R esidential schools were an early manifestation of a child welfare policy of child removal that continues to this day. Since government and the churches believed that Aboriginal parents were inferior when it came to raising children, and could not be relied upon to raise them to be “proper” Canadians, a central objective of the residential schools was to separate Aboriginal children from their parents and communities to “civilize” and Christianize them.
For generations, children were cut off from their families. At the height of the system in 1953, just over 11,000 Aboriginal children were in residential schools.1 A 1953 survey suggested that 4,313 of them were thought to be suffering from “neglect” at home.
The end of the residential school system did not mean that Aboriginal children were no longer forcibly separated from their families. Child welfare services carried on where the residential schools left off. More Aboriginal children are removed from their families today than attended residential schools in any one year. Following the inquiry into the death of an Aboriginal girl in Manitoba, the Honourable Ted Hughes concluded that the overrepresentation of Aboriginal children in care in Canada is “unconscionable” and “a national embarrassment.”2
Why are so many Aboriginal children taken into care? Poverty, family violence, sexual violence, and substance abuse—conditions that are part of the sad legacy of residential schools—certainly play a role. The connection between residential schools and the present-day crisis of the overrepresentation of Aboriginal children in the child welfare system was painfully obvious to many Survivors who shared their statements with the Commission. Kay Adams explained that “all these years of growing up in the dorm I didn’t go home to my family. I wasn’t taught how to love. I wasn’t taught how to be a family. I knew none of that.”3
Tim McNeil felt the impact of residential schools when his children were older: “I was a good parent until my kids turned thirteen, and when my kids turned thirteen then I started parenting them the way that I was when I was in school. So suddenly my love was gone, my affection was gone, my time was gone. I started treating them the way I was treated in the dorm. And that was with strict rules, strict discipline, you had to follow a certain order, there was no love, there was no affection.”4 These Survivors suffered in residential schools. Their children suffered because of their suffering.
The perception that separation from their families is in the best interests of Aboriginal children may still be influenced by assumptions about the inferiority of Aboriginal parenting. These assumptions seem to be reflected in funding for child welfare services. Federal funding of on-reserve child welfare has been the subject of prolonged litigation before the Canadian Human Rights Commission and the Federal Courts since 2007. Aboriginal groups have long argued that not only is the amount of funding inequitable, but also the funding structure shows a preference for taking Aboriginal children into care rather than providing supports that would allow them to remain safely with their parents.5
At five years old, Daniel Big George and his four-year-old sister were taken to a residential school. He did not see his family for over two years. Reflecting on today’s child welfare system, Big George observed, “they’re utilizing the [Children’s Aid Society] as how the residential school system was run.”6 At Commission hearings in Inuvik, Chief Norma Kassi agreed: “the doors are closed at the Residential Schools but the foster homes are still existing and our children are still being taken away.”7
For many years the assimilation of all Aboriginal people was government policy, and residential schools were one of the tools used to implement that policy. At the same time, protecting Aboriginal children from their parents was often the stated reason for forcibly removing children from their homes. Aboriginal parenting was considered inferior, a prejudice that clearly shows in documents throughout the long history of residential schools.
In his 1879 report on residential schools, Nicholas Flood Davin wrote that “the children should be kept constantly within the circle of civilized conditions.”8 A few years later, in 1883, according to Indian Commissioner Edgar Dewdney, residential schools were preferable to day schools for producing workers:
[It is] difficult to make day schools on reserves a success, because the influence of home associations is stronger than that of the school, and so long as such a state of things exists I fear that the inherited aversion to labour can never be successfully met. By the children being separated from their parents and property and regularly instructed not only in the rudiments of English language, but also in trades and agriculture, so that what is taught may not be readily forgotten, I can but assure myself that a great end will be attained for the permanent and lasting benefit of the Indian.9
Over two decades later, in 1915, the principal of the Kuper Island school in British Columbia wrote that the “only way” to educate Aboriginal children “is to bring them to an industrial school, where they are completely under the control of their teachers, and separated from the evil influences of most of their homes.”10
These architects and administrators of the residential school system believed that Aboriginal children would be much better off away from their parents. Residential schools were often deliberately built at a distance from reserves to discourage Aboriginal parents from even visiting their children.11
Compulsory schooling and school attendance has been in place in Canada since the 1870s. However, compulsory attendance laws provided that, for non-Aboriginal children, school attendance was not mandatory if the school was not conveniently close to the child. Non-Aboriginal children were not required to attend schools where they could not return to their families each day.12
In 1894, the Indian Act was amended to authorize the government “to secure the compulsory attendance of children at school.”13 Government officials had already noted the necessity for family ties to be “severed during the school term.”14 The Regulations Relating to the Education of Indian Children granted Indian agents and justices of the peace the power to authorize the apprehension and placement of Aboriginal children in industrial or boarding schools, if they were satisfied that their parents or guardians were “unfit or unwilling to provide for the child’s education.”15 Indian agents were authorized to appoint truant officers with “police powers.” A year later, the acting superintendent general of Indian Affairs asked the Department of Justice to develop a standard warrant for the removal of Aboriginal children from their families where “adequate provision is not being and will not be made for the care, or education or the education and care of the said [child].”16
Twenty years later, in 1914, an Indian Affairs circular was reminding Indian agents that the government had the power to place children “who are not being properly cared for or educated” in residential schools. Agents were told that “orphan children and children neglected by their parents should have the preference.”17 Thus, apprehending Aboriginal children, for assimilation purposes or in response to perceived neglect, became routine over a hundred years ago.
Support for residential schools had decreased by the Second World War, and the federal government started closing residential schools in some parts of the country. However, in 1943, senior civil servant R. A. Hoey warned that places in residential schools would still be necessary for “orphans and children from disrupted homes.”18 With fewer places available, the emerging cadre of professional child welfare workers were to give priority to admitting children considered to be neglected.
In 1947, the Canadian Welfare Council and the Canadian Association of Social Workers collaborated on a report to a Special Joint Committee of the Senate and the House of Commons that was examining the Indian Act. The two organizations argued for the assimilation of Aboriginal peoples to ensure “not only their admission to full citizenship, but the right and opportunity for them to participate freely with other citizens in all community affairs.”19 The authors noted disparities in the education, health, and welfare services provided to Aboriginal people. They recommended immediate reforms to address the gaps. One of their recommendations was to investigate extending provincial education, health, and welfare services to reserves.
The provinces and territories assumed responsibility for child welfare services on reserves in the 1950s, facilitated by amendments to the Indian Act in 1951 that allowed all provincial laws of general applications to apply on reserve.20 At first, the provinces and territories provided only emergency on-reserve services. With more federal funding, services expanded to receiving and assessing child protection reports, family services, guardianship of children in care, and adoption.21 Funding mechanisms encouraged the removal of children from their homes because, while the federal government was willing to pay for child-in-care costs, there was considerable resistance by both federal and provincial governments to support preventive services.22
Even as some residential schools shut down, provincial child welfare authorities began to apprehend increasing numbers of Aboriginal children. Many were eventually given up for adoption, often to non-Aboriginal families.
The provincial social workers assigned to reserves assessed child safety and welfare by mainstream cultural standards. They received little or no training in Aboriginal culture. They were not trained to recognize problems rooted in generations of trauma related to the residential schools. Instead, they passed judgment on what they considered bad or neglectful parenting. As a result, beginning in the 1960s, provincial child welfare workers removed thousands of children from Aboriginal communities. It has been called the “Sixties Scoop.”23
Aboriginal children were placed in non-Aboriginal homes across Canada, in the United States, and even overseas, with no attempt to preserve their culture and identity. The mass adoptions continued between 1960 and 1990.24
The Sixties Scoop children suffered much the same effects as children who were placed in residential schools. Aboriginal children adopted or placed with white foster parents were sometimes abused. They suffered from identity confusion, low self-esteem, addictions, lower levels of educational achievement, and unemployment.25 They sometimes experienced disparagement and almost always suffered from dislocation and denial of their Aboriginal identity.
Meanwhile, as Aboriginal children continued to be placed in residential schools and the mass adoptions of the Sixties Scoop were under way, some officials within Canada’s Department of Indian Affairs, as well as outside experts, were recommending the better solution of providing supports for parents.
In 1965, J. R. Tully, superintendent of the Blood Indian Agency, wrote, “the main reason for the majority of younger children being in Residential School here is because their parents just cannot afford to properly feed and clothe them for part of the school year.”26 He suggested that it was not efficient to house a child in residential school for ten months per year when the parents had economic problems for only four months. In the absence of “welfare assistance” for the parents, however, he concluded that there was no practical alternative to placing children in residential schools.
A confidential 1966 report by the Department of Indian Affairs estimated that 75% of the children in residential schools were “from homes which by reasons of overcrowding and parental neglect or indifference are considered unfit for school children.” Return to the reserve was considered undesirable because “the security that the child finds in the school is shaken on his return to the reserve.”27 The report noted that the substantial funds required for residential schooling might have been more usefully put towards “improving the home and training the parents” to increase “self support.”28 The report did not result in a policy change, and the money continued to go to the schools.
In 1967, George Caldwell, a child care specialist with the Canadian Welfare Council, investigated and reported to the federal government on placements in nine Saskatchewan residential schools. Caldwell noted that family welfare needs appeared to be the main reason for placing 60% of the children. Although “neglect” was frequently cited, Caldwell observed a “serious absence of recorded data on the child and the reason for admission is open to question because of this lack of information.”29 He recommended that services to assist Aboriginal families should “not be restricted to the narrow definition of investigating allegations or evidence of neglect of children, but recognition should be given to prevention of family deterioration, and professional services given to strengthen and maintain family life.”30
Caldwell, like the authors of the 1966 Indian Affairs report, believed that support for families would be a better and less drastic alternative to apprehending children or placing them in residential school. Caldwell’s humane and sensible recommendations were also not adopted.
In a 1983 report for the Canadian Council on Social Development, Patrick Johnston wrote that the child welfare system placed Aboriginal children in “triple jeopardy,” removed from parents, extended family, and culture:
The effects of apprehension on an individual Native child will often be much more traumatic than for his non-Native counterpart. Frequently, when the Native child is taken from his parents, he is also removed from a tightly knit community of extended family members and neighbours, who may have provided some support. In addition, he is removed from a unique, distinctive and familiar culture.31
As the Commission heard from some Sixties Scoop Survivors, the child welfare system continued a multigenerational cycle of displacement and alienation. Many children lost contact with both their families and their Aboriginal identity forever.
In a 1985 Manitoba public inquiry report, Associate Chief Judge Edwin Kimelman decried the systematic placement of thousands of Aboriginal children in white homes outside Manitoba and described the practice as “cultural genocide,” which had “taken place in a systematic, routine manner.”32 Judge Kimelman continued,
An abysmal lack of sensitivity to children and families was revealed. Families approached agencies for help and found that what was described as being in the child’s “best interest” resulted in their families being torn asunder and siblings separated. Social workers grappled with cultural patterns far different than their own with no preparation and no opportunity to gain understanding.33
The residential schools failed to protect Aboriginal children from abuse, but so did many child welfare agencies. The Commission heard from many Survivors of both residential schools and the Sixties Scoop.
A Sixties Scoop Survivor placed with a white family was told that her parents were “the drunken Indians on Main Street.” Her foster father sexually abused her and her brothers, and her brothers also sexually abused her.34
Tara Picard, whose birth name was Rhonda Eagles, was adopted into a white family and “was basically told that the First Nations people were really horrible people, and not to be that way.” She “turned into white, being white, more white than anything.”35
At the age of three, Marci Shapiro was taken from her mother, who had attended residential school, and adopted into a Montréal family: “There was a huge movement in the seventies, where they took children from Manitoba and put them into Montréal Jewish Family Services.” Many of those adoptees “are drug addicts. They’ve had children; their children go into care. It’s like the whole cycle’s been perpetuated and it continues.”36 She is committed to working with her community to help break the cycle.
