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| Andrea Clarke |
There is a clear obligation on those advocating on behalf of Indigenous communities — a responsibility unlike any other. The legacy of injustices and trauma is long; many families within the myriad of the child welfare system are facing the most profound order that can be made: one terminating their parenting rights. In a system where 58 per cent of the children are Indigenous, although they constitute less than eight per cent of children nationwide, there have been systemic failures.
Indigenous factors and considerations have become significantly more visible in the legislative sphere; the challenge is that when these factors are not correctly applied, they form part of the systemic discrimination that has plagued marginalized and racialized groups for generations. Visibility without safety is simply exposing a demographic who has a long legacy of facing perpetrated injustices and systemic discrimination, which inevitably causes more harm and trauma, and is intended only to protect the legislation.
The extension of child welfare to First Nations considers legislation through a Eurocentric lens. The “best interests test” in legislation permits triers of fact to make decisions and determinations that are centred on the best interests of the child. The challenge with this test is that it is individualistic and abstract, conveying a tone of neutrality with an underlying assumption that individuals are all treated equally, without considering their relevant social circumstances. The long-established criticism of this form of legislation is that it provides a weighting toward equality and not equity, facilitating racial oppression.
While it is expected that the best interests test has developed flexibly, it has evolved within an ideological and contextual framework that limits what a court will factor into consideration when determining the best interest of children. Historically, there has been little emphasis placed on maintaining a child’s First Nations identity and culture. The courts have leaned toward an interpretive framework whereby the apprehension and removal of children from their First Nations families and communities gives the appearance of impartiality, necessity and legitimacy; the best interests principle becomes a convenient tool in facilitating oppression.
In the Supreme Court of Canada case of Racine v. Woods, [1983] 2 S.C.R. 173, the court ruled that when applying the best interests test, the importance of cultural heritage diminishes over time, as opposed to that of bonding. This perspective has proved troublesome, not least because later implications have shown children in these circumstances often have an identity crisis, resulting in a breakdown of the placement.
While there is likely to be little debate that the best interests of the child as an individual should be given adequate consideration, it cannot be done in an abstract framework without significant weighting toward the First Nations factors, particularly those that emphasize heritage and culture. The courts have used the legislation in child welfare decisions to interpret a child’s interests as separate from their familial and cultural context, rendering their heritage and cultural identity of little importance.
The primary concern with the approach taken by courts when applying legislation with the primary focus on an individualistic approach of the child is that it provides the guise of neutrality, making counterarguments far more challenging to make in legal terms. This subtle form of applying the legislation in a manner that is prima facie defensible has the detrimental effect of removing children from their heritage, families and cultures. Even when courts factor culture into the considerations of the best interests principle, each principle is applied in its abstract vacuum and takes insufficient consideration not merely of First Nations culture but also of the particular culture and heritage of the child, often without a determinative plan for how that culture will be maintained.
To a large extent, the challenge has been the thought process and unconscious biases embedded within the best interests principle. Placing this as the primary standard has been harmful and destructive for First Nations communities. There has been progress made with the 2024 Supreme Court ruling, which upholds the federal Act respecting First Nations, Inuit and Métis children, youth and families (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5). This decision affirms jurisdiction over child and family services, which aim to keep children with their families and communities. There is a concerted effort to reduce the number of Indigenous children in care. The Act establishes cultural continuity and substantive equality when considering the best interests of the child. This empowers First Nations to have increased control over their child welfare services, consistent with their goal of self-governance.
The key factors of this legislation are that it recognizes the inherent jurisdiction of Indigenous Peoples and establishes national standards for the welfare of Indigenous children, aligning with the principles in the United Nations Declaration on the Rights of Indigenous Peoples. However, funding and the application of the Act will be the determining factors as to how far we have truly come as a nation.
Andrea Clarke is a litigation lawyer who practised for a number of years in the United Kingdom and currently maintains a practice in Ontario and Nunavut focused on the areas of family, criminal and child welfare. Andrea currently sits as a panel member for the Office of the Children’s Lawyer in Ontario. Andrea is involved with the Ontario Justice Education Network, where she mentors high school teams in preparation for mock trials. Andrea, her husband and three sons reside in the Municipality of Kincardine, where she is the deputy mayor and is an advocate for diversity, equity and inclusion.
The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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