Child Welfare

Asper Centre Panel on Indigenous Child Welfare & Self-Governance

Asper Centre Constitutional Roundtable Presents a Panel on

Indigenous Child Welfare & Self-Governance

with Prof John Borrows (the Loveland Chair of Indigenous Law, UofT Law), Prof Maggie Blackhawk (NYU Law) & Sara Mainville (JFK Law LLP)

Moderated by Asper Centre ED, Cheryl Milne

Thursday, October 31, 2024 at 12:30pm – 2:00pm (in person or virtual)

Room J130, Jackman Law Building, Faculty of Law, University of Toronto

All are welcome * Light lunch will be provided * Registration Required

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Background

Over the past few years, both Canadian and American courts have decided cases that impact Indigenous Nations’ ability to care for Indigenous children. Both countries have histories and present realities of removing Indigenous children from Indigenous homes, thereby jeopardizing the safety of Indigenous children and undermining Indigenous Nations’ sovereignty and governance. With this context in mind, the recent Supreme Court of the United States Haaland v Brackeen decision, and the Supreme Court of Canada Attorney General of Québec, et al. v. Attorney General of Canada, et al decisions are of paramount importance to Indigenous sovereignty and safety. Both cases address federal legislation introduced to address the historic and ongoing harms caused by the apprehension of Indigenous children by settler governments. In both countries, these decisions also demonstrate how child welfare is closely connected to Indigenous assertions of and rights to self-government.

The Asper Centre Indigenous Rights Working Group is pleased to present a panel event to unpack the significant legal issues and potential future implications of these cases, with a focus on the Quebec Reference case and its meaning for the interpretation of Section 35 of the Constitution and Indigenous self-governance.

Panelists

Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe) is professor of law at NYU and a prize-winning scholar and teacher of federal Indian law, constitutional law, and legislation. Blackhawk was awarded the American Society for Legal History’s William Nelson Cromwell Article Prize and her research has been published or is forthcoming in the Harvard Law Review, Stanford Law Review, Yale Law Journal, Supreme Court Review, American Historical Review, Legislative Studies Quarterly, Journal of the Early Republic, and Journal of Politics. Much of her scholarship explores the relationship between law and power, with a particular emphasis on the ways that subordinated peoples leverage law to shift power to their communities—especially outside of rights and courts-based frameworks. Her recent projects have focused on the laws and legal histories of American colonialism and the central role of the American colonial project, including the resistance and advocacy of Native and other colonized peoples, in shaping the constitutional law and history of the United States.

Sara Mainville is a partner at JFK Law LLP and has been a member of the Ontario bar since 2005 and she is a member of the BC bar (2022) with specific matter approvals to practice in Nunavut and Quebec. Sara has a Management/Public Administration degree (Lethbridge) and a Bachelor of Laws from Queen’s University. She has a LLM from the University of Toronto and an Advanced Negotiations certificate from Harvard University, and a Certificate in Entertainment Law (Osgoode PD). In 2014, Sara was elected as Chief of Couchiching First Nation after the sudden death of her friend and mentor, Chief Chuck McPherson. Sara uses this experience as a former Chief to help leadership work past difficult issues, within Indigenous forms of dispute resolution, and walk the community through processes to encourage discourse and grassroots solutions to long-held problems. Sara has completed Advanced Negotiations training at Harvard University and dispute resolution, legislative drafting, and mediation training at professional institutes in order to advance her clients’ long held goals for self-determination and truer treaty partnerships in Canada. Sara is generally seen as a subject-matter expert about Crown-Indigenous relations, the United Nations Declaration on the Rights of Indigenous Peoples, Treaty 3, and Anishinaabe Inakonigewin. However, Sara sees herself as a life-long learner willing to meet in community, read voraciously, and listen intently to better understand Indigenous knowledge systems across Canada.

John Borrows B.A., M.A., J.D., LL.M. (Toronto), Ph.D. (Osgoode Hall Law School), LL.D. (Hons., Dalhousie, York, SFU, Queen’s & Law Society of Ontario), D.H.L, (Toronto), F.R.S.C., O.C., is the Loveland Chair in Indigenous Law at the University of Toronto Law School. His publications include, Recovering Canada; The Resurgence of Indigenous Law (Donald Smiley Award best book in Canadian Political Science, 2002), Canada’s Indigenous Constitution (Canadian Law and Society Best Book Award 2011), Drawing Out Law: A Spirit’s Guide (2010), Freedom and Indigenous Constitutionalism ((Donald Smiley Award best book in Canadian Political Science, 2016), The Right Relationship (with Michael Coyle, ed.), Resurgence and Reconciliation (with Michael Asch, Jim Tully, eds.), Law’s Indigenous Ethics (2020 Best subsequent Book Award from Native American and Indigenous Studies Association, 2020 W. Wes Pue Best book award from the Canadian Law and Society Association). He is the 2017 Killam Prize winner in Social Sciences and the 2019 Molson Prize Winner from the Canada Council for the Arts, the 2020 Governor General’s Innovation Award, and the 2021 Canadian Bar Association President’s Award winner.  He was appointed as an Officer of the Order of Canada in 2020. John is a member of the Chippewa of the Nawash First Nation in Ontario, Canada.