One former student of the Christie Residential School in British Columbia was also placed in a number of foster homes. She was abused at the school and by her stepfather at home. She remarked, “That’s why I’m so against apprehension of our Aboriginal children. They should stay with the parents.… Don’t be like us, without our parents, that we never grew up with, we never really got to know.”37
Another woman who made a statement to the Commission in Alberta was placed in a foster home with three other children. She explained,
In that foster home there was a pedophile, and I don’t [know] what was happening to anybody else, but I became his target. The mother used to always send me to do errands with him. And so every time, he would make me do things to him and then he would give me candy. Also, in that home there was no hugging of us foster kids or anything like that. And I carried a great guilt for many, many years, because sometimes I didn’t want to resist it, I just … But I knew it was very bad.38
One foster child told the Commission of the abuse she suffered in her foster home. Her Aboriginal identity was constantly disparaged and she was “singled out” because she was “not as white as the others”: “[They were] adamant about Aboriginal culture being less than human, living as dirty bush people, eating rats. It made me not want to be one of those people. And for years, I didn’t know how to be proud of who I was because I didn’t know who I was.”
This person has now reconnected with her culture and made a great effort to attend one of the Commission’s gatherings. Her mother, who attended residential schools, “was led to believe that her mother and her sisters were heathens, living in the bush … because that’s what the church had told her.”39 However, her mother and her own daughters remain estranged from their family, their community, and their culture.
Joanne Nimik, the daughter of two residential school Survivors, was apprehended at age four and adopted by a white family. Until she reconnected with her birth mother, she had “limited exposure to Aboriginal culture.” She had difficulties growing up, and when she was eighteen she “went into the bad crowd and started partying and drinking and drugging.” Only recently has she realized how much residential schools affected her life. With the help of her family and Aboriginal traditions, she is determined to “break the cycle”40 in which generations of families are involved with the child welfare system.
Class actions before courts across the country are seeking accountability and compensation from the federal government for the Sixties Scoop.41 The federal government is vigorously fighting these suits. In December 2014, an Ontario court dismissed the federal government’s attempt to have the Ontario-based class action thrown out. In allowing the class action to continue to the next stage, the Court observed that “it is difficult to see a specific interest that could be of more importance to aboriginal peoples than each person’s essential connection to their aboriginal heritage.”42
A patchwork of three hundred provincial and territorial child welfare agencies, operating in thirteen different jurisdictions, deliver Aboriginal child welfare services in Canada. The provinces and territories have jurisdiction over child welfare within their borders, including almost all services provided off reserve. The federal government is responsible for funding child welfare services on reserves.
Through its First Nations Child and Family Services Program, Canada has committed to funding child welfare services on reserves that are culturally appropriate, comply with provincial legislation and standards, and are reasonably comparable with services provided off reserves in similar circumstances.43 As this section will demonstrate, that commitment is not being honoured.
The Canadian First Nations child welfare system is a complex array of governance models: the delegated model, the integrated model, band bylaws, and bilateral and tripartite agreements.
Delegated delivery is the most common governance model. Provincial governments delegate responsibility for the delivery of child welfare services to Aboriginal child and family services agencies.44 These agencies are required to conform to provincial/territorial laws as a condition for funding.
Ontario’s child welfare system is governed by a unique delegation arrangement because of an Indian Welfare Agreement that was signed between the Province of Ontario and Aboriginal Affairs and Northern Development Canada (then named Department of Indian Affairs) in 1965. The agreement was negotiated without input from First Nations and provides for the federal government to reimburse Ontario for 93% of the cost of providing child welfare services on reserves in Ontario.
A smaller number of agencies operate under the integrated model in which the Aboriginal community and the provincial government share governance responsibilities. Manitoba provides the best example of the integrated model in action. Four regional authorities operate the province’s child welfare agencies: the General Authority, Métis Authority, First Nations of Northern Manitoba Authority, and First Nations of Southern Manitoba Authority. This system, first implemented in 2000, developed as a result of recommendations made by the Manitoba Aboriginal Justice Inquiry in 1991. The Province of Manitoba, the Manitoba Metis Federation, the Assembly of Manitoba Chiefs, and Manitoba Keewatinook Ininew Okimowin jointly developed the model.45
Each regional authority has the right to direct its child and family services agencies, and the Manitoba government is responsible for determining policies and standards, monitoring compliance, and funding.46 Each authority is mandated to provide services anywhere in the province.47 As a result, Manitoba is the only province where Aboriginal child welfare agencies provide mandated services both on and off reserve, and First Nations, Inuit, and Métis children and families have access to culturally appropriate services no matter where they live in Manitoba.48 There are sixteen First Nations child welfare agencies in Manitoba, including the Child and Family All Nations Coordinated Response Network. The network is located in Winnipeg, which has one of the largest urban Aboriginal populations in Canada. It is the only Aboriginal agency in Canada to serve both Aboriginal and non-Aboriginal families in a major metropolitan area.49
The General Authority provides services to about 18% of Manitoba’s child welfare clients, but about 82% of children in care receive services from a First Nation or Métis authority. This reflects the dramatic overrepresentation of Aboriginal children in care.50
Two First Nations have developed self-government systems that afford greater control over child welfare services. The Spallumcheen First Nation in British Columbia signed an agreement with Canada in 1981 acknowledging the nation’s jurisdictional control over child welfare services. This First Nation operates under band bylaws rather than provincial laws and standards.51 The Nisga’a Lisims First Nation signed a treaty in 1999 that confirms the nation’s right to “make laws with respect to children and family services on Nisga’a lands.” Those laws must be consistent with provincial standards. It operates under a tripartite agreement.52
Although Aboriginal child welfare systems governed by delegated and integrated models apply the same child welfare legislation as their non-Aboriginal counterparts, there have been significant reforms to child welfare laws across the country since the 1960s.
Today, most child welfare laws include special considerations for Aboriginal children, families, and communities. Measures include the requirement to notify Aboriginal bands of court hearings involving Aboriginal children; Aboriginal engagement in service design and delivery; consultation with Aboriginal representatives in cases involving Aboriginal children; and priority status for kinship care.53
Ontario legislation requires that culturally appropriate services be made available for Aboriginal children. The government may exempt First Nations child welfare authorities from any provision in the Child and Family Services Act. Five First Nations agencies in Ontario have agreements with the provincial government that exempt them from applying specific aspects of the child welfare legislation.54
Some provinces have implemented Aboriginal-specific practice standards. In British Columbia, the Aboriginal Operational and Practice Standards manual prioritizes child placement within Aboriginal communities and involvement of families and communities in intervention plans. It also promotes access to cultural ceremonies and information on Aboriginal heritage.55 In New Brunswick, the MicMac and Maliseet First Nations Services Standards Manual introduced culturally based standards in 1993.56 The Federation of Saskatchewan Indian Nations has gone further. Its Indian Child Welfare and Family Support Act exists alongside provincial legislation and includes standards recognized by the province as equivalent to ministerial policies, practices, and standards.57
Jurisdictional responsibility for child welfare is intensely contested, with both the federal government and provincial and territorial governments essentially trying to shift the responsibility for Aboriginal child services to the other level of government. The federal government maintains that child and family services are solely within the jurisdiction of the provinces and territories. To the extent that it provides funding for such services on reserves, it does so merely at its own discretion. Canada maintains that any obligation it may have ends at the borders of reserves. The provinces maintain that the federal government has constitutional responsibility for “Indians” and argue that the federal government has offloaded responsibility to the provinces to provide services to an increasingly urban, non-reserve population.58 The result is that there are often disputes over which level of government or department is responsible for paying costs.
A 2005 survey of twelve First Nations child welfare agencies found that collectively, the agencies had experienced 393 jurisdictional disputes within the previous year. Each dispute required an average of 54.25 person hours to resolve, with some disputes taking up to 200 hours of staff time to sort out. The most frequent disputes were between the federal government’s own departments (36%), between two provincial departments (27%), and between federal and provincial governments (14%).59
Beginning in 1988, most First Nations child and family service agencies received funding through a federal policy called “Directive 20-1.” First Nations had little input in creating it. Until 2007–08, Directive 20-1 applied in all jurisdictions except Ontario.60
Directive 20-1 has two funding streams. “Operations” funds are intended to cover the cost of running a child welfare agency, including costs such as salaries and rent. Operations funding is based on the size of the child population the agency serves. “Maintenance” funds are intended to cover the full cost of maintaining children in care outside of their family homes.61
Directive 20-1 does not cover other types of services. Notably, it does not cover preventive services to support families. Not surprisingly, Directive 20-1 has come under fire. An evaluation by the Department of Indian and Northern Affairs Canada concluded that “the program’s funding formula, Directive 20-1, has likely been a factor in increases in the number of children in care and program expenditures because it has had the effect of steering agencies towards in-care options—foster care, group homes and institutional care because only these agency costs are fully reimbursed.”62
Failure to provide supports to families that would assist them to maintain custody of their children could very well be a violation of international law. The Convention on the Rights of the Child requires states to provide assistance to ensure that the integrity of Indigenous families and communities is protected.63 Directive 20-1 does not do so. Canadian officials are well aware of this. In 2011, Michael Wernick, then the deputy minister for the Department of Indian and Northern Affairs, pointed out the flaws to the Standing Committee on Public Accounts:
What I think we identified, with the help of the work from the Auditor General, was that we had the incentives all wrong.… We didn’t really have a funding formula that provided a lot of resources for prevention. In many cases, early intervention and prevention with the families in the communities means that the kids can be protected from harm and risk without having to be taken out of the home and put into care. So children in care is sort of a flawed measure as well for what we’re trying to get at.64
Canada responded to criticism of Directive 20-1 with a new funding formula called the “Enhanced Prevention Focused Approach.” Operations and maintenance funding streams still exist, but there is now a third stream for prevention services with the goal of reducing out-of-home placements. In a further improvement over Directive 20-1, the Enhanced Prevention Focused Approach does not require block funding. Agencies have the flexibility to shift funds between streams to meet the needs of the community.65
The new funding formula is being rolled out based on tripartite agreements between Canada, the provinces, and First Nations child and family services agencies. Tripartite framework agreements based on the Enhanced Prevention Focused Approach have been negotiated in Alberta, Manitoba, Nova Scotia, Prince Edward Island, Québec, and Saskatchewan.66 They have led to significantly increased funding.67 Canada plans to negotiate agreements in all jurisdictions. In the meantime, Directive 20-1 continues to be applied in the remaining provinces despite its serious acknowledged flaws.
Funding for prevention services is certainly a welcome development, but the new formula is already raising concerns.
Maintenance funding is based on the actual costs of maintaining children in care from the year prior. Agencies dealing with an increase in the number of children in care then face deficits that must be covered by shifting resources from prevention and operations. The resulting lack of predictability makes it difficult for agencies to develop and sustain prevention programs.
As with Directive 20-1, operations funding continues to be based on the assumption that 6% of on-reserve children are in care (with the exception of Manitoba, which assumes 7%).68 Agencies with a higher number of children in care will have fewer resources for operations and may have to cut prevention services to cover the shortfall. The auditor general expressed concern about this aspect of the new funding formula:
The new formula does not address the inequities of the existing formula. It still assumes that a fixed percentage of First Nations children and families need child welfare services. Agencies with more than 6% of their children in care will continue to be hard-pressed to provide protection services while developing family enhancement services. In our view, the funding formula should be more than a means of distributing the program’s budget; it should take into account the varying needs of First Nations children and communities.69
The Standing Committee on Public Accounts agreed, noting that “the result of this approach is that communities that need funding the most, that is, where more than 6% of the children are in care, will continue to be underfunded and will not be able to provide their children the services they need.”70
Since 1996, the Department of Indian Affairs and Northern Development (which became the Department of Aboriginal Affairs and Northern Development in 2011) has capped annual department funding increases at 2%. But funding for the First Nations Child and Family Services Program budget has increased significantly, more than doubling from $193 million in 1997 to $450 million in 2007. These increases were funded by transferring money from other program areas, such as community infrastructure and housing.71
Starving community infrastructure and housing of funds is self-defeating and unsustainable. Neglected community infrastructure and poor housing conditions contribute to the growing number of child welfare cases that are causing the financial pressures on the system in the first place.
