Indigenous Children

Child protection, education, health, criminal justice, cultural identity, family, economic and social conditions for Indigenous children are very different than they are for non-Indigenous children, and the practice of law across many of these areas calls for an understanding of these issues.

(See Truth and Reconciliation Commission Recommendation 27)

Convention on the Rights of the Child (CRC) Article 30 and more generally, the UN Declaration on the Rights of Indigenous Peoples, Indigenous laws and legal orders, the Constitution and the Charter have intersecting and special protections for Indigenous children and youth in all Canadian provinces and territories. Indigenous children benefit from the rights of all children as well as the rights specific to them, given the legal, social, economic, educational and health challenges they face as a result of the legacy and history affecting them.

The Youth Criminal Justice Act, as well as various provincial statutes regarding child protection, family law, health issues and property and wills and estates, expressly provide that Indigenous children, families, territories and Band Councils be given distinct consideration when applying Canadian law to situations involving Indigenous peoples. Treaty rights and land agreements are also applicable to resolving issues involving Indigenous children.

There is a legal and economic distinction between Indigenous peoples living on and off reserve, as well as between those who do or do not have recognised status. Matrimonial property on reserve is an ongoing issue being considered in various legal forums. There are many distinct groups of Indigenous children across Canada, with languages unique to their people and territories. Language rights also inure to Indigenous children and there is an effort in many communities to revive teaching Indigenous languages in public schools.

Education offers a common and shared value for Indigenous children, and is a key component of ensuring reconciliation. Indigenous pedagogies may be very different from non-Indigenous methods of teaching, and may, for example, require hands-on experiential learning as well as oral tradition. Indigenous peoples also have a strong historical and cultural sense of responsibility to the environment, and obligations are passed down to children through Indigenous ceremonies and protocols. Future generations, including children, are very influential in determining legal obligations communities have toward one another and toward land and resources. Hunting and fishing territories and practices are also bound by Canadian laws, with reference to special considerations for Indigenous rights.

The legacy of colonialism, treaty and land claims, the residential school system and Sixties Scoop destroyed Indigenous legal systems, cultural practices, social structures and family in communities in both rural and urban areas. Social and economic marginalization within Canadian cultures, coupled with the loss of identity have created an environment of high vulnerability for entire communities and particularly for Indigenous children. Indigenous children are significantly overrepresented in the child protection system. There is also an overrepresentation of Indigenous people who are incarcerated. Health care and mental health care must be provided having regard to this context, as intergenerational trauma continues to haunt Indigenous communities and children. The effects of removing children from their families, communities, and lands will be felt by Indigenous and non-Indigenous peoples across Canada as efforts continue to search for ways to assist in healing from these legacies. Suicide, incarceration, drug and alcohol, and mental health issues have all taken their toll on Indigenous children. Indigenous women and girls have gone missing or been murdered in staggering numbers.

In light of this, it is essential that Indigenous children be given the opportunity to maintain and develop strong connections to their own families, extended families, communities, and cultural and spiritual practices wherever possible. Indigenous peoples have shown immense courage, resilience and resistance. Trust, however, does not always come easily. Practitioners and courts that apply laws to Indigenous children have a responsibility to listen and understand issues that will not carry the same considerations for non-Indigenous children as they do for Indigenous children.

(See Report of the Truth and Reconciliation Commission and the Gove Inquiry into Child Protection (1995) (Report of the Gove Inquiry into Child Protection in British Columbia: Matthew’s Legacy, Volume 1.) Vancouver, British Columbia: The Inquiry, pages 24-25 online.  

Who Are Indigenous Children in Canada?

Traditionally, Indigenous groups are often distinguished by languages spoken as well as by hereditary ancestry and territories. There are hundreds of Indigenous groups across the country. However, the following are commonly referenced for legal purposes in Canada.

