Wrapping Our Ways Around Them - Cwrp.ca

WRAPPING OUR WAYS AROUND THEM:Aboriginal Communities and the CFCSA GuidebookInvolvement of Aboriginal communities could wrap laws and culturearound children and end the isolation parents and children experience within the child welfare process. This Guidebook suggests—in apractical way—how Aboriginal communities could be involved in childwelfare matters as contemplated by the CFCSA and sets out strategiesto actively seek and facilitate that involvement. This Guidebook proposes methaods for resolving child protection concerns starting fromthe premise that the early involvement of a child’s Aboriginal community can animate the provisions of the CFCSA directed at maintaininga child’s Aboriginal identity and heritage.BEST PRACTICE 1.01A transformative and remedial approach to involvingAboriginal communities in child welfare matters is required1. A transformative and remedial approach involvingAboriginal communities in child welfare matters under theCFCSA is required which: Reflects a belief that Aboriginal laws and communityapproaches to achieving safety and permanency canshift the legal ground and improve outcomes forAboriginal children; Places obligations on members of the extended Aboriginalcommunity to take positive actions in a process that mirrorsthe requirements within many Aboriginal legal systems andso have a higher likelihood of success; and Invites the Court, child welfare agencies, parents andAboriginal communities to work together to ensure thatthe interests of children are protected and placed atthe centre of decision-making, by recognizing an activevoice for Aboriginal communities and creating space forAboriginal ways of making decisions.Aboriginal Communities and ChildrenThe CFCSA allows for the active involvement of Aboriginal communities in planning for their child members.4 Despite this, participation by Aboriginal communities as legal parties remains rare. TheCFCSA requires that a child’s Aboriginal culture and identity bepreserved and creates legal party status for Aboriginal communitieswho choose to become involved in CFCSA matters. Interventions byAboriginal communities could breathe life into the CFCSA provisionsmeant to preserve a child’s Aboriginal identity and cultural connections by requiring that they be implemented and offering clear andeffective steps for how that could be done.401. Invitation to a Transformative Approach

WRAPPING OUR WAYS AROUND THEM:Aboriginal Communities and the CFCSA GuidebookThe child welfare system impacts entire Nations and communities—and yet individual children, parents and families often face thesystem alone. This disconnect prevents culturally based solutions.Interventions designed to heal families, or, where this is not possible,to protect children and keep them connected to their Aboriginalculture, could help to mitigate the negative impacts of involvementwithin the child welfare system. Acting in CFCSA matters today is astrong investment in the collective future for Aboriginal communities.This Guidebook proceeds on the basis that the rights of Aboriginalchildren should be understood in the context of their broader socialand cultural connections. Different members of Aboriginal communities have skills that can help to transform child protection situations, and often transformations cannot occur without their help.Child protection resolutions dictated solely to the parents—without abroader distribution of responsibility within an Aboriginal community,or extended family—are not likely to be successful. Solutions based onaccountability and compassion, under Aboriginal laws and traditions,place obligations on members of the broader Aboriginal communityto assist and take positive actions to help.Aboriginal communityinvolvement canmitigate negativeimpacts ofinvolvement in thechild welfare systemBEST PRACTICE 1.02Early and active interventions in CFCSA matters by Aboriginalcommunities is required1. Early and active interventions by Aboriginalcommunities when child members first become involvedin the child welfare system is required and could make areal difference in the future of Aboriginal childrenand communities.2. A distributed sense of responsibility whichrecognizes that people live in community, and that ouractions—or inactions—impact others now and intothe future, means that Aboriginal communities have astrong interest in acting now to protect theirchild members.CourtsCourts have struggled with how to understand the role and responsibility of Aboriginal communities in proceedings involving their childmembers. The current child welfare focus on parents and nuclearfamilies—from an Aboriginal perspective—leaves parents and children standing alone.01. Invitation to a Transformative Approach5