Shifting the money around would not be as serious a problem if the new funding approach could achieve the goals of preventing family violence, protecting children, and reducing the overrepresentation of Aboriginal children in care. It is still early days for the Enhanced Prevention Focused Approach, but the results of several formal evaluations conducted for the Department of Aboriginal Affairs have been, at best, mixed.
A 2010 evaluation by Indian Affairs and Northern Development Canada found that “the research is inconclusive regarding the extent to which prevention programming has been effective to date.” The number of First Nations children in care increased after the new model was introduced. The average number of days in care also went up, though there were wide variations between agencies. A small number of agencies had increased prevention spending and also reduced the numbers of children in care, but the evaluation was unable to determine whether this was a direct result of prevention activities.72
Based on evaluations, in 2012 Aboriginal Affairs identified a series of issues undermining the effectiveness of the Enhanced Prevention Focused Approach: complex medical needs, the high cost of institutional care, an increase in older children coming into care, housing shortages and overcrowding, shortages of Aboriginal foster parents, lack of program supports for parents with addiction or mental health problems, and poverty.73 Aboriginal Affairs noted that “agencies report that some families are unable to meet their basic needs (food, fuel for heating, transportation to medical appointments, etc.) and find themselves unable to care for their children.”74
Because the most significant driver of high child welfare rates in Aboriginal communities is “neglect” that is actually tied to poverty, there are limits to how successful the new formula can be. The Enhanced Prevention Focused Approach does not put more money into the hands of Aboriginal families, provide them with safe housing, or put food on their tables.
Formulas for funding aside, the auditors general of Canada and British Columbia have concluded that Aboriginal child welfare agencies do not receive adequate funding to ensure equitable access to a level and quality of services comparable with those provided to other children.75 The Government of Canada, in meaningful consultation with Aboriginal communities, should undertake immediate measures to ensure that Aboriginal child and family service agencies are provided with adequate and sustainable resources to ensure culturally based services regardless of their place of residence. Funding arrangements should ensure that Aboriginal agencies and communities have adequate resources to strengthen families so as to minimize the need for drastic interventions that take Aboriginal children away from their families.
There are several examples of the highly charged legal atmosphere surrounding services to Aboriginal children and families. In 2007, the Assembly of First Nations and the First Nations Child & Family Caring Society of Canada76 filed a complaint with the Canadian Human Rights Commission under the Canadian Human Rights Act, alleging that Canada’s failure to ensure equitable and culturally based child and family services for First Nations amounted to discrimination on the basis of race and national ethnic origin.77
Canada disputed the Canadian Human Rights Tribunal’s jurisdiction to review the complaint and spent more than $3 million on legal proceedings aimed at getting the case dismissed.78 Canada argued that a discrimination analysis should not be based on comparing federal levels of funding to those of the provinces and territories. If accepted, that argument would render the concept of discrimination meaningless with respect to Aboriginal peoples. The federal government could, with impunity, deny Aboriginal peoples the quality of services enjoyed by all other groups in Canada simply by saying that there is no basis for comparison.
In 2011, the tribunal accepted Canada’s arguments and dismissed the human rights complaint, ruling that the Canadian human rights regime “does not allow a comparison to be made between two different service providers with two different service recipients. Federal funding goes to on-reserve First Nations children for child welfare. Provincial funding goes to all children who live off reserve. These constitute separate and distinct service providers with separate service recipients. The two cannot be compared.”79
On judicial review, the Federal Court and the Federal Court of Appeal soundly rejected this restrictive approach as unreasonable.80 The Federal Court of Appeal ordered the Canadian Human Rights Tribunal to hear the case.81 In concluding that the tribunal’s decision to dismiss the case was unreasonable, the court emphasized that “discrimination is a broad, fact-based inquiry” that requires “going behind the façade of similarities and differences” and “taking full account of social, political, economic and historical factors concerning the group.”82
The Canadian Human Rights Tribunal has been hearing evidence sporadically since February 2013, although a lengthy adjournment was required when Canada disclosed an additional 50,000 pages of documents. The hearing was completed in October 2014. At the time of writing, it is anticipated that the tribunal will publish its decision in 2015.
The litigation in this case has been particularly prolonged. The federal government’s aggressive approach aligns awkwardly with its recognition and apology regarding the ongoing legacy of residential schools in child welfare cases.
The repercussions of these disputes over jurisdiction can be serious. Aboriginal children pay the highest price, especially children with complex developmental, mental health, and physical health issues.83
Jordan River Anderson was a member of the Norway House First Nation in Manitoba. He was born with complex medical needs. Jordan remained in hospital two years longer than medically necessary while the provincial and federal governments fought over who would pay for his at-home care. Before the two governments could come to an agreement, Jordan died, at age five, never having spent a day in a family home.84
In theory, situations such as Jordan’s should not arise again. On December 12, 2007, the House of Commons unanimously supported a private member’s motion (M-296) stating that “the government should immediately adopt a child-first principle, based on Jordan’s Principle, to resolve jurisdictional disputes involving the care of First Nations children.”85 According to Jordan’s Principle, the government department that is first contacted for a service readily available off reserve must pay for it while it is pursuing reimbursement for the expenses.86
Jordan’s Principle was not passed as legislation. It is merely a statement by Parliament.87 The Canadian Paediatric Society noted in 2011 that not one province or territory had implemented a child-first approach to resolving jurisdictional disputes over services provided to First Nations children and youth.88 Jurisdictional disputes continue to delay Aboriginal children and families’ access to services.
3) We call upon all levels of government to fully implement Jordan’s Principle.
An Aboriginal family from Pictou Landing, Nova Scotia, went to court in 2013 seeking to enforce Jordan’s Principle so that a disabled child would receive the supports he required to remain in the family home and avoid institutionalization.89 Both levels of government took the position that the child was not entitled to the supports his family had requested. Since both governments denied entitlement, they both took the position that in fact there was no jurisdictional dispute and Jordan’s Principle did not apply. The Federal Court concluded that both levels of government were wrong and that the child was entitled to the services. The court ordered Canada to pay the necessary costs.
The costs for one child had consumed 80% of the six-hundred-member band’s budget for personal and home care services. The judge stressed that “Parliament has unanimously endorsed Jordan’s Principle and the government, while not bound by the House of Commons resolution, has undertaken to implement this important principle.”90 The judge also noted that the only other option for Jeremy would be institutionalization and separation from his mother and his community. His mother is the only person who, at least at times, can understand and communicate with him.
In the early 1980s, Indian Affairs and Northern Development Canada (as it was then called) began approving the establishment of First Nations child and family service agencies on reserves on a case-by-case basis. The first were established in Alberta, Manitoba, and Nova Scotia. Canada now provides funding to 106 Aboriginally controlled agencies. In 2010–11, 9,242 Aboriginal children were outside of the parental home and in the care of First Nation child and family service agencies, which represents 5.6% of on-reserve children.91
A few larger Canadian cities (such as Toronto and Vancouver) also have First Nation child and family service agencies.92 There are none in the territories, where the same agencies that serve all children provide services to Aboriginal children. In Yukon, Canada provides funding for these services to the territorial government. The funding arrangement is slightly different in the Northwest Territories and Nunavut, where there are territorial transfer agreements with the federal government.
Canada rejected First Nation demands to operate services in accordance with traditional laws and traditional justice systems. By contrast, in the United States, tribal courts have played an important role in the child welfare system since 1978.93
The discouraging news is that, despite the expansion of First Nations child and family services agencies, the overrepresentation of Aboriginal children in care continues. Sometimes, the emphasis has seemed to be on simply creating more First Nations agencies.
There is a lack of vision for a system that can truly serve Aboriginal peoples. The BC Representative for Children and Youth has had some harsh words on the subject for the parties involved in child welfare in that province: “There is no clear direction as to how the Aboriginal child welfare system will be improved; there is no observable logic between how the current Aboriginal governance and service structure initiatives will improve services and there is no monitoring of the impact of the various initiatives undertaken to date.”94
It is also troubling that the ability of First Nations child and family services agencies to develop culturally appropriate services has been constrained by inadequate funding. Of twelve First Nations agencies surveyed in 2005, 83.4% reported that they did not receive enough funds to ensure culturally appropriate services.95 This hinders their capacity to provide effective services and contributes to the continuing overrepresentation of Aboriginal children in care.
Data on Aboriginal children in child welfare care is not collected in a uniform and accessible manner across the country. Each province and territory has its own child welfare system, with different definitions of terms such as child in care and different methods for collecting information. Some data collection systems allow for comparison between Aboriginal and non-Aboriginal children but others do not. In terms of the reasons for investigations, the grounds for interventions, and the characteristics of children and families who are investigated, the picture across the country is far from complete.
Children may be placed in foster care, in group homes or residential facilities, or with relatives (often called kinship arrangements). However, whether a child welfare agency defines the child as being in care depends on factors such as the type of placement, whether it is formal or informal, and whether it is permanent or temporary. Direct comparisons are difficult, making national statistics ambiguous. Thus, it is a challenge to compile reliable statistics about the number of Aboriginal children in care at any given time.
The Public Health Agency of Canada, a federal agency designed to promote health and apply research to health problems, has partnered with some of Canada’s leading child welfare researchers to develop the Canadian Incidence Study of Reported Child Abuse and Neglect. The study is developing information about the incidence of child welfare investigations in Canada, the numbers of children in care, the reasons for child welfare agency involvement with families, and the types of family stressors that can lead to child maltreatment.96 So far, the study has analyzed data collected from selected child welfare agencies across the country in 1998, 2003, and 2008.97
In 2011, for the first time, the study published a First Nations Component, based on data collected in 2008.98 The First Nations Component is a result of a partnership between the study’s research team and the First Nations Component advisory committee, which includes representatives from national and provincial First Nations child welfare organizations.99 It includes data from 89 provincial/territorial agencies, 22 First Nations and urban Aboriginal agencies, and 1 Métis agency (on a pilot basis).100
The authors of the 2011 First Nations Component of the Canadian Incidence Study of Reported Child Abuse and Neglect note that First Nations child welfare agencies vary enormously. Added to resource limitations, this made it impossible for the researchers to identify a sample of First Nations agencies that could reliably represent all such agencies. Thus, the study findings cannot be generalized and can only be said to apply to children living in the geographic areas served by the sampled agencies.101
Nevertheless, the findings point to vast overrepresentation of Aboriginal children in care. The study found that investigations involving Aboriginal children resulted in formal child welfare placements, including foster care, group home, and residential secure treatment (but excluding informal kinship care) at 12.4 times the rate for investigations involving non-Aboriginal children.102 Placements into informal kinship care occurred at 11.4 times the rate for non-Aboriginal children. Overrepresentation in the latter category may not be entirely negative if it indicates that child welfare agencies were increasingly respecting the informal kinships structures in Aboriginal communities. Nevertheless, the number of Aboriginal children in formal care placement was found to be grossly disproportionate.
Statistics Canada’s 2013 National Household Survey provides some further insight. The survey found that 14,225 Aboriginal children under the age of 14 were in foster care, representing 3.6% of all Aboriginal children under the age of 14. To put that in perspective, at the height of the residential school era, 10,112 students were in those schools.103 Only 15,345 non-Aboriginal children were in foster care, representing 0.3% of non-Aboriginal children.104 Figures from the 2011 Canada Household Survey show that, although Aboriginal people make up only 4.8% of Canada’s population, Aboriginal children represent almost half (48.1%) of all children aged 14 and younger in foster care in Canada.105
The percentages vary considerably across the country, but Aboriginal children in care are grossly overrepresented in all the jurisdictions for which data is available. Table 1.1 shows stark differences in Ontario, Manitoba, Saskatchewan, Alberta, and British Columbia:106
Table 1.1 Aboriginal children in care vs. their proportion of provincial child populations
| Province | Aboriginal children as a % of the total child population | Aboriginal children as a % of children in care |
| Nova Scotia | 6 | 16 |
| Québec | 2 | 10 |
| Ontario | 3 | 21 |
| Manitoba | 23 | 85 |
| Saskatchewan | 25 | 80 |
| Alberta | 9 | 59 |
| British Columbia | 8 | 52 |
Source: Extracted from Sinha et al., Kiskisik Awasisak: Remember the Children: Understanding the Overrepresentation of First Nations Children in the Child Welfare System, 5.
