Table Of ContentABORIGINAL CHILDREN AND THE DISHONOUR OF THE CROWN:
HUMAN RIGHTS, „BEST INTERESTS‟ AND CUSTOMARY ADOPTION
by
Vicki Trerise
A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF
THE REQUIREMENTS FOR THE DEGREE OF
MASTER OF LAWS
in
THE FACULTY OF GRADUATE STUDIES
THE UNIVERSITY OF BRITISH COLUMBIA
(Vancouver)
July 2011
© Vicki Trerise, 2011
Abstract
Central to the relationship between Canada and Aboriginal children is transgression: the
systematic removal of these children from their families in order to eliminate Aboriginality
from them, and from their society. Fundamental legal and moral issues are implicated: the
sovereignty of the Crown, legality versus legitimacy, the nature of customary law, the legacy
of colonialism, and the human rights of children and of minority groups.
A constitutional enactment at Confederation created the „legal‟ power to remove decision
making authority from Aboriginal people, and then to actually remove their children by law.
This power was first used to place the children in residential schools as part of the colonial
project to eliminate Aboriginal culture. It extended into the child protection arena, which has
different purposes but arguably the same effect. This use of constitutional authority is
examined and found to be contrary to the principles of Canadian constitutionalism.
Alternative legal approaches are examined: a „principle of continuity‟ of customary laws,
international recognition of the rights of Indigenous peoples, and positive obligations of the
Canadian state, the „honour of the Crown‟.
Custom adoption is a widespread tradition among Aboriginal peoples; it is demonstrated to
be the means whereby Aboriginal societies address the safety of their children. Given that
this practice has been recognized as an existing Aboriginal right, I explore the thesis that full
recognition of a right to engage the customary practice may provide a route to address this
fundamental violation.
ii
The research undertaken leads to the conclusion that custom adoption includes a decision
making process; it is actually the exercise of a customary law jurisdiction. I argue that the
authority of this jurisdiction should be explicitly recognized within a pluralist Canada.
Related issues are discussed: the „best interests of the child‟, respective sovereignties,
reconciliation, individual and collective goals, and interface between jurisdictions.
The failure by Canadian society to comprehend the linkage between the removal of
Aboriginal children and the human rights of those children as members of Aboriginal society
has done enormous damage. A concrete act of reconciliation is required, by law and by
honour.
iii
TABLE OF CONTENTS
Abstract .................................................................................................................................... ii
Table of Contents ................................................................................................................... iv
Terminology ........................................................................................................................... vii
Acknowledgements ................................................................................................................ ix
Introduction ............................................................................................................................. 1
Chapter 1 Who Will Raise Aboriginal Children? ........................................................... 9
1.1 The Constitutional Regime – “Indian” as „Other‟ ................................................... 11
1.1.1 Background – Colonial Policy ......................................................................... 11
1.1.2 Confederation: Distinct Constitutional Status of „Other‟ ................................. 16
1.2 Establishing Decision Making Authority Over Aboriginal Children ...................... 17
1.2.1 The Residential Schools – A Fundamental Attack on the Cultural
Survival of Aboriginal Peoples ........................................................................ 17
1.2.2 Transition of Authority over Aboriginal Children from Federal to
Provincial Jurisdiction ..................................................................................... 27
1.2.3 Removal of Aboriginal Children for „Child Protection‟ Purposes ................. 32
1.2.4 The Operation of Internalized Colonial Attitudes within Child
Protection ......................................................................................................... 42
1.2.5 Changes in Direction ...................................................................................... 46
1.3 Aboriginal Children and the State – An Ongoing Tragedy ..................................... 51
1.3.1 New Data, Old Story: “Over-Representation” ............................................... 51
1.3.2 Federal Support for the First Nations Family and Child Services
Program ........................................................................................................... 59
1.4 Best Interests, Worst Results ................................................................................... 63
1.4.1 Distinct Constitutional Status of „Other‟ .......................................................... 64
1.4.2 Fundamental Attack on the Cultural Survival of Aboriginal Peoples ............. 65
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1.4.3 A Continuing Pattern of Child Removals in the Name of Child