WRAPPING OUR WAYS AROUND THEM:Aboriginal Communities and the CFCSA GuidebookThis Guidebook: Provides methods and insights that allow the Court to engageAboriginal communities and receive the benefit of Aboriginalwisdom, strengths and solutions in making decisions that affectAboriginal children; Discusses biases and prejudices of the colonial past, whichfind expression, often unconsciously, in the political and legal culture, that can operate when decisions are made aboutAboriginal children; Identifies systemic barriers to the participation of Aboriginalcommunities in child welfare proceedings, and ways to minimizethose barriers; andBEST PRACTICE 1.03 Outlines how active efforts to involve Aboriginal communitiescould drastically change outcomes for Aboriginal children.A remedial and purposive approach to interpreting theCFCSA to protect a child’s Aboriginal identity and heritageand involving Aboriginal communities is necessary1. Highlighting the remedial purposes of the CFCSAprovisions that involve Aboriginal communities couldbreathe life into these provisions so that they arebrought to bear in a real and meaningful way in judicialdecisions about the lives of Aboriginal children.2. Effective legal problem solving requires acknowledgingand confronting biases and false assumptions aboutAboriginal cultures or parenting which result inAboriginal children being disproportionately removedfrom their families and communities.MCFD/Delegated Aboriginal AgenciesThis Guidebook suggests ways the director can ensure that the bestinterests of children are met through the active engagement ofAboriginal communities. In too many instances, the involvementof Aboriginal communities and protection of a child’s Aboriginalidentity and heritage, as required in the CFCSA, exist only as “paper rights” or requirements, but not in practice.601. Invitation to a Transformative Approach

BEST PRACTICE 1.04WRAPPING OUR WAYS AROUND THEM:Aboriginal Communities and the CFCSA GuidebookThe director should make active interventions to involveAboriginal communities1. The director should make active interventions toimplement CFCSA provisions involving Aboriginalcommunities based on the understanding that a child’sAboriginal community is in the best position to preservea child’s Aboriginal cultural identity and heritage, andthat this involvement can lead to better and lastingresolutions for Aboriginal children.Aboriginal Parents/Parents’ CounselAboriginalcommunities canidentify permanencysolutions thatkeep childrenconnected to theirAboriginal cultureBEST PRACTICE 1.05Efforts to resolve child protection concerns working solely withthe parents or immediate family are not likely to be successful,especially where Aboriginal parents cannot safely parent theirchild(ren) on their own, or come from families who have alsobeen unable to keep the children safe. Aboriginal communityinvolvement could distribute responsibility away from individualparents to the extended family and community and stand upteachings of forgiveness, compassion, love, wholeness and balance by identifying what it means to keep children safe withinthe Aboriginal cultures.Parents’ counsel can actively seek the involvement of a child’sAboriginal community1. Parents’ counsel can actively seek the involvementof a child’s Aboriginal community in CFCSA matters.Aboriginal communities may be able to provide supportsto help parents heal. If parents cannot restore theirability to safely parent, a child’s Aboriginal communitycan identify permanency options that can keep parentsinvolved in their child’s life and ensure that the childrenmaintain or develop connections to their Aboriginalculture and identity.01. Invitation to a Transformative Approach7

WRAPPING OUR WAYS AROUND THEM:Aboriginal Communities and the CFCSA GuidebookIII. Recognizing Continued Impacts ofa Colonial HistoryThe child welfaresystem reflectsthe disruption ofAboriginal peoples’social, political andlegal institutions, andintergenerationalharms of acolonial pastThe child welfare system reflects Canada’s history of colonization.Canadian laws and policies subjected Aboriginal peoples to “debilitating policies” which systematically weakened Aboriginal peoples’ legal,social and cultural traditions for the care of children and families:5 Generations of Canadian laws and policies denied Aboriginal titleand forcibly removed Aboriginal peoples from their territorialhomelands and undermined Aboriginal laws and governance systems: “[The] legal system has played an active role in the destruction, denial or limitation of First Nations cultural practices.”6 The Indian Act denied status recognition to Aboriginal womenwho married non-Indian men. These women (and their children) could no longer live within, or actively participate in, theirAboriginal communities. Denied recognition under Canadianlaw as “status Indians” generations of children were born without the legal right to live in their home communities, subject toboth cultural and geographic dislocation.7 This dislocation continues in many families involved in child welfare processes. The Residential School system forcibly removed Aboriginal children from their families, cultures and communities and preventedgenerations of Aboriginal people from parenting their children,while often subjecting those children to horrific levels of abuse.8Residential Schools “separated successive generations of Aboriginalchildren from their families and communities” damaging “feelingsof self-worth, family connectedness, the intergenerational transfer of skills and traditions, and the essential core of trust in andrespect for others.”9 Many child protection concerns are rooted inthe intergenerational impacts of trauma from Residential Schools.Aboriginal children came through these systems disconnected fromtheir Aboriginal communities and families. The child welfare system continues the large-scale removal ofAboriginal children from their families. More Aboriginal childrenlive away from their families and communities today as a resultof the child welfare system than lived away from their familiesin Residential Schools.10 Numbers of Aboriginal children in BC’schild welfare system have continued to grow since the closure ofResidential Schools. Over 52% of all children in care in BC as of2011 were Aboriginal.11 A class action suit is currently underway inOntario seeking to hold Canada accountable for the large numbers of Aboriginal children taken up in the “Sixties Scoop”.12801. Invitation to a Transformative Approach

