to individual circumstances, noting that “the courts of the requested state shall not decide on the merits of custody until they have determined that a child is not to be sent back under the Convention”. The risk of physical or psychological harm or otherwise that would place the child in an intolerable situation was decided upon without full consideration of the impacts to the individual child, specifically as to their s.35 Aboriginal rights as well as what the psychological harm would be for an Aboriginal child to be raised in a non-Aboriginal community or the converse, in an Aboriginal community. The BCCA decided to act under the general rule of the Convention that, “there must be prompt removal if there has been a wrongful taking and retention of a child contrary to the Convention”.

These arguments of psychological harm or otherwise were punted to the Oregon court where they could have been raised on the merits of “best interests of the child”. The BCCA decided that there was no need for prompt judicial intervention under the Convention even though, it correctly pointed out that, “The longer the child remains in one culture the more difficult it becomes to shift to another”. The BCCA also stated, “Nothing in these reasons should be taken as a commentary on the custody questions facing the Oregon court. There is a world of difference between the best interests of the child and whether an intolerable situation would result from removal”.

Getting back to the Family Law Act of B.C. with regard to best interests of the child and extra provincial matters regarding Aboriginal children, Hoskins v. Boyd is useful in that it states: “The longer the child remains in one culture the more difficult it becomes to shift to another”. It is this feature that must be considered in the test for best interests of the child. Undoubtedly, s.35 of the Constitution Act must also guide the courts in coming to any decision concerning the best interests of Aboriginal children because of their constitutionally protected Aboriginal rights which include cultural, social, political, and economic rights (socio-economic human rights).