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First Nations Child Welfare: the Challenges of Overcoming Colonization and Removal

Posted on by Tal Schreier

by Kylie de Chastelain

On October 28, 2019, the Indigenous Initiatives Office at the Faculty of Law hosted lawyers Maggie Wente and Sinead Charbonneau from Olthius Kleer Townshend LLP for a presentation entitled: First Nations Child Welfare Practice Post-Caring Society. Wente and Charbonneau provide legal representation and support to First Nations governments and communities as they navigate heavily bureaucratic, complex child welfare systems across Canada. Their presentation focused on the numerous challenges and opportunities for change that they have observed.

In 2016, the Canadian Human Rights Tribunal handed down what is colloquially known as the “Caring Society” decision. The Caring Society case was a complaint brought by Cindy Blackstock of the First Nations Child and Family Caring Society and the Assembly of First Nations (“AFN”) which alleged that the Canadian government was discriminating against First Nations children on reserves by allocating substandard and inequitable funding for child welfare services there. The Human Rights Tribunal held that discrimination was occurring through inadequate funding and also through a failure to provide culturally appropriate services. Further, the Tribunal held that Canada had not properly implemented Jordan’s Principle and ordered the Canadian government to rectify this.

Charbonneau provided an impassioned explanation of Jordan’s Principle, which is named for Jordan River Anderson; a child from Norway House, Cree Nation in Manitoba. Jordan was born with complex needs which required constant hospitalization and was transported away from his community to Winnipeg to receive treatment. When it was established that Jordan would not live very long, doctors recommended that he be transported back to his community with palliative medical supports. A long fight ensued between the federal and provincial government, with the federal government claiming that the province should cover Jordan’s costs as a healthcare matter, and the provincial government refusing to do so because Indigenous affairs are under federal jurisdiction. The matter was never resolved and Jordan died in hospital, never having returned home. Jordan’s Principle was developed by First Nations and the Caring Society in response to the discrimination and inadequate care Jordan experienced.

According to Charbonneau, Jordan’s Principle calls for substantive equality for First Nations children; not simply treating all children “the same,” but recognizing that First Nations children require additional supports and services in order to reach the same footing as non-Indigenous children. In the context of child welfare, the need for substantive equality is great. First Nations children come from a long colonial history of forced removal, racism, and abuse at the hands of the Canadian government. Today, when child welfare services interface with First Nations communities, this colonial legacy – and enduring discrimination – complicates efforts to assist families and children. As Wente and Charbonneau described, part of the problem is that the landscape is heavily bureaucratic. In addition to federal frameworks, there are First Nations child welfare services and provincial child welfare services that overlap and disagree about what will best serve Indigenous children. Moreover, First Nations organizations are often poorly funded, which makes it difficult for them to exercise jurisdiction even when they have it.

Wente explained that often, the only way for First Nations children to access services is to for them to become wards of the state. Wente has worked with several Innu communities in Newfoundland and Labrador that have been forced to put their children into care for this reason. In one case, Wente described, the mother of a suicidal child put him into care so that he could be hospitalized and access the mental health services he urgently required. However, the mother was not fluent in English, and when a representative from Newfoundland’s Department of Children, Seniors and Social Development came to complete the paperwork, they had the mother unknowingly sign documentation that stated the child was no longer safe in the home and needed protection. Presently, the child is eager to return home, but because the mother electively signed paperwork admitting him into care, it will be incredibly difficult to return him to his family. According to Wente, cases like these are far from rare, and they pose huge obstacles for First Nations communities.

Ultimately, Wente and Charbonneau shared a brief glimpse into what it means to work for reconciliation and equality within an enduringly-colonial and bureaucratic system. Above all, it is clear that Canada must make tremendous improvements where First Nations children and child services are concerned.  In this regard, it remains to be seen to what extent the recently passed bill An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, which was co-developed with Indigenous partners and affirms Indigenous peoples’ right to jurisdiction over child and family services, will make a consequential difference in the lives of First Nations children in the future.

Kylie de Chastelain is a 1L JD student at the Faculty of Law and is the current Asper Centre work-study student.

RESOURCES:

Find links to the Canadian Human Rights Tribunal decisions in the Caring Society case below and an Information Sheet on the Canadian Human Rights Tribunal Decisions on First Nations Child Welfare and Jordan’s Principle by the Caring Society.

2016 CHRT 2, 2016 CHRT 10, 2016 CHRT 16, 2017 CHRT 14, 2018 CHRT 4

Bill C92 – An Act Respecting First Nations, Inuit and Métis Children, Youth and Families