In the work to support Indigenous governments and their businesses, we sometimes forget about the children. Yet the 2016 Truth and Reconciliation Report and Calls to Action say otherwise and so should we. Fortunately, new proposed legislation as a result of the Grand Chief Ed John Report and the Seabird Island Case from 2016, won by Chantal Cattermole, have been the impetus for new BC legislation on child protection matters providing for First Nations standing as an active participant in child protection hearings.
When it comes to child protection in the Indigenous context, British Columbia has long recognized the importance of preserving a child’s cultural ties to their communities. Under existing legislation, the Ministry of Children and Family Development is obligated to take into consideration the child’s family ties, heritage, and identity when determining actions that are in that child’s best interests. Indigenous communities and families are meant to play a major role in the planning and delivery of protection and care services for Indigenous children. In practice, these considerations have often left major gaps and have, in some cases, prevented communities from effectively participating in child protection matters.
Indigenous communities have particularly experienced difficulty in obtaining standing to participate in child protection hearings. The Child, Family and Community Services Act (the “Act”), includes certain notice requirements that identify parties to child protection matters early in the process.
Bands and First Nations participate in child protection proceedings though a designated representative. The Director must serve notice on designated representatives of Bands or First Nations of a child is, or is entitled to be, registered as a member. Once notice is served the Band or First Nation, through its designated representative, it becomes a party to the action. The provisions of the Act have been interpreted narrowly and have caused a number of Bands to be excluded from participation in child protection matters. For example, a child may be registered with one Band, but also be entitled to be registered with another. Both of those Bands should be entitled to participate in child protection matters given the child’s cultural ties to both. Historically, only the Band with which the child is registered has been given standing to participate in child protection matters. The Indian Act prevents individuals from being registered on more than one Band list, despite registration entitlement.
In 2016, our partner Chantal Cattermole participated in an unreported child protection case (the “Seabird Island Case”). In that instance, the child was a registered member of the Peters Band, and was entitled to be registered as a member of the Seabird Island Band. The Seabird Island Band was not served with notice of the hearing, and subsequently brought an application for an order that would allow the Band to participate in child protection matters going forward. The Seabird Island Band argued that, despite the child not being a registered member, the Band should not be precluded from participating in the child protection process. The judge in the Seabird Island Case agreed – Bands with whom a child has any affiliation should not be excluded from participating in child protection matters, as this would be contrary to the spirit of the Act. The Act is meant to ensure that cultural heritage is appropriately protected. Including all interested Bands may also allow for a child to obtain access to a greater number of resources and services.
The result of the Seabird Island Case will require more work by social workers to ensure that all interested parties are included in important decisions about affected children, and has expanded the potential for standing of Aboriginal communities in child protection matters.
In November 2016, Grand Chief Ed John also released a comprehensive report relating the child welfare and protection system entitled: “Indigenous Resilience, Connectedness and Renunciation – From Root Causes to Root Solutions: A Report on Indigenous Child Welfare in British Columbia”. Child welfare is an important aspect of Indigenous governance. Communities have been working hard facilitate changes to the child welfare legislation to ensure greater participation of Indigenous communities in matters concerning their children, improvements in permanency options, and access to resources.
The Ministry of Children and Family Development has recently proposed a number of changes to the Act to facilitate Aboriginal communities’ participation in child protection matters. The legislative changes were primarily prompted by Chief Ed John’s Report, which included a range of recommendations to better incorporate Indigenous communities in child welfare matters. The proposed changes focus on Chief Ed John’s recommendations relating to, among a range of things, increased collaboration, support for communities seeking to incorporate or implement new processes or initiatives, and increased resources committed to facilitating permanency.
Notably, Recommendation 12 of the Report called for the Ministry of Child and Family Development to improve court proceedings relating to child welfare by adopting a collaborative approach to including communities from the outset of child protection files. This is intended to enable greater participation by communities in court proceedings or other processes.
Chantal’s win in the Seabird Island Case will bolster legislative changes to incorporate more flexible standing requirements for Bands into the Act. When making determinations about service, which will ultimately determine which parties may participate in the child protection process, the Ministry will be required to complete more comprehensive research to ensure that all entitled parties are notified of any child protection matter.
The Act has not considered whether a collective group may become party to an action without a designated representative. As it stands, it does not appear that the court has authority to grant standing to a collective group. However, the proposed amendments will provide a positive step forward in ensuring inclusion of interested Bands and First Nations through their designated representatives. While many of the 83 Recommendations from the Report remain unaddressed, this is indeed a positive step.
Now First Nations may be a full party to hearings before more children go into care or remain in care.