WRAPPING OUR WAYS AROUND THEM:Aboriginal Communities and the CFCSA GuidebookAboriginal children and families involved in the child welfare systemtoday reflect the disruption of Aboriginal peoples’ social, politicaland legal institutions, and carry the intergenerational harms andviolence of a colonial past.Not surprisingly, the legacy of this history is that Aboriginalpeople continue to be disproportionately enmeshed withCanadian law and legal systems, reflected in the high numbers of Aboriginal peoples involved in criminal law, youthjustice, and child protection systems. To many Aboriginalpeople, the legal process continues this history of interference, domination, and control, and its operation is far removed from any concept of justice or fairness.13Outcomes forAboriginal childrenwithin the child welfaresystem are bleakBEST PRACTICE 1.06There is a significant over-representation of Aboriginal children atall stages of BC’s child welfare system and outcomes for these children are bleak. Placing increasing numbers of Aboriginal children incare has only amplified the problem over generations, not solved it;more Aboriginal children are at risk now as a result of interventionsthrough the child welfare system rather than less. Aboriginal children are: 4.4 times more likely to have a protection concern reportedthan a non Aboriginal child; 5.8 times more likely to be investigated;7.7 times more likely to be found in need of protection; 7.1 timesmore likely to be admitted into care; and, 12.5 times more likely toremain in care.14Creating a better future for Aboriginal children requiresacknowledging and addressing the impacts of colonizationand historic trauma that Aboriginal peoples have beensubject to1. Creating a better future for Aboriginal children requiresacknowledging and addressing the colonization andhistoric trauma that Aboriginal peoples have beensubject to, and which continues in decisions made underthe CFCSA today. Colonial endeavors, such as denial ofAboriginal title and laws; legislation and policies meantto attack and diminish the role of Aboriginal women;Residential Schools; and the child welfare system,continue to be reflected in the overrepresentation ofAboriginal children within the child welfare system.01. Invitation to a Transformative Approach9