First Nations children are children entitled to be registered as ‘Indians’ and have status under the Indian Act in Canada. They may live on or off reserves. Eligibility for status for children has evolved since the Indian Act was first amended in 1951 but has been plagued by imposed definitions of identity, and specifically by gender discrimination. This issue has benefited from litigation in McIvor v. Canada (Registrar of Indian and Northern Affairs), 2009 BCCA 153) and the decision of Descheneaux c. Canada (Procureur General) 2015 QCCS 3555. The Act, by limiting eligibility when status First Nations people marry non-status people, has been found to infringe on women and girls’ Charter s. 15 equality rights. Bill C-31 addressed the issue, and children affected by this Bill are still working to regain their status or those of their children or grandchildren. While litigation has been instrumental in challenging the rules applied to eligibility, there are still children who are affected by the historical family lines that prevent them from gaining status as a result of who their grandparents or parents married. Therefore, the Indian Act has been seen to be a restrictive instrument in legislating identity, and benefits available to status “Indians” are not available to every child who identifies as Indigenous.

Under the Indian Act, a person is entitled to be registered if at least one of their parents has s. 6(1) Status, or if both of their parents have s. 6(2) Status. As many registered ‘Indian’ people lost their status under the old regime, there are children affected by this problematic regime. Indigenous legal practices across Canada have their own diverse rules about family and identity, with a tendency to be inclusive rather than exclusive, and to welcome children, in particular, as part of distinct clan or family groups which have distinct social and legal obligations and roles in the community. The Indian Act and practices of non-Indigenous cultures has unsettled a sense of legitimacy and identity among Indigenous children and families.

The Indian Act exists in concert with some local Agreements, such as the Inuvialuit Final Agreement and the Yukon First Nation Final Agreements. This presents the possibility for groups to exercise sovereignty by establishing and maintaining their own membership for future beneficiaries, but so far has been subject to the provisions of the Indian Act.

Inuit children live in far Northern regions or on the East Coast. The Inuit have been considered ‘Indians’ for the purpose of s. 91(24) Constitution Act since Reference whether "Indians" includes "Eskimo”, [1939] SCR 104.

Innu children are often attributed to Inuit but the Innu have been classified as ‘Indians’ under the Indian Act since 2002.

Metis children are defined for the purposes of s. 35 of the Charter according to self-identification, ancestral connection, and community acceptance factors (R. v. Powley, 2003 SCC 43). The Powley and Daniels cases help to articulate and define Metis people and to ensure their identity is recognized by Canada.

Metis status is gained by applying to relevant Metis organizations across Canada. Applications are processed and accepted based on ties to historic Metis families or groups that have been recognized through the documentation of their lineage, largely through Church marriages, as well as Hudson’s Bay and Northwest company documents.

Metis children, in the Northwest Territories and other areas, have many community-based groups, councils, and corporations established to assist in achieving legal, community and political goals with each organization being governed with by-laws and a formal Constitution which govern membership and eligibility to vote.

Jurisdiction

Constitutional jurisdiction for Indigenous children in Canada generally rests with the federal government pursuant to the Constitution Act, the Charter, the Royal Proclamation and the Indian Act. However provincial jurisdiction frequently overlaps and creates uncertainty about which level of government has jurisdiction over Indigenous children. Funding for Indigenous children varies depending on whether they live on or off reserve and whether they are status or non-status under the Indian Act.

Jurisdictional issues can arise not only between the federal and provincial governments, but also between Indigenous and non-Indigenous law, and jurisdiction often plays a crucial role in the inadequate or unequal treatment of Indigenous children.

Federal, provincial, territorial and local government laws should respect the rights of Indigenous children both expressly when drafted and implicitly when interpreted.

Jordan’s Principle - Jordan’s Principle is a child-first principle to resolving jurisdictional disputes within and between federal and provincial/territorial governments that has been recognized by the courts . Where a jurisdictional dispute arises regarding the payment and provision of services to an on-reserve First Nations child, the government or government department first contacted should, without delay or disruption, pay for and provide those services that would ordinarily be available to other children in Canada; the dispute over payment for services can be settled afterwards by governments. A motion calling for the endorsement of Jordan’s Principle was unanimously passed in the House of Commons in 2007. See also First Nations Child and Family Caring Society et al. v. Attorney General of Canada, 2016 CHRT 2.