NB: Data for New Brunswick and Canadian territories were not publicly available. Data collection protocols vary from province to province
Among these provinces, Ontario’s rate of overrepresentation is the most disproportionate, with seven times as many Aboriginal children in care as their proportion of the population. Statistics are not available for the territories, but the ratios could be even higher than those for the western provinces given that the North has more recent experience with residential schools.
International law recognizes that children require special care in order to ensure that they enjoy fundamental human rights and dignity. The preamble of the United Nations Convention on the Rights of the Child states that to ensure that a child has the opportunity for “the full and harmonious development of his or her personality, [he or she] should grow up in a family environment, in an atmosphere of happiness, love and understanding.” In safe and secure homes, children can be “brought up in the spirit of the ideas proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.”
Concern for the “best interests of the child” is a central feature of the Convention on the Rights of Child and, in particular, must guide decisions about child welfare. In Commentary 11, the United Nations Committee on the Rights of the Child considered the application of international children’s rights to Indigenous peoples, and stated clearly that it is in the best interests of children to be raised in a setting that respects their ethnic, religious, cultural, and linguistic background.107 Indigenous children have the right to the preservation of their identity, including their nationality, name, and family relations. Where a child is illegally deprived of some or all of the elements of their identity, states must provide assistance to re-establish that identity.108 Parents, extended families, and communities have rights, responsibilities, and duties when it comes to raising children, and the Convention requires states to provide assistance to ensure that the integrity of Indigenous families and communities are protected. The best interests of the child are the paramount consideration in any alternative care placement of Indigenous children.109
These international law principles are also firmly entrenched in the Declaration on the Rights of Indigenous Peoples. The declaration prohibits the forcible removal of Indigenous children to other groups.110 Indigenous peoples also have the right to identity and to the preservation of their language and culture.111 These rights are threatened by child welfare decisions that remove children from their families and communities without due consideration being given to those issues.
The overrepresentation of Aboriginal children in Canada’s child welfare system has not gone unnoticed in the international community. In 2006, the United Nations Committee on Economic, Social and Cultural Rights noted “with concern that low-income families, single-mother-led families and Aboriginal and African Canadian families are overrepresented in families whose children are relinquished to foster care. The committee is also concerned that women continue to be forced to relinquish their children into foster care because of inadequate housing.”112 The committee recommended that, “in accordance with the provisions of article 10 of the covenant on the protection of families, the federal, provincial and territorial governments undertake all necessary measures including through financial support, where necessary, to avoid such relinquishment.”113
In 2012, the UN Committee on the Rights of the Child cited the frequent removal of children from families as a “first resort” in Canada in cases of neglect, financial hardship, or disability, and decried the frequency with which Aboriginal children were placed outside their communities.114 Noting that Canada had also failed to act on the federal auditor general’s findings of inequitable child welfare funding, the committee concluded that “urgent measures” were needed to address the discriminatory over-representation of Aboriginal children in out-of-home care.115
The UN committee also urged Canada to “intensify its efforts to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities with timely responses at the local level, including services to parents who need counselling in child-rearing, and, in the case of Aboriginal … populations, culturally appropriate services to enable them to fulfil their parental role.”116 The committee called on Canada to “take immediate steps to ensure that in law and practice, Aboriginal children have full access to all government services and receive resources without discrimination.”117 There appears to have been little sense of urgency within the Government of Canada to respond to these repeated calls to take action.
The research literature and Survivors’ statements to the Commission suggest that the legacy of residential schools is a significant factor in the overrepresentation of Aboriginal children in the child welfare system. According to a Saskatchewan study, there is strong evidence that “the residential school period [was] the beginning of an intergenerational cycle of neglect and abuse. This cycle is seen as one very important contributor to the significant over-representation of First Nations and Métis children and families in child welfare systems in the country today.”118
In Kiskisik Awasisak: Remember the Children, the authors discuss the link between overrepresentation and the residential schools and mass removals:
Though [the 2008 data] cannot establish how many caregivers of investigated First Nations children may have experienced direct or intergenerational effects of the Sixties Scoop or residential schools, the data presented here cannot be properly interpreted without recognition of the ongoing implications of the historic pattern of mass removal of First Nations children from their homes and communities.119
In a 2002–03 survey by the First Nations Centre, 71.5% of residential school Survivors reported that they had witnessed the abuse of others and had experienced abuse themselves in the schools.120 In the same survey, 43% of intergenerational Survivors believed that they were affected by their parents’ experience at residential schools, and 73.4% reported that their parents were affected by their grandparents’ experience at residential schools.121
At the Commission’s request, the Indian Residential Schools Adjudication Secretariat analyzed information from claims submitted through the Independent Assessment Process (IAP) by Survivors of abuse at residential schools.122 In a random sample of 203 files, claimants had a range of lasting effects of abuse:
• Depression or low self-esteem: 94%
• Relationship problems: 90%
• Parenting problems: 42% (more women than men)123
• Substance abuse: 78% (more men than women)
• Sexual issues: 65% (more women than men)124
One-third (33%) of the claimants reported having an encounter with the criminal justice system (40% of males and 24% of females).125 This is significant because a parent who has been charged with a crime or has been the victim of a crime may be particularly vulnerable to child welfare investigations and apprehensions.
A majority of the IAP claimants in the sample had received some type of treatment, but 40% reported that they had none. Of those who sought one or more types of treatment, 32% received mental health therapy, 29% received alcohol treatment, 24% took part in traditional healing, and 12% received drug treatment.126
Residential school Survivors carry a heavy burden that profoundly influences their relationships and their ability to provide secure and safe homes for their families. The Royal Commission on Aboriginal Peoples concluded that the lack of opportunity to acquire parenting skills is one of the factors that contributed to the grossly disproportionate incidence of violence and child apprehension in Aboriginal families.127
Many former residential school students who spoke to the Commission acknowledged the mistakes they made as parents and feel guilt for passing their trauma on to their own children. Alma Scott of Winnipeg was raped by fellow students and sexually abused by a headmaster at a residential school. Her experience at residential school had lasting impacts. She explained,
[As] a direct result of those residential schools, I was a dysfunctional mother.… I spent twenty years of my life stuck in a bottle in an addiction where I didn’t want to feel any emotions, and so I numbed out with drugs and with alcohol…. That’s how I raised my children, that’s what my children saw, and that’s what I saw.128
The intergenerational impact of the residential school experience has left some families without strong role models for parenting. An investment in culturally appropriate programs in Aboriginal communities has the potential to improve parenting skills and enable more children to grow up safely in their own families and communities.
5) We call upon the federal, provincial, territorial, and Aboriginal governments to develop culturally appropriate parenting programs for Aboriginal families.
In an analysis of the data gathered for the First Nations Component of the Canadian Incidence Study of Reported Child Abuse and Neglect, the authors of Kiskisik Awasisak confirmed that Aboriginal children in the geographic areas studied were significantly overrepresented as subjects of child maltreatment investigations. In the geographic areas served by the agencies sampled for this study, the rate of investigations of First Nations children was 4.2 times the rate of non-Aboriginal investigations.129 The study also found that allegations were more likely to be “substantiated” in cases involving Aboriginal children. This was so in all categories of maltreatment, but the difference was most extreme for “neglect” investigations.130 The investigations substantiated the allegations of neglect at eight times the rate for the non-Aboriginal population.131
In a further analysis of the First Nation Component data, Aboriginal families were found to have been investigated for neglect at six times the rate for non-Aboriginal families. The authors concluded that child welfare caseworkers were more likely to “substantiate” concerns about neglect when investigating Aboriginal families, even when compared to non-Aboriginal families experiencing the same kinds of risk factors (such as poverty, housing instability, domestic violence, etc.).132 For example, they noted that a finding of substance abuse almost always resulted in a finding of neglect in the case of Aboriginal parents, but this was not so when the parents were non-Aboriginal. Concerns about housing were also more likely to substantiate findings of neglect involving non-Aboriginal children. This may reflect implicit assumptions that poor housing is more “normal” for Aboriginal families.
In a report for the Child and Youth Services Review, the authors concluded that “ethno-racial bias on the part of investigating workers” could not be excluded as a cause of the increased tendency to find neglect in investigations of Aboriginal children.133 The authors stressed that findings of neglect account for much of the over-representation of Aboriginal children in the child welfare system.134 This suggests that today, as in the residential school era, Aboriginal children are often taken away from their parents because of assumptions that they will be neglected.
Very little is known about how child protection workers identify cases of neglect.135 In an analysis of supervisory neglect cases from the 2008 Canadian Incidence Study of Reported Child Abuse and Neglect, the researchers found that only 2% of cases resulted in injuries. They observed that “in the absence of visible signs of harm and established standards for adequate supervision of children, a question emerges on … the extent to which those take into account a variety of specific circumstances or cultural and social class differences and norms affecting ‘acceptable’ patterns of child care.”136 Moreover, “differences in family practices, in particular cultural difference, rather than clear evidence of harm or potential harm, may be driving some child welfare investigations.”137 The authors point out that providing family supports and prevention services may be a better response to supervisory concerns.138 As noted earlier, however, similar recommendations have largely gone unheeded to date.
Social workers and others who conduct child welfare investigations need education and training about the history and impacts of residential schools. They should also be trained to assess the potential within Aboriginal communities and families to provide more appropriate solutions to family healing.
An analysis of the First Nations Component of the Canadian Incidence Study of Reported Child Abuse and Neglect confirms that poverty and social stressors are major factors in child welfare investigations involving Aboriginal families. Aboriginal parents were more likely to experience a host of serious risk factors, including domestic violence, alcohol abuse, lack of social supports, drug or solvent abuse, and a history of living in foster care or group homes.139
In cases of maltreatment investigations, poverty was much more prevalent in Aboriginal families. They were more likely to rely on income supports such as social assistance (49%) than non-Aboriginal parents (26%).140 The researchers suggest that the high rate of Aboriginal child welfare investigations reflect “challenges linked with poverty.”141 It follows that reducing social assistance to Aboriginal parents may increase child welfare apprehensions. The direct connection between Aboriginal poverty and high child welfare apprehensions has been known for half a century. Yet Aboriginal children are still being taken away from their parents because their parents are poor.
First Nations represent ninety-six of the one hundred most disadvantaged communities in Canada.142 Reserve communities have very limited emergency housing, food security, wellness and addictions services, supports for families, and recreation services. More research is needed, but the evidence suggests that the disproportionate number of Aboriginal children taken from their parents for “neglect” is tied to poor funding for their schools and health care services as well as other factors related to the legacy of residential schools.
True neglect is undoubtedly a threat to a child’s health and well-being. However, the Commission is deeply concerned that the concept of neglect may be used to target Aboriginal families for child apprehensions. To eliminate any systemic discrimination and unconscious bias as a legacy of residential schools, it is clear that neglect investigations and outcomes should be assessed and monitored based on clear evaluation criteria.
For over a hundred years, Canadian law has, in various ways, continued to authorize government officials to take Aboriginal children away from their parents. The federal government funds child welfare services on reserves, but provincial laws are generally applied. Provincial and territorial child welfare laws continue to allow officials to apprehend Aboriginal children who are deemed to need protection. Parental rights can be curtailed or even ended if a judge determines that it is in the best interests of the children.143
Withdrawal from the child welfare field is not possible. That would leave many Aboriginal children vulnerable. However, without action to reduce the number of Aboriginal children taken from their families, the child welfare system itself will take the place of residential schools in doing damage to them. As adults, the children taken into care in the years to come will place high demands on social assistance and the health and justice systems. They will struggle economically and socially. They may pass damage on to their own children.