WRAPPING OUR WAYS AROUND THEM:Aboriginal Communities and the CFCSA GuidebookEndnotes1. [RSBC 1996] Ch. 46.2. B.C. Reg. 533/95.3. B.C. Reg. 527/95.4. For example: s. 2; s. 33.1(4)(c); s. 34; s. 36(2.1); s.38(1)(c), (c.1), (c.2), (d); s. 39; s. 49(2)(c), (c.1), (c.2), (d); s.54.01(3)(c), (d), (e), (f); s. 54.1(2)(c), (d), (d.1), (e); s. 60(1)(e); s. 71 (3)(a); s. 90; s. 93(g)(iii); s. 103(2)(f), (g).5. The Royal Commission on Aboriginal Peoples.Report of the Royal Commission on AboriginalPeoples. Vol. 1: Looking Forward, Looking Back.(Ottawa: Royal Commission on Aboriginal Peoples,1996) [RCAP, Vol. 1] at 333-339 and Volume 3:Gathering Strength (1996): 23-29, 34-36 [RCAP, Vol. 3].6. St. Lewis, Joanne. “Virtual Justice: SystemicRacism and the Canadian Legal Profession” in RacialEquality in the Canadian Legal Profession (Ottawa:Canadian Bar Association, 1999) [St. Lewis] at 69; Seealso: Sarich, Anthony (Commissioner), Report on theCariboo-Chilcotin Justice Inquiry (Victoria Ministry ofAttorney General, 1993) [Sarich].7. Indian Act, R.S.C., 1985, c. I-5 (and earlier versions). See, for example: Corbierre v. Canada (Ministerof Indian and Northern Affairs), [1999] 2 S.C.R. 203,McIvor v. The Registrar, Indian and Northern AffairsCanada 2007 BCSC 827 (the trial judge extensively reviewed the discriminatory provisions, the BCCA considered this case in McIvor v. Canada (Registrar of Indianand Northern Affairs) 2009 BCCA 153), and Lovelace v.Canada, Communication No. R.6/24, U.N. Doc. Supp.No. 40 (A/36/40) (1981).8. For a general overview of the Residential Schoolsystem and its impacts see RCAP, Vol. 1, at 376-379,which recognized the connection “between theschools’ corrosive effect on culture and the dysfunction in their communities Abuse had spilled backinto communities, so that even after the schools wereclosed their effects echoed in the lives of subsequentgenerations of children ”9. Dussault, Justice Rene, “Indigenous Peoplesand Child Welfare: The Path to Reconciliation” FirstPeoples Child & Family Review, Vol. 3:3 (2007) 8 at9 [Dussault]. Ted Hughes in “BC Children and YouthReview - Keeping Aboriginal Children Safe and Well”1001. Invitation to a Transformative Approach(Victoria: April 2006) [Hughes] at 49-50 observed ofthe “inter-generational” impact of residential schools“I have no hesitation in laying a significant portionof responsibility for today’s unacceptable level ofinvolvement of Aboriginal families in our child welfaresystem on the doorstep of that ill-conceived programof years ago.”10. It is estimated that three times as many childrenhave been taken into the child welfare system thanever were taken into the Indian Residential Schools:See for example, Blackstock, C., “First Nations childand family services: restoring peace and harmonyin First Nations communities” in K. Kufedlt & B.McKenzie (Eds.), Child Welfare: Connecting ResearchPolicy and Practice, at 331-342. (Waterloo, Ontario:Wilfred Laurier University Press: 2003).11. Special Report by the Council of Child andYouth Advocates “Aboriginal Children and Youth inCanada: Canada must do better” submitted to UNCommittee on the Rights of the Child 2011, at 7.12. In Brown v. Attorney General of Canada, 2014ONSC 6967 (CanLII) [Brown], a panel of the OntarioSuperior Court of Justice rejected an application byCanada to dismiss a class action suit commenced onbehalf of people who were taken up in the “SixtiesScoop” where unprecedented numbers of Aboriginalchildren were removed from their homes. The suitalleges that “many of these children lost their identityas Aboriginal persons, and their connection to theirAboriginal culture, that ultimately led to them suffering emotional, psychological and spiritual harm. Morespecifically, it is alleged that these children were deprived of their culture, customs, traditions, languageand spirituality. This led them to experience loss ofself-esteem, identity crisis and trauma in trying to reclaim their lost culture and traditions.” (at para. 2)13. Walkem, Ardith. Building Bridges: ImprovingLegal Services for Aboriginal Peoples (Vancouver:Legal Services Society, 2007) [Walkem, LSS] at 1-2.14. Ministry of Children and Family Development,Aboriginal Children in Care, October 2009 Report,Prepared by Research, Analysis and Evaluation Branch,at 10. Available online: l-children-in-care-10-09.pdf.References omitted.

02. CFCSA and theLegal Landscape

WRAPPING OUR WAYS AROUND THEM:Aboriginal Communities and the CFCSA Guidebook02. CFCSA and theLegal LandscapeThe CFCSA occupies conflicted territory, with roots in deeply contested jurisdictional battles, arising from Crown governments’ historicaldenial of Aboriginal title, laws and legal orders, and also subject toongoing division of powers disputes between Crown governments.I. Aboriginal JurisdictionThere is a sphere of inherent Aboriginal jurisdiction, collectivelyvested, empowering Aboriginal peoples to care for and protecttheir children in accordance with their own legal orders. Aboriginalpeoples’ laws and legal orders pre-dated and survived the assertionof Crown sovereignty and received constitutional protection throughs. 35 of the Constitution Act, 1982: Mitchell v. M.N.R.,1 R. v. Van derPeet,2 and Delgamuukw v. B.C.3 Crown governments, for the mostpart, have ignored or denied this jurisdiction since Confederation.Nonetheless, Aboriginal laws remain an essential part of Canada’sconstitutional framework.Inherent Aboriginaljurisdiction empowersAboriginal peoples tocare for and protecttheir children inaccordance with theirown legal ordersCanadian courts have recognized the legitimacy of customarylaws, and encouraged solutions based on Aboriginal laws forchildren and families in the past. Recognition of Aboriginal lawsas “customary law” in Canadian common law is well establishedwhere the matters are primarily internal to Aboriginal communities. 4 In Connolly v. Woolrich,5 the Superior Court of Quebecrecognized a marriage under Cree law, noting that the arrival ofne

IV. Delegated Agencies 67 05. STEPS WITHIN THE CFCSA PROCESS 71 I. Voluntary Agreements 71 A. Support Services Agreements 72 B. Voluntary Care Agreements 72 C. Special Needs Agreements 72 D. Extended Family Program (Formerly Kith and Kin Agreements) 73 E. Agreements with Youth or Young Adults 73 II. Report, Assessment and Investigation 75 III.