Indigenous Law and Legal Orders

Indigenous legal orders can affect Indigenous children, decision-making and child rights. These cultural laws, customs and practices reflect internal Indigenous political and justice systems and were largely formed pre-contact with Europeans. They are separate and apart from Western ideas of law. Indigenous legal practices were outlawed for many years, with penalty of incarceration. Indigenous peoples were also forbidden by Canadian law to hire legal counsel to represent them in asserting their land and treaty rights. Reconciliation requires non-Indigenous people and legal practitioners in particular to be aware of the issues, languages, and power dynamics that have prevented Indigenous people from exercising their own laws and rights on behalf of their children and youth.

Canada has a duty to listen to and learn about Indigenous law at every level of government and court, and become active in promoting the re-incorporation of Indigenous law into all areas of law affecting Indigenous children and their families and communities. (BC Chief Justice Lance Finch’s comments in “The Duty to Learn”).

The duty to consult Indigenous groups regarding resource development is well established in Canadian jurisprudence. Gladue principles that take into account a contextual analysis in sentencing and correcting the over-incarceration of Indigenous peoples have been widely applied in criminal law. Fishing laws recognise the social and ceremonial use of fish for Indigenous populations. For Indigenous children, it is of utmost importance for lawyers and legal practitioners to familiarise themselves with international, national, Indigenous and local legal tools to ensure that their distinct rights are protected.

See also Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 regarding non-encroachment of federal/ provincial/ territorial jurisdiction on Indigenous peoples.

International Law

  • CRC - Articles 30 (note: cultural practices are not protected if deemed prejudicial to the child’s dignity, health and development), 29 (education), 5 (extended family), 17 (media of cultural benefit, linguistic needs) and Guiding Principles:
    • CRC Article 2 - Non-Discrimination - note overlapping sources of discrimination, need for disaggregated data collection by government and positive measures to eliminate discrimination
    • CRC Article 3 - Best Interests of the Child - consider in light of the cultural and collective rights of the individual Indigenous child, but group’s best interests cannot trump child’s best interests
    • CRC Article 6 - Life, Survival and Development – respect for traditions and culture, respect harmonious development of child, note disproportionately high numbers of Indigenous children living in extreme poverty, high rates of infant and child mortality that require positive measures
    • CRC Article 12 – Participation - need for participation of Indigenous communities and children in developing culturally sensitive law, policy and programs; protocol may require elders to be heard when the child is heard in own language
  • United Nations Declaration on the Rights of Indigenous Peoples - Preamble (upbringing of children), Articles 22 (special attention paid to children and youth), 3 (self-determination), 7 (no forcible removal of children), 13 (know history, language, oral traditions, writings), 14 (education in own culture, language), 17 (protection from economic exploitation and interference with education), 19 (free, prior and informed consent prior to legislative or administrative measures), 21 (own political, economic and social systems/institutions), 25, 26 and 32 (right to land and resources, responsible to future generations), 31 (enjoy cultures, customs, religions, languages; develop economies and social and political institutions), 43 (survival, dignity and well-being)
  • International Convention on the Elimination of all forms of Racial Discrimination, 1965, Articles 2, 5
  • International Covenant on Civil and Political Rights, 1966, Articles 1, 24, 26, 27
  • International Covenant on Economic, Social and Cultural Rights, 1966, Articles 2, 10, 14, 15
  • International Labour Organization Convention No. 169, 1989, Articles 28, 29

See Additional Background.

Interpretive Sources

  • CRC General Comment No. 11 on the Rights of Indigenous Children (2009)
  • UN Human Rights Committee General Comment No. 23 on Article 27, ICESCR: culture manifests itself in many forms, including a particular way of life associated with the use of land and resources, especially in the case of indigenous peoples (General Comment 23 (article 27) 1994, U.N. Doc. HRI/GEN/1/Rev. 1, para.7)

Case Law

  •  Mayagna (Sumo) Awas Tingni Community. V. Nicaragua, Judgement, Inter-A. Ct. H.R. (ser. C) No. 79, para 140(d)) says that many of the rights in the Declaration on the Rights of Indigenous Peoples have attained the status of customary international law in light of the gradual emergence of international consensus on the right of Indigenous peoples to their traditional lands.