1) We call upon the federal, provincial, territorial, and Aboriginal governments to commit to reducing the number of Aboriginal children in care by:
i. Monitoring and assessing neglect investigations.
ii. Providing adequate resources to enable Aboriginal communities and child welfare organizations to keep Aboriginal families together where it is safe to do so, and to keep children in culturally appropriate environments, regardless of where they reside.
iii. Ensuring that social workers and others who conduct child welfare investigations are properly educated and trained about the history and impacts of residential schools.
iv. Ensuring that social workers and others who conduct child welfare investigations are properly educated and trained about the potential for Aboriginal communities and families to provide more appropriate solutions to family healing.
v. Requiring that all child welfare decision makers consider the impact of the residential school experience on children and their caregivers.
2) We call upon the federal government, in collaboration with the provinces and territories, to prepare and publish annual reports on the number of Aboriginal children (First Nations, Inuit, and Métis) who are in care, compared with non-Aboriginal children, as well as the reasons for apprehension, the total spending on preventive and care services by child welfare agencies, and the effectiveness of various interventions.
It is very difficult to get a clear picture of Aboriginal child welfare across the country, but information about deaths of Aboriginal children in care is even more fragmentary. Where province-specific statistics are available, they are very troubling. In some parts of the country, Aboriginal children who come into contact with child welfare authorities are more likely to die than their non-Aboriginal counterparts.
In January 2014, the Edmonton Journal published a series of articles about deaths in Alberta’s child welfare system. Alberta had never publicly reported on deaths of children in care. The newspaper’s investigation revealed that Aboriginal children accounted for 78% of children who died in foster care between 1999 and 2013.144 Aboriginal children are a small minority but represent 59% of children in care in Alberta. Yet the number of Aboriginal child deaths in care is even more disproportionate than the number of them in care in the first place. Of the seventy-four Aboriginal child deaths recorded in foster care, thirteen were due to accidents, twelve committed suicide, and ten were the victims of homicide.145
Forty-five of these Aboriginal children died while in the care of a provincial child welfare agency and twenty-nine died in the care of an on-reserve First Nations child and family service agency. Since First Nations agencies care for only a fraction of the children (27% in 2012–13) Aboriginal children are much more likely to die if they are in care on reserve. According to reporter Darcy Henton, this statistic “starkly highlights the federal/provincial funding disparity that gives off-reserve aboriginal children more services and more support.”146
In the outcry following the Edmonton Journal’s revelations, the Alberta Centre for Child, Family and Community Research obtained more information about child welfare deaths from the provincial government. Their analysis showed that “Aboriginal children were much more likely than non-Aboriginal children to enter the intervention system, and had higher rates of mortality than non-Aboriginal children once they were in the system.”147
By contrast, in British Columbia, a review covering the period between 1997 and 2005 found that Aboriginal children and youth represented 34% of children in care and 36% of the deaths.148 While this roughly equal figure is not cause to celebrate, it illustrates that it is difficult to generalize about the scope of the problem across the country.
In Ontario, under a joint directive from the Coroner’s Office and the Ministry of Children and Youth Services, children’s aid societies report child deaths when the child or family was involved with child welfare in the year prior to the death. There are approximately one hundred such deaths in Ontario each year, representing about 8% of all child deaths in Ontario.149 The Coroner’s Office’s Paediatric Death Review Committee chooses a subset of these cases for more extensive review, generally excluding cases in which the death was due to expected or uncomplicated natural causes. In 2012, 29% of the reviewed cases involved Aboriginal children.150 (Twenty-one per cent of children in care in Ontario are Aboriginal.)151 The committee found that in many of the Aboriginal cases, there were issues related to the child welfare agency’s capacity to meet ministry requirements. A strained relationship between child welfare agencies and local First Nations communities was also identified as a problem.152
Death is only the most extreme example of harm coming to a child. This sample of experiences from different provinces strongly suggests that Aboriginal children in care specifically, disproportionately, and on a widespread basis throughout the country, continue to be deprived of services they require and protections they deserve.
Phoenix Sinclair was a healthy baby girl born to Aboriginal teenage parents in Manitoba. Both parents had troubled pasts, and because of their own history as foster children, they intensely mistrusted the child welfare system. Phoenix was taken into care twice during her five years of life. She was twice returned to her family, with little support, on either occasion. The caseworkers assigned to her changed frequently. They had little face-to-face contact with the family or with Phoenix herself.
At least thirteen times, Winnipeg Child and Family Services received notices of concern about Phoenix’s safety and well-being. In 2005, three months after the last notice, her mother and her mother’s partner killed her. Her death went undiscovered for nine months.153
A commission of inquiry examined Phoenix’s life, the services she received through Winnipeg Child and Family Services, and Manitoba’s child welfare system generally. Former Saskatchewan judge Ted Hughes led the inquiry. He found that child welfare workers lacked awareness of the reasons families came into contact with the child welfare system and the steps caseworkers should take to support them. In Phoenix’s case, caseworkers repeatedly closed her file, with minimal investigation, because they concluded that Phoenix was not in danger in the short-term. They failed to consider her long-term risk.154
Reporting on the inquiry in 2014, Justice Hughes noted that new practices had been put in place in recent years to identify families that needed help earlier, to assess a family’s needs and strengths, and to provide services to enable them to keep their children safely at home. However, Justice Hughes also found that many of the services and supports families needed were still missing.155 He endorsed a “prevention” approach that provides essential services to all children, accessible without the need to come into contact with a child welfare agency first.156 This approach would draw on many resources within Aboriginal communities and support parents and families in a culturally appropriate way. Social workers would need better training in this scenario, including education on the legacy of residential schools.
Justice Hughes pointed out that the child welfare system alone cannot solve the child welfare problem. Nor can it address the fact that over 80% of children in care in Manitoba are Aboriginal, which he called a “national embarrassment.” He wrote that Aboriginal children are overrepresented in the child welfare system because they live in “far worse circumstances than other children,” for reasons that are “rooted in the legacy of colonization and residential schools, the conditions on reserves, cultural dislocation and loss of identity.”157 Observing that the child welfare system was doing a poor job of connecting families with the supports that are available to them, Justice Hughes acknowledged that the system could do little to alleviate poverty or the underlying causes of substance abuse, family violence, and sexual abuse.
Justice Hughes called for a collaborative approach: “Working with parents and harnessing the collective resources of child welfare and other provincial government departments, other levels of government, and the province’s many community-based organizations, can make a difference to vulnerable families.”158 Central to such a collaboration would be the inclusion of Aboriginal governments, communities and community organizations, and families.
Following Phoenix Sinclair’s death, the Manitoba Office of the Children’s Advocate conducted a “child death review” of the deaths of all children, from January 2004 to May 2006, who were in receipt of child welfare services within one year of their death. Of the 145 deaths in the period, 99 files were available for review. The review concluded that no child died as a direct result of a breakdown in the provision of child welfare services, but there was a “pattern of difficulties that may have led to the death of the child.” Many cases revealed a lack of appropriate community services, or if services did exist, they were difficult to access or coordinate.159 Of the child deaths included in the study, 76% were Aboriginal or Métis [sic] and 24% were non-Aboriginal. The authors point out that “these figures closely follow the breakdown of children involved in the child welfare system, but given the fact that Aboriginal people comprise 14% of the total population, it appears that Aboriginal, including Métis children, are overrepresented in both the child welfare system and the deaths of children in general.” Deaths by suicide appeared to be driving the higher mortality rates for Aboriginal children.160 Eleven of the twelve suicides included in the study were Aboriginal children. Half of these deaths occurred while the children were in foster care.161
Deaths at the hands of others occurred with terrible frequency. Eighteen of the ninety-nine deaths reviewed were homicides. Aboriginal children accounted for fourteen of those deaths. Seven of the eighteen homicides involved children who, like Phoenix, were under the age of five. All of them were killed by a parent or caregiver, whether Aboriginal or non-Aboriginal. The killers of the older children were generally people outside the child’s family. The review noted that “the majority of these children were living in homes with a very high level of risk to the children, but none had received a formal risk and/or safety assessment conducted when they first came into contact with a child welfare agency or when they were moved or returned to their family.”162 Authorities most often reported high-risk children as “absent without leave” when they went missing.163
Almost 60,000 Inuit people live in Canada.164 Inuit also live throughout the circumpolar Arctic region, including parts of the United States (Alaska), Russia, and Denmark (Greenland). Three-quarters of Canadian Inuit live in the traditional homeland known as Inuit Nunangat. Inuit Nunangat consists of four regions: Nunatsiavut in Newfoundland and Labrador, Nunavik in Northern Québec, Nunavut Territory, and Inuvialuit in the Northwest Territories. The Inuit have traditionally occupied these areas, but the regions are not fully autonomous self-governing entities. Of the approximately 16,000 Inuit people who live outside Inuit Nunangat, 37.5% live in large urban centres such as Ottawa and Montréal. The Inuit population is one of the youngest and fastest growing in Canada. About 40% of Inuit in Nunavik and Nunavut are under the age of 15.165
After the federal government forced Inuit people to move off the land and into permanent settlements in the 1950s, Inuit communities made significant attempts to regain self-determination and follow Inuit Qaujimajatuqangit (Inuit traditional knowledge). Traditional knowledge is grounded in principles for living a good life, including working for the common good, respecting all living things, maintaining harmony and balance, and planning and preparing for the future.166
Inuit communities are not organized by reserve or band systems like First Nations communities. Instead, they work within municipal and legislative models. The relatively new territory of Nunavut has the largest Inuit population and has incorporated Inuit traditional knowledge into all aspects of its formal governance, management, and operational structures. This has both successes and limitations.167 Each Inuit region of Inuit Nunangat has gained increased control of the administration of social services, including child and family services. All regions struggle to build capacity to deliver these services, including the particular challenge of developing child welfare services that are culturally appropriate and take into account traditional Inuit practices of childrearing.168
Traditional Inuit parenting is based on kinship relationships and cultural and spiritual beliefs. Inuit believe that a newborn named after a deceased relative takes possession of that relative’s soul or spirit, and this is reflected in the parents’ relationship with the child.169 According to the national Inuit women’s association, Pauktuutit, it “would not be considered appropriate ... to tell a child what to do, as this would be the equivalent of ordering an elder or another adult about, thus violating an important social rule in Inuit culture.”170
Ignorance of this aspect of Inuit culture caused many non-Aboriginal people, including residential school administrators and child welfare officials, to make culturally biased judgments. They often saw Inuit parents as extremely permissive and indifferent to discipline.171 At the residential schools, in contrast, teachers attempted to control a child’s behaviour through corporal punishment and other harsh disciplinary measures distasteful to Inuit parents.
In Inuit custom adoptions, the children have knowledge of and access to their birth parents. Traditionally, Inuit grandparents were integral in helping to raise their grandchildren, as well as orphaned or neglected children, through custom adoption. Inuit researcher Heather Ochalski points out that, traditionally, “many grandparents adopted their biological grandchildren. They often took orphaned children in as their own and called them panik (daughter) or irnik (son) … Sometimes they took them in briefly to help the biological parents that were nearly starving and returned them to their parents when they were back on their feet.”172
Residential schools and child welfare apprehensions eroded custom adoption practices, along with many other values and traditions of Inuit culture. Because they found Inuit names difficult to pronounce and spell, non-Aboriginal officials changed names to accord with Christian traditions. They imposed the European tradition of naming women and girls after the male head of the household, which devalued traditional kinship ties and imposed unfamiliar belief that females were inferior. From the 1940s to the early 1970s, the federal government assigned numbered disks as a naming system for Inuit, or “Eskimos” as the government and others called them. Despite the pressures, many Inuit continued to name their children after their ancestors and maintain traditional beliefs about naming practices.173
The residential school system was fully operational in the rest of Canada by the time the federal government extended it to the Eastern Arctic in 1955. Until then, the government had largely ignored the Inuit.