Canadian Law

Canada's Indigenous peoples enjoy special status and unique rights under Canadian law as a result of their original occupation and use of the land that now makes up this country, and the honour of the Crown is at stake in all government dealings with Indigenous peoples in Canada. Aboriginal and Treaty Rights are protected in s. 35 of the Charter:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

An aboriginal right is a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right which has continuity with the practices, customs and traditions of pre-contact times (i.e. the time of European contact)

An example of a traditional customs or practices that has been recognized as an Aboriginal Right for a child is traditional medicine. (Hamilton Health Sciences Corp. v. DH¸ 2014 ONCJ 603; 2015 ONCJ 229)

Treaty Rights may rest in historic (e.g. the numbered treaties) or modern day treaties (e.g. Nisga’a Treaty). Historic treaties are not frozen in time (e.g. the right to hunt has included a modern day hunting shelter (R. v. Sundown, [1999] 1 S.C.R. 393)

Section 91(24) of the Constitution Act, 1982 gives the Federal government “exclusive Legislative Authority” over “Indians and the Lands reserved for the Indians”, on reserve and outside reserves.

Although, s. 91(24) assigns exclusive law-making authority over Indigenous peoples, this jurisdiction is not absolute and certain subjects overlap with provincial jurisdiction, creating uncertainty about which level of government has jurisdiction over Aboriginal children (e.g. Canada generally pays for services for Aboriginal children residing on reserve while the Province pays for services off reserve but disputes arise for Aboriginal children living off reserve: Jordan’s Principle is a procedure that bridges this jurisdictional gap regarding payment of services for Aboriginal children.)

Jurisdictional issues arise not only between the federal and provincial governments, but also between Indigenous and non-Indigenous law, and jurisdiction often plays a crucial role in the inadequate or unequal treatment of Indigenous children.

Provincial legislation such as child protection statutes require that Aboriginal culture, identity and heritage be considered as part of the best interests of the child test.

  • Constitution Act, 1867 – s. 91(24) gives the Federal government exclusive Legislative Authority” for Indians and the Lands reserved for the Indians”.
  • Charter, 1982
    • s. 35 (Aboriginal (First Nations, Inuit, Metis) and Treaty Rights are protected)
      • Aboriginal right is a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right which has continuity with the practices, customs and traditions prior to the time of European contact
      • Treaty Rights may be historic (e.g. the numbered treaties) or modern (e.g. Nisga’a Treaty)
      • s. 25 (nothing in the Charter can take Aboriginal and Treaty rights away)
  • Indian Act - applies to First Nations children living on reserves in Canada and authorizes the federal government to regulate and administer the day-to-day lives of registered Indians and reserve communities in governance, land use, healthcare, education, and more

Canadian Law to Achieve Indigenous Goals

  • Indigenous communities may use self-government, delegated authority and other mechanisms to establish Western laws for Indigenous children. For example:
    • Splatsin By-law 3 “A By-law For The Care of Our Indian Children: Spallumcheen Indian Band By-law #3-1980” (the By-law”) which reflects our own laws for the care of our children and recognizes that “there is no resource that is more vital to the continued existence and integrity of the Indian Band than our children”
    • Tsawwassen First Nation 2009 Children and Families Act, one of many laws of this self-governing nation negotiated a modern day treaty
    • Akwesasne Justice and Mohawk Court aimed at delivering justice centered on traditional Mohawk principles

Case Law

First Nations Child and Family Caring Society et al. v. Attorney General of Canada, 2016 CHRT 2 – do First Nations children resident on reserve or residing in the Yukon receive equitable child welfare services? No. The Tribunal found the Canadian government racially discriminates against them by providing flawed and inequitable child welfare funding and services to First Nation child and family service agencies. This provides an incentive to remove children from their homes as a first resort rather than a last one. The government also failed to implement Jordan’s Principle, to the detriment of First Nations children. The Tribunal ordered the federal government to: (1) cease its discriminatory practices regarding child and family services; (2) reform the FNCFS Program and the 1965 Agreement; (3) cease applying a narrow definition of Jordan’s Principle, and (4) take immediate measures to implement the full meaning and scope of Jordan’s Principle.