The Inuit began moving closer to trading posts and trapping non-traditional animals to benefit from the fur trade, but poverty and the loss of a way of life was too often the result.174 American officials witnessed these tragedies from their vantage point along the Distant Early Warning (DEW) Line sites spread across the Arctic Inuit homeland. The international criticism that followed prompted the Canadian government to establish residential schools for Inuit children on so-called humanitarian grounds.175
The Indian Act was amended in 1951 to state that “the race of aborigines commonly referred to as Eskimos” was not entitled to the legal rights and benefits defined for Indians. This legal status did not protect Inuit children from being forced to attend residential schools.176
Most Inuit parents did not want this compulsory school system and tried to prevent their children from attending or returning to the residential schools and day schools. Researcher David King reports that the Family Allowance program, introduced in 1944 for families with children aged sixteen and under, encouraged school attendance. The government did not have an official policy of denying Family Allowance payments to families who refused to send their children to residential school, but it was federal policy to withhold these payments if students were not attending either residential or day school.177
There was a significant increase in the number of Inuit students attending day and residential schools between 1956 and 1963. During that time, attendance rose from 201 to 1,173 in the Eastern Arctic. In the Western Arctic, attendance rose from 1,755 to 3,341.178
As at the residential schools in the South, students were separated from their cultural practices and teachings. Inuit Elders were not allowed to be part of the education system in their traditional role as cultural teachers. Inuit children attending residential schools were expected to behave like Qallunaat (white people) in their communication, dress, and eating habits. The traditional diet was considered unhealthy because meat and fish were eaten raw. Inuit children were stripped of their Inuit name, family, language, and culture, and subjected to verbal, psychological, physical, and sexual abuse.179
Without their cultural teachings, Inuit children who attended the residential schools lacked the knowledge and tools to raise their own children in traditional ways. The cumulative effect of these experiences continues to affect Inuit communities and families, and it is within this context that contemporary Canadian Inuit child welfare issues must be addressed.
The systemic abuse and breakdown of the culture and traditions that supported the health and well-being of Inuit families had far-reaching effects in Inuit Nunangat, profoundly changing family relationships. Anthropologist Nelson Graburn wrote that the vast majority of historical descriptions “bear little evidence of any kind of child abuse among the [Inuit] peoples.”180 But the residential schools deprived Inuit children of the opportunity to learn how to parent in traditional ways and left many students with the lifelong effects of trauma.
When residential school Survivors became parents, some modelled the harsh discipline and abusive punishments they had been subjected to as children. Today’s Inuit children, like First Nations and Métis children in other regions of the country, now bear the burden of the intergenerational trauma of the residential school era. Physical and emotional abuse suffered during childhood, loss of culture, overcrowded housing, and widespread drug and alcohol addiction all contribute to the prevalence of child abuse.181
Conditions for too many Inuit children include low educational outcomes, poverty, food insecurity, exposure to communicable diseases, poor health, family violence, intergenerational trauma, the loss of coping strategies, and epidemic suicide rates.182
In many Inuit communities, healthy food is very expensive. A single char sells for $99.53; a head of lettuce for more than $28; and four tomatoes for $8.20.183
Isolation, addictions, and a lack of resources and services can make it very difficult for Inuit parents to provide safe and healthy environments for their children, which increases the prospects of child welfare apprehension. The child welfare system in Inuit Nunangat is unable to deal with these challenges effectively.
Since the Inuit homeland is spread out over several territories and provinces, child welfare services depend largely on where an Inuit family lives. There are no Inuit-specific (or even Aboriginal-specific) child protection agencies in the North, although most of the child welfare laws include requirements to take the particular needs of Aboriginal children into account. Unlike the southern regions, child welfare services tend not to be specialized. Instead, child protection is often simply one of many responsibilities of local health and social service centres that must also deliver other types of supports and programs. For example, in addition to child and family services, social workers often also provide services to the elderly and people with disabilities.184
In the Northwest Territories (NWT), the Department of Health and Social Services is responsible for the delivery of child and family services, including providing for the protection and well-being of children and youth through setting standards and ensuring compliance with policy and legislation. These services are currently delivered through six regional health and social services authorities and the Tlicho Community Services Agency (established under the Tlicho Land Claims and Self-Government Agreement). There are approximately seventy-five frontline workers and supervisors assigned to child protection duties across the Northwest Territories.
In an effort to improve service delivery, effective April 1, 2016, a new Northwest Territories Health and Social Services Authority will be established, which will replace the six existing regional authorities and work with the Tlicho Community Services Agency. Regional advisory councils will provide leadership and guidance to local program delivery to ensure that services remain culturally responsive. In the future, Aboriginal governments in the NWT may choose to exercise jurisdiction over child and family services.185
Child welfare legislation requires that the child’s cultural, linguistic, and spiritual or religious upbringing be considered. In addition, the child’s Aboriginal community must be notified of any application for a child protection court order. There is also a provision for Aboriginal community councils and Aboriginal non-profits to form child and family services committees. These committees can participate in case planning for Aboriginal children and families. The Aboriginal Custom Adoption Recognition Act allows for the privately arranged adoption of children in a manner that respects cultural traditions.186
The rate of child welfare investigations is very high. The 2003 Canadian Incidence Study of Reported Child Abuse and Neglect found a rate of 141.48 child maltreatment investigations per 1,000 children.187 Although this was not further broken down by Aboriginal identity, it is safe to assume that Inuit children would be deeply affected given that more than half of the population of the Northwest Territories is Aboriginal.188 By comparison, the investigation rate for all of Canada was only 38.33 per 1,000.189 In general, the Northwest Territories mirrored other trends identified in the Canadian Incidence Study of Reported Child Abuse and Neglect, with the top three categories of substantiated child maltreatment being neglect, exposure to domestic violence, and physical abuse. However, the rate of neglect investigations in the Northwest Territories was very high: 51% as compared with the national rate of 30%.190
In Nunavut, where Inuit represent the large majority of the permanent population, there are no distinct Aboriginal or Inuit child welfare agencies. However, the territorial government has made a commitment to integrate Inuit social values into all programs and services. The Department of Health and Social Services is responsible for the delivery of all health and social services, including child welfare services. Community social workers provide a range of programs in addition to child protection, including early intervention and support to families, adoption services, and family violence prevention.191 As in the Northwest Territories, Aboriginal community councils and non-profits can form child and family services committees to participate in case planning for Aboriginal children and families. As with many territorial government laws and policies modelled on those in the Northwest Territories when Nunavut was created in 1999, Nunavut also has an Aboriginal Custom Adoption Recognition Act, which allows for private adoptions of Inuit children in a manner that respects cultural traditions.192
There are no treatment facilities for mental health problems or addictions in Nunavut.193 Individuals who need such services must travel to facilities in Saskatchewan, Alberta, or Ontario.
Lack of services within Nunavut has also posed a serious challenge for child protection. A recent social services review concluded that there is a perception that too many Inuit children have been placed outside the territory, leading to distrust of the system and a concern by Inuit that their cultures and values are not being respected.194
In Newfoundland and Labrador, there are no delegated Aboriginal child and family service agencies. Aboriginal families receive child welfare services from the regional health authorities. The Labrador-Grenfell Regional Health Authority serves Inuit families.195 The province’s child welfare legislation recognizes the importance of respecting and preserving the cultural heritage of children, as well as the responsibility of the community and the extended family to support the safety, health, and well-being of children. Social workers use these cultural concepts in case planning for Aboriginal children. To enhance child and family service delivery in Aboriginal communities, the health authorities employ community members as community services workers. They assist social workers in providing culturally appropriate supports to Aboriginal families.196
In Nunavik, Northern Québec, the Nunavik Regional Board of Health and Social Services is responsible for providing child protection services for Inuit families. The board covers two regions: Ungava Bay and Hudson Bay. Each region has a health centre that is responsible for health services, social services, a child and youth protection centre, a short-term hospital, a long-term residential care centre, and a rehabilitation centre for troubled youth. A board of directors oversees the regional board, and includes representation from each of the communities, the two local health centres and the Kativik Regional Government.197 A director of youth protection reports to each of the health centres. These directors are responsible for applying child welfare legislation, recruiting foster families, and acting as provincial director for the purposes of the Youth Criminal Justice Act.198 Clearly, child protection is only one of many significant tasks.
Inuit custom adoptions are not only permitted, but are frequent in Nunavik. One-quarter of the children born between 2000 and 2004 have been adopted.199 However, concerns have been raised about the process of custom adoption in Nunavik. There are reports of some families forcing mothers to give up children for adoption. Some adoptions have proceeded in circumstances in which the adoptive family is known to be inadequate. If difficulties arise, the child may end up being adopted repeatedly.200
Following complaints about inadequate child welfare services in Nunavik, Québec’s Commission des droits de la personne et des droits de la jeunesse launched an investigation. The commission’s report, released in 2007, found that Inuit families in Nunavik are facing intense stressors and change, and that the child protection services are not meeting the challenge. The commission described the organizations as operating “in continual crisis mode.”201 There are not enough staff members and social workers to cover the vast geography and remote locations of Nunavik.202 The lack of frontline social services and of preventive programs for children under eighteen is a deficiency that significantly undermines the effectiveness of child protection in Nunavik.
The commission concluded that the fundamental rights of children and young people in Nunavik had been infringed, “in particular the right to personal inviolability, to the safeguard of their dignity, and to the protection, security and attention that their parents or the persons acting in their stead are capable of providing.”203 Slight improvements were reported in 2010, but the commission said the Nunavik system remained fragile and precarious.204
Regardless of where an Inuit family lives, they are likely to experience gaps in services, high numbers of child protection cases, difficulties with custom adoption and foster care, tensions between Inuit cultural values and the mandates and approaches of the agencies serving them, and inadequate prevention services.205
The shortage of social service workers is a significant problem. For example, the auditor general has found that in Nunavut, one-third of its community social service workers positions were unfilled. The Department of Health and Social Services was not meeting its key responsibilities for the protection and well-being of children, youth, and their families. Safety checks of foster and adoptive homes were not done routinely, nor were complete annual compliance reviews of child protection files being completed. These failures to meet legislative requirements placed children at risk. The department could not accurately track the status of children in care or understand their changing needs.206 The government of Nunavut took these criticisms seriously and is taking steps to implement the auditor general’s recommendations.207
Social workers who serve Inuit communities need more than simply an academic degree. They must understand the cultural needs and traditional practices of the communities in which they work. However, the Nunavut Law Review Commission (Maligarnit Qimirrujiit) reported that it is challenging for the social service system to deal with the custom adoption practice.208 Nunavut continues to try to raise awareness and understanding of the Inuit way of life among those who make policies and work in child welfare. According to a report published by the National Aboriginal Health Organization, “traditional Inuit practices, such as custom adoption, [are] essential to improving family and child security. Formal support for kinship relationships and extended family and community responsibility for children can create healthy family environments for all Inuit children.”209
Urban Inuit families and children also have difficulty accessing culturally appropriate services, with only a handful of agencies in the South offering programs for Inuit children and families. Promising approaches to adapting traditional practices to life in the city can be found at the Ottawa Inuit Children’s Centre, Ottawa’s Tungasuvvingat Inuit (a counselling and resource centre), the Manitoba Urban Inuit Association (providing culturally relevant services and helping Inuit peoples with the transition from the North to urban settings), and the Association of Montreal Inuit (a community organization for Inuit peoples). These non-profit organizations are working with Inuit families and child welfare agencies, providing cultural linkages, and promoting safe environments for healthy child development and family stability.
Métis histories and experiences differ from those of other Aboriginal peoples in Canada in terms of their territories, relationship to the land, political institutions, and legal status. The Métis emerged as a distinct nation in the eighteenth and nineteenth centuries, and their historic homeland includes Manitoba, Saskatchewan, Alberta, and parts of Ontario, British Columbia, the Northwest Territories, and the northern United States.210
The Métis population in Canada is growing and increased by 16.3% between 2006 and 2011. The Métis now account for an estimated 32.3% of the total Aboriginal population and 1.4% of the Canadian population. Michif is the Métis language, spoken by an estimated 940 Métis in Canada. Many Métis people also speak Cree or other First Nation languages as well as French and/or English.211
Métis are defined through their identification with ancestors who lived in the historic Métis nation, and through their way of life, culture, language, and relationship to the land, rather than solely by bloodlines.212 The Métis National Council says that a Métis is “a person who self-identifies as Métis, is distinct from other Aboriginal peoples, is of historic Métis Nation Ancestry, and who is accepted by the Métis Nation.”213
Métis peoples have diverse cultural practices and different traditions of childrearing, which evolved from a variety of First Nation and European influences. However, Métis identity is intrinsically linked with and influenced by the extended family, which is the basic unit of Métis society. The residential schools challenged these familial connections, with far-reaching consequences.
Originally, the federal government mandated residential schools to admit “Indian” children exclusively, although many Métis children attended these institutions unofficially. In 1913, the government policy to exclude Métis children from residential schools was reversed. As reported by the Royal Commission on Aboriginal Peoples, “they registered children from every Aboriginal culture—Indian, Inuit, and Métis children too—though the federal government assumed no constitutional responsibility for Métis people. While Métis children would be invisible, rarely mentioned in the records, they were nevertheless there and were treated the same as all the children were.”214
Rates of admittance and attendance of Métis students ranged widely across geographical locations, communities, and even within families. At some schools, such as St. Paul de Métis in Alberta, Métis children were in the majority.215 Before the Commission began gathering statements from Survivors, Tricia Logan was one of the only researchers to collect stories, memories, and oral histories from Métis Survivors of residential schools. Survivors frequently told her of their experiences as outsiders in “Indian schools.”216
The more “Indian” a Métis child appeared, the more likely that he or she would be forced into a residential school. As a report for the Aboriginal Healing Foundation described it, “the closer the government thought the Métis were to First Nation communities, in a geographical or societal sense, the lower class of person they were thought to be. This lower class had priority over other Métis when being considered for admission to residential schools to ensure that the outcasts and menaces of society, living like Indians, were civilized.”217 School admittance was thus based on the perceived inferiority of children who presented as “Aboriginal” and were therefore in greater need of intervention.
With only a half-day of instruction at many schools, it was not unheard of for Métis children to attend schools for a decade or more yet receive nothing more than a Grade Two education.218 As the Métis Nation of Alberta has observed, “There has been some documentation to suggest that the churches considered Métis to be half-white and therefore they were already half-civilized. This apparently justified offering less education to Métis students. Their labour went to financially support the school since much of what was produced in the farm programs was sold to business interests to support the schools and not used to feed the children.”219
The intergenerational impacts of Métis experiences in residential and day schools include the loss of parenting skills, the inability to express feelings, and the loss of language and culture. Elmer Ghostkeeper, a Métis Elder from Alberta has eloquently expressed the impact of the residential school experience:
Love is the greatest emotion in Métis families and this love for each other was greatly impacted by residential schools. Our ways of being as families were also affected. Our family life included fishing, hunting, and family activities such as learning language, berry picking, social time, baby caring traditions, and rites of passage. Our children were enslaved through the residential school system and lost those connections to our culture.220
Métis Elder Deborah Dyck recounted her story of attending Cranberry Portage school in Manitoba as a day student. Both of her parents taught at the school and tried to show kindness in the harsh environment. She recalled that “the residential setting was totally different than what Native kids were used to, it didn’t have the aunty relationships…. As a people, the Métis had to be so resilient and ever changing to live with an environment that was ever changing and moving. We were made stronger by this.”221
Métis cultural consultant Tom McCallum, who attended residential school in Saskatchewan, reflected on parenting and residential schools:
The most important thing is to keep children in touch with their family. They need to understand where they come from and experience love—they need love! Healthy, beautiful, love-filled family interactions were destroyed or attacked in the child welfare/residential school experience.… All parents sang to their children. Each child had a special song that was their song…. I’d walk into the house and my mom would be there and would start singing my song to me. She did this even when I was older. That’s how we got nicknames…. They would always come from your song. We never called each other by our given names.222
The loss of culture and family relationships continues to reverberate, and poses challenges for today’s child welfare system.
Richard Cardinal was seventeen years old when he hanged himself in 1984. From the age of four until his death, this Métis boy lived in twenty-eight different child welfare placements across Alberta, including sixteen foster homes and twelve group homes, shelters, and locked facilities.223 His diary documents his experience and his deep longing to be reunited with his family: “I kept telling myself that this was all a bad dream that I would wake up soon with Charlie and Linda and the rest of my family in our home in Fort Chipewyan but in reality I knew that I wouldn’t wake and that this was real and not just a bad dream.”224 His tragic story brought public attention to the experience of many Aboriginal children in foster care.
Researcher Deborah Canada found that the Sixties Scoop had a profound impact on Métis in Manitoba, where “between 1971 and 1981, 70% to 80% of Manitoba’s First Nation and Métis adoptions were made into non-Native homes.”225 Robert Doucette was a Sixties Scoop child. He recalled being told that his mooshum (grandfather), who attended residential school, was “quite mad” when Doucette was taken away at only four months old. His mooshum “was throwing rocks at the car and swearing at them in all the languages that he knew he could speak, Michif, Cree, Dene, French and English. I think he probably swore at them in each language, but he was powerless to stop them.”
Doucette was adopted into a family with five other Métis foster children. His foster father had to fight with the school in Prince Albert to allow him to use his birth name of Doucette. He faced much racism in Prince Albert. Despite being an excellent hockey player who was offered a tryout with a Junior A team, he turned to individual sports like track and field where he had more control over how he was treated. Doucette recalled how he was “a brown white guy” until he began to study his culture as an adult. His sister in his foster home was not as lucky and took her own life while in a penitentiary in Kingston, Ontario. He recalled “how sad” it was that her birth father only saw his daughter when she was born and when she was buried.
Doucette told the Commission, “We have to deal with our own internal racism amongst ourselves, because there are a lot of people from the Sixties Scoop that are trying to make their way back, that are being abused by our own people, because they just don’t want to believe that they are who they say they are.”226
As is the case with the number of Métis children in child welfare, the number of Métis children adopted out in the Sixties Scoop can only be estimated. Reliable numbers are not available because Métis identity is inconsistently recorded. Métis children may not self-identify or even be aware of their Métis heritage. A lack of knowledge and training leads some social workers to misidentify Métis children as Aboriginal. Estimates of the number of Métis children in care are likely conservative and researchers are often unable to track the progress and outcomes of Métis children involved with child and family services.227
The First Nations Component of the Canadian Incidence Study of Reported Child Abuse and Neglect was not able to generate separate estimates of Métis child maltreatment investigations because there were not enough investigations of Métis children in the data to be statistically reliable.228 Data is likewise scarce provincially. In British Columbia, the Ministry of Children and Family Development reported that of the 4,642 Aboriginal children in care in 2009, just over 650 (14%) were identified as Métis.229 The provincial auditor in Manitoba reported an increase in the number of Métis children in care between the fiscal year 2009–10 and 2010–11, from 797 to 908.230 But this appears to be the extent of concrete information. Clearly, there is a gaping hole in terms of knowledge about the experience of Métis children and child welfare; accurate and up-to-date research is vitally needed.
Without information, the distinct needs of Métis families cannot be met. A pan-Aboriginal approach is not appropriate. A Métis child’s identity development “can be compromised in cross-cultural care if they are immersed in the dominant culture.”231 Métis peoples have traditional concepts of connectedness and kinship relationships that can form the basis for positive and effective child welfare interventions. Culturally appropriate supports from extended family can permit children to remain in their homes and communities.232
The development of Métis-specific child welfare institutions is in its infancy. The federal government does not provide funding for these services, taking the position that it is not responsible for Métis peoples, or indeed for any Aboriginal peoples who do not live on reserves. The government fought for twelve years to stop litigation aimed at obtaining a legal ruling on federal jurisdictional obligations with respect to Métis and “non-status Indians.” In April 2014, the Federal Court of Appeal ruled in Daniels v. Canada that Métis are included as “Indians” within the meaning of the Constitution Act, 1867, which would mean that the federal government does indeed bear responsibility for Métis peoples.233 The Federal Court of Appeal dismissed a lower court’s finding that “non-status Indians” also fall within federal jurisdiction.234 Both sides have appealed to the Supreme Court. It is anticipated that the Supreme Court will hear the case in 2015.235 In the meantime, Métis children rely upon provincial child welfare agencies that, for the most part, are not designed to meet their unique needs.
There are some exceptions. The most developed Métis child welfare system is in Manitoba, where the first Métis child and family service agency in Canada was opened in 2000 as a result of an agreement between the province and the Manitoba Metis Federation.236 Today, Métis peoples in Manitoba requiring child and family services receive culturally appropriate services from the Métis Child and Family Services Authority, delivered by the Métis Child, Family and Community Services and the Michif Child and Family Services Agency. The creation of this Métis-specific child welfare authority may lead to the more accurate identification of Métis children in care over time.
In Alberta, the province funds municipalities as well as Métis settlements for Métis child welfare services,237 such as the Metis Child and Family Services Society in Edmonton and the Métis Calgary Family Services Society. In British Columbia, five Métis child and family service agencies deliver services while a non-profit organization, the Métis Commission for Children and Families, consults with the provincial government.238
Little progress has been made in Ontario, but the Métis Nation of Ontario has made recommendations to the provincial government to better adapt child welfare laws to the needs of its community. The Nation has recommended amendments to the Child and Family Services Act to allow for Métis-run child and family services. It has also suggested changes to the collection of data to identify Métis children in care, and better training for social workers to work effectively and respectfully with Métis families. As of spring 2015, these recommendations have not been implemented.239
Inequitable access to the kinds of health and healing services that can prevent the need for child welfare interventions further undermines the effectiveness of child welfare services. Health disparities, high unemployment, inadequate housing, and educational issues need to be addressed to ensure that Métis children have the best chance for a happy and healthy life.240
Métis Elder Leanne Laberge from British Columbia stressed the importance of taking every opportunity to take the Métis spirit into spaces where Métis people need to be represented.241 In spite of the geographical differences of Métis peoples in Canada, Métis peoples are an extended family. In upholding the extended family, the role of Métis women will be critical, since “women are the teachers” who keep family information, stories, inspire the work ethic, and “look after the spiritual needs and knowledge of the family.”242
Métis who were involved with residential schools or the child welfare system will need supports to ensure that they can reconnect with their traditions and “to recover what has been stolen in terms of their family stories, their cultural identity, and their ancestral pride.”243 It is not only the children taken who require such supports—the parents, extended families, and communities have also suffered.
The Government of Canada should not let unresolved jurisdictional disputes stand in the way accepting its responsibilities. Helping Métis people reconnect with their ancestral ties “means helping families to find and reconnect with those who have been taken, those lost in the foster care system, those taken to Europe by adoption, those lying in unmarked graves away from home.”244
Child welfare institutions in Canada are failing First Nations, Métis, and Inuit children. All of these groups are being disproportionately investigated and then placed in child welfare care. Many of the conditions that result in disproportionate Aboriginal involvement in the child welfare system are related to the intractable legacies of residential schools including poverty, addictions, and domestic and sexual violence.
Mary Anne Clarke was married to a residential school Survivor. She told the Commission that she worries that child and family services are
carrying on some of the same tragedies that kids[went]through [in]the residential schools. I’m a [Child and Family Services] worker myself, and I know what it’s like to be in a position to apprehend children. But there’s got to be a better way than having the community decimated by it. There’s got to be a way to keep, strengthen the community, putting the supports and services that they need so that they don’t get removed from the community.
She suggests that we move away from “band-aid solutions” and learn from the experience of the residential schools:
If anything that the school situation has taught us, it’s to listen. And I think we need to do the same for the ones who are victims of [Child and Family Services]. And I say victims. I know [Child and Family Services] has helped some people, I’m not saying that, but there’s a lot of victims out there, too. And the system is not adequate. And if we listen to the people who have been affected, I do believe we find our answers.245
Child apprehension is not a step that child welfare officials take lightly. Yet, for most agencies, it is the only means they have to be funded for providing services. More resources devoted to a wide range of services could help prevent the need for critical interventions. As residential school Survivor Shirley Morris told the Commission, “You look at all these kind of problems and you see even some of our child services like an extension of the residential school system. How they’re taking our children away instead of working with the parents and offering them help, and maybe even respite care. Because of the stress, they never learned to be parents, especially when they’re having kids [at] sixteen, seventeen, eighteen. They don’t know how to look after kids.”246
Important steps have been taken to shift control over Aboriginal child welfare to Aboriginal peoples. But without the necessary funding and tools, Aboriginal child welfare agencies have been unable to significantly reduce the number of children in out-of-home care. More Aboriginal children continue to be placed in foster care each year than attended residential school in any one year. This is the most compelling evidence of the harmful and continuing legacy of residential schools.