Hamilton Health Sciences Corp. v. DH¸ 2014 ONCJ 603; 2015 ONCJ 229 - could an 11 year old girl, from Six Nations of the Grand River use her culture’s traditional medicine after consent to continue chemotherapy was withdrawn? Yes. This ability was challenged by the hospital administering the chemotherapy on the basis that the child was not capable of making an informed decision and was in need of protection. The Court agreed that the child lacked capacity but found that the mother’s right, as substitute decision-maker, to choose traditional medicine was constitutionally protected by s. 35 of the Charter, and the child was not in need of protection in the exercise of this right. In an addendum to the decision, the Court indicated that “recognition and implementation of the right to use traditional medicines must remain consistent with the principle that the best interests of the child remain paramount.”

Pictou Landing Band Council v. Attorney General, 2013 FC 342 - Must Jordan’s Principle be considered when a Band seeks reimbursement from Canada of expenses incurred for a child located on reserve? Yes. Reimbursement was sought for the provincial maximum of $2200 for exceptional costs incurred after the mother of a teenager with multiple disabilities suffered a stroke. Jordan’s Principle is a child-first principle that requires the government department first contacted, whether federal or provincial, for a service readily available off-reserve, to pay for it and then pursue reimbursement of expenses from the appropriate source. It is intended to prevent Aboriginal children from being denied equal access to services and protection available to other Canadians.

Descheneaux c. Canada (Procureur Général), 2015 QCCS 3555 (CanLII) - Do membership provisions of the Indian Act discriminate against First Nations women and girls? Yes. The Court declared that paragraphs 6(1)(a),(c) and (f), as well as subsection 6(2) of the Act unjustifiably infringe s. 15 of the Charter and are inoperative. However, the declaration of invalidity was suspended for 18 months to allow Parliament the opportunity to amend the law. The eventual effect of this decision will be that the gender-based discrimination found in the registration provisions of the Indian Act will cease, and the affected women will be able to pass their status to their children and grandchildren in the same way as their male counter-parts without being denied due to the “second generation cut-off rule”. The Canadian government withdrew their appeal of this decision.

Racine v. Woods, [1983] 2 SCR 173 - was it in the best interests of a First Nations child to be adopted into a Metis and non-Aboriginal family? The Court held the adoption was in the best interests of the child and the adoptive family was able to provide enough cultural support for the First Nations child. Critics of this case say the Judge gave a higher value to the individualistic nature of the best interests of the child rather than the collective interests of First Nations [See Kline, Marlee, “Child Welfare Law: Best Interests of the Child Ideology and First Nations” ,1992 30 Osgoode Hall LJ at 375 and 396].

Brown v. Canada (Attorney General), 2017 ONSC 251 - In this proceeding initiated on behalf of survivors of the “Sixties Scoop” in Ontario, the Court found that there was a certifiable class action related to the following question: “In Ontario, between December 1, 1965 and December 31, 1984, when an Aboriginal child was placed in the care of non-Aboriginal foster or adoptive parents who did not raise the child in accordance with the child’s Aboriginal customs, traditions, and practices, did the federal Crown have and breach a fiduciary or common law duty of care to take reasonable steps to prevent the aboriginal child from losing his or her Aboriginal identity?” After eight years of protracted procedural litigation, the Court found in favour of the class Plaintiffs, determining that Canada is liable in law for breaching a common law duty of care to take steps to prevent Indigenous children who were placed in the care of non-Indigenous foster or adoptive parents from losing their Indigenous identity.  Similar class actions in relation to the Sixties Scoop have been initiated in British Columbia, Alberta, Saskatchewan and Manitoba.

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