The governments of Canada will need to address Aboriginal child poverty, including matters of housing, water, sanitation, food security, family violence, addictions, and education inequities and outcomes. Child welfare reform is essential, and the crisis of Aboriginal overrepresentation in child welfare cannot be addressed without interventions that also target its contributing causes.
The United States experienced a similar crisis of dramatic overrepresentation of Aboriginal children in care. Congress enacted the Indian Child Welfare Act in 1978 in response. Four years of hearings confirmed that “many state and county social service agencies and workers, with the approval and backing of many state courts and some federal Bureau of Indian Affairs officials, had engaged in the systematic, automatic, and across-the-board removal of Indian children from Indian families and into non-Indian families and communities.”247 Between 25% and 35% of all Indigenous children were removed from their families. About 90% were placed in non-Indigenous homes.248
Professor Lorie M. Graham wrote that the legislative studies and hearings leading to the passage of the Act “revealed how deeply ingrained the assimilative attitudes of the past had become in our society. The cultural values and social norms of Native American families—particularly indigenous child-rearing practices—were viewed institutionally as the antithesis of a modern-day ‘civilized’ society.”249 Professor Graham explained how the Act attempted to counter those attitudes and affirm the legitimacy and the importance of Indigenous families. She recognized that “no law could dictate a change in the attitudes of social workers, educators and judges regarding indigenous culture.” However, a law could “minimize the effects of those lingering attitudes by setting minimum standards and procedures for the future placement of Native American children outside the home.”250
The American law now in force governs any custody proceeding involving the termination of parental rights, the implementation of foster care, or the adoption of a Native American child. Tribal courts have exclusive jurisdiction over custody proceedings involving Native American children living on a reservation. Tribal courts also have concurrent and presumptive jurisdiction over child custody cases where the child lives outside of a reservation.251
Where a state court has jurisdiction over a case involving an Indigenous child, the Act provides for minimum procedural guarantees, including notice to both the parents and the Indian tribe if a state agency is petitioning for foster care or the termination of parent rights. Parents have the right to court-appointed counsel. State agencies have to prove “beyond a reasonable doubt ... that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child,” which is a higher standard than that applied in custody proceedings involving non-Indigenous children.252 The state agency must also call the testimony of “qualified expert witnesses” before parental rights can be terminated. To be qualified, the expert must have “particularized knowledge regarding Indian culture.”253
If the court orders a placement, it must give preference to the Indian child’s extended family or, failing that, another tribal community placement.254 Child welfare agencies must prove that “active efforts” have been made to prevent the breakup of the family before a court can order foster care or termination of parental rights.255
The system in the United States is far from perfect. Critics have argued that state courts have simply used creative legal arguments to get around the provisions of the Act.256 In 2013, three families and two tribes, the Oglala Sioux and the Rosebud Sioux, filed a class action lawsuit alleging that the State of Minnesota had repeatedly removed children from their homes without due process.257 As in Canada, high rates of poverty, unemployment, crime, and substance use have contributed to the apprehension of Indigenous children, and even a reformed child welfare system can do little to alleviate these problems.258
Nonetheless, after thirty years, the Indian Child Welfare Act has achieved a number of positive results, including greater tribal authority over the placement of Indigenous children as well as the expansion of family preservation programs. Indigenous children are still removed from their homes in disproportionately high numbers, but the rate of overrepresentation has decreased. The rate of placement with non-Indigenous caregivers has also decreased.259
A number of Canadian jurisdictions have similar presumptions built into their legislation, such as the need to respect the integrity of Aboriginal families, the importance of cultural continuity, and the benefits of kinship care. However, the American model has one key difference: it places judicial control over child welfare in the hands of tribal courts.
To begin to address the national Aboriginal child welfare crisis, reform is essential. A key part of that reform is greater consistency in the regulatory framework that guides the work of child welfare authorities. That framework must acknowledge the central role of Aboriginal agencies in decision making about child welfare matters. As Aboriginal justice systems evolve, they too will come to play a part in determining child apprehension and custody matters. Establishing national standards is the first step towards developing greater consistency in decision making and ensuring that overrepresentation is reduced and that culturally appropriate placements become the norm.
4) We call upon the federal government to enact Aboriginal child welfare legislation that establishes national standards for Aboriginal child apprehension and custody cases and includes principles that:
i. Affirm the right of Aboriginal governments to establish and maintain their own child welfare agencies.
ii. Require all child welfare agencies and courts to take into account in their decision making the residential school legacy.
iii. Establish, as an important priority, a requirement that placements of Aboriginal children into temporary and permanent care be culturally appropriate.
In October 2005, Cindy Blackstock and colleagues presented a report titled Reconciliation in Child Welfare: Touchstones of Hope for Indigenous Children, Youth and Families to an audience at Reconciliation: Looking Back, Reaching Forward—Indigenous Peoples and Child Welfare, a conference held in Niagara Falls, Ontario. The report provides some helpful guidelines to consider in approaching child welfare reform:
• Recognize the past, and current, multigenerational and multidimensional impacts of colonization on Indigenous children, youth, and families;
• Honour those who suffered the loss of their family relationships and identities as a consequence of child welfare decisions, and those who have kept family relationships strong despite all odds;
• Respect those who have worked, and continue to work, to build and develop culturally based services and policies;
• Affirm that all Indigenous children and youth have the right to family (nuclear and extended), safety, and well-being, and to be able to identify with, and thrive as, a member of their culture of origin.
Further, it is expected that the path to reconciliation in child welfare will
• Acknowledge the mistakes of the past, and establish a child welfare profession based on non-discriminatory values, social justice, and fundamental human rights;
• Set a foundation of open communication that affirms and supports Indigenous families and communities as the best caregivers for Indigenous children and youth;
• Respect the intrinsic right of Indigenous children, youth, and families to define their own cultural identity;
• Improve the quality of, and access to, services for all children, youth, and families to free the potential of each person;
• Build a united and mutually respectful system of child welfare capable of responding to the needs of all children and youth;
• Strengthen the ability of the child welfare profession to learn, ensuring past mistakes do not become tomorrow’s destiny.260
The document sets out five principles (self-determination, holistic response, respect for culture and language, structural interventions, and non-discrimination), framed within a four-phase process of reconciliation (truth telling, acknowledging, restoring, and relating). It includes tools to assist Aboriginal communities to clearly document their vision of healthy children and families and to work with Aboriginal and non-Aboriginal community members, professionals, and other stakeholders to implement the measures needed to achieve that vision. Touchstones of Hope seeks to stimulate a process for community-specific, community-driven plans for child safety. However, communities must have the resources and powers necessary to implement their own creative community solutions to the child welfare crisis.261
An independent evaluation of the implementation of the Touchstones of Hope principles in Northern British Columbia suggests that it has been very effective in shifting the relationship between First Nations and mainstream child welfare providers to one based on a shared vision and a commitment to better support First Nation families.262
A number of promising and innovative Canadian programs have been developed. They are subject to Aboriginal control and inspired by First Nations wisdom and practices.
Nishnawbe-Aski Legal Services in Thunder Bay, Ontario, launched the Talking Together Program (TTP) in 2001 as an alternative to court proceedings in child protection matters. Talking circles bring together families, social service workers, and Elders to explore creative solutions in a non-judgmental environment. Their solutions are then implemented as the plan of care for the child.
The participation of families and community members is the cornerstone of the program. Rather than the usual, often ineffective addiction and anger management treatment options, TTP allows for more innovative solutions for the care of children.
In 2005, 135 children remained in their home communities following involvement with TTP. The next year even more, 218, remained in their community.263 In some areas, TTP has been so effective that it has evolved into a prevention program rather than a crisis intervention service. This means the program is able to address concerns early so that child protection services do not have to become involved.
The Meenoostahtan Minisiwin First Nations Family Justice Program in Manitoba was developed by a mandated Aboriginal child protection agency. The program brings families, community members, and service providers together to achieve long-term protection of children by getting at the roots of the family’s concerns. The process is based on Aboriginal traditions of peacemaking, and all participants must be fully informed volunteers. Since 2000, the program has served approximately two hundred families each year.
A 2004 evaluation indicated very high levels of participant satisfaction. Participants said that their voices were heard, there was positive and open communication, and it was a safe and comfortable environment for families. The evaluation found that “95% of referring agents stated that the program was valuable to their First Nation community.”264
This talking circle program involves volunteers from Toronto’s Aboriginal community, including an Elder and an auntie for each talking circle. The talking circle may also include a representative from the child’s community. The program provides a safe and culturally relevant place for families, children, and child welfare officials to come together to develop a plan that will meet the needs of the child.
Talking circles can take place before or after apprehension. After apprehension, the program requires the consent of at least one parent as well as Native Child and Family Services of Toronto, the mandated child protection agency for Aboriginal families in Toronto. Children over twelve years of age may participate in the talking circle. An auntie from the council will also meet with the child and represent the child’s interests in the circle.
A council hearing cannot usurp the role of the courts in determining the best interests of the child. However, a council hearing may arrive at a plan for the child more quickly, and with greater participation from the parties.
Rene Timleck has acted as an auntie in the council. At one time, her own children were taken into care by the Children’s Aid Society. Her own experiences help her “understand the fear the parents feel in their dealings with Native Child and Family Services,” which has “the power to take or keep their children away.” She also understands “the responsibility that the agency’s workers feel in keeping the children safe.”265 Timleck described the circle as “a process that helps to heal families while protecting children.” She continued,
Much is revealed in a day-long hearing. Everyone involved comes closer to the truth than when they are in a courtroom. There is less chance of losing sight of the real issues in the Council process. In court proceedings, it is often how knowledgeable the lawyers are and who presents their case the most eloquently, rather than the real issues at hand—whether it be criminal or family proceedings. The council process allows for the problem to be dealt with on a more personal level, with the people involved being a part of the process. I believe that such councils could be a very effective tool in assisting people of any culture and, therefore, in all society.266
Timleck believes that the collective plans formulated in the circles can “allow for more people to be involved in the safekeeping of children in their communities.… With the Council, decisions are made by a collective, so the onus of responsibility is spread out amongst several people” rather than placed on a single judge.267
Another recent innovative approach to child protection cases is one that has been used with Indigenous families in Australia called the Signs of Safety approach.268 Signs of Safety is a child protection model that focuses on partnerships with parents and children to stabilize and strengthen families. Some Aboriginal agencies in Manitoba have started studying this approach to whether it might be useful in a Manitoba context.
A move toward more community participation in child welfare matters and programs that draw on Aboriginal traditions and wisdom is encouraging. However, although Aboriginal programs may be better able to draw on kinship and community resources than court-based child welfare proceedings, it is important to recognize that most Aboriginal communities have limited resources. Such programs are resource intensive and require stable funding. Like all programs involving children, they should also be carefully evaluated.
Community programs are important and inspiring, but the ultimate solution to the child welfare crisis must lie in better child welfare decision making and culturally appropriate support of families, together with broader reform to address poverty, addiction, mental health, and family violence issues, which are themselves part of the legacy of residential schools.
The legacy of Canada’s colonial past, including the residential school system, cannot be simply willed to an end. We must ensure that Aboriginal parents, families, and communities have the resources they need to overcome the trauma of how they have been treated in residential schools and in broader society. The story of Canada’s child welfare institutions and Aboriginal peoples suggest that the lessons of the residential schools have not yet been learned. A renewed approach to child welfare, based upon the Touchstone of Hope principles of self-determination, holistic response, respect for culture and language, structural interventions, and non-discrimination, can be a starting point to reversing the harmful legacy of the residential schools upon Aboriginal children and bringing about reconciliation.
Recognizing and prioritizing actions to redress the present and growing crisis of Aboriginal overrepresentation in the Canadian child welfare system will be a test of the political will and courage of the parties to the residential schools settlement agreement, and ultimately all Canadians.