Protection .......................................................................................................... 67
1.4.4 Internalized Colonial Attitudes Continue to Operate in the Field of
Child Welfare ................................................................................................... 68
1.4.5 Failure to Consider the Linkage Between Removal of Aboriginal
Children and Their Collective/Human Rights as Members of the
Aboriginal Collective ....................................................................................... 68
1.5 Conclusion ............................................................................................................... 70
Chapter 2 'Otherness' and 'Recognition': Considerations of Legality, Legitimacy
and the 'Colony Within' ................................................................................. 72
2.1 The Legitimate Exercise of Constitutional Authority .............................................. 74
2.1.1 Theory of Unwritten Constitutionalism ........................................................... 75
2.1.2 Unwritten Constitutionalism in Canada ........................................................... 80
2.1.2.1 Text and Interpretation ........................................................................... 80
2.1.2.2 Historical Context .................................................................................. 83
2.1.3 Conclusion – and Consequences ...................................................................... 89
2.2 Continuation of Customary Law .............................................................................. 92
2.3 The Right of Existence of the Aboriginal Human Group ........................................ 95
2.3.1 The Nature of Group Rights ............................................................................. 95
2.3.2 Group Rights in International Law: From Prohibiting Genocide to
Protecting Diversity ........................................................................................ 101
2.3.3 Extending Group Rights to Indigenous Peoples ............................................. 105
2.4 The Honour of the Crown ..................................................................................... 116
2.5 Conclusion ............................................................................................................. 120
Chapter 3 Aboriginal Rights, Customary Law and the Authority to Care for
Children ......................................................................................................... 123
3.1 Foundations for the Recognition of Aboriginal Rights .......................................... 125
3.1.1 Colonial Recognition of Aboriginal Customary Law .................................... 125
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3.1.2 Canadian Recognition of Aboriginal Customary Law: Family
Relations ......................................................................................................... 129
3.1.3 The Shift from Common Law Rights to Constitutional Rights ...................... 134
3.1.4 Rights Originating with the Recognition of Pre-Existing „Organized
Societies‟ ........................................................................................................ 144
3.1.5 The Scope of Aboriginal Rights – What Direction? ...................................... 154
3.2 „Custom Adoption‟ as an Aboriginal Right ........................................................... 158
3.2.1 Customary Adoption – What Is the Nature of the Right? .............................. 158
3.2.2 The Role of „Custom Adoption‟ in Aboriginal Society: Ethnographic
Literature ........................................................................................................ 167
3.2.3 The Role of Custom Adoption: Review of Jurisprudence.............................. 176
3.2.4 The Role of Custom Adoption: A Re-Appraisal ............................................ 182
3.2.5 Reconceiving the Aboriginal Right ................................................................ 187
Chapter 4: Custom Adoption: the Exercise of a Customary Law Jurisdiction ............ 191
4.1 Customary Law ...................................................................................................... 192
4.2 The Interface between Canadian Jurisdiction and Indigenous Jurisdiction with
Respect to the Care and Well-Being of Aboriginal Children ................................ 201
4.2.1 „Best Interests of the Child‟ as the Governing Standard for Decisions
About Children ............................................................................................... 204
4.2.2 Legal Pluralism and Respective Sovereignties............................................... 209
4.2.3 Reconciliation or Parallel Streams? ............................................................... 212
4.2.4 Putting Children Before Collective Political Goals ....................................... 217
4.2.5 Exercise of the Jurisdiction ............................................................................ 223
Conclusions: Revisiting the „Best Interests‟ Concept ...................................................... 230
Bibliography .........................................................................................................................237
vi
Terminology
The terminology used to identify people or peoples who are of a heritage indigenous to North
America and to Canada is not entirely consistent in this document. There is a political context
in which these words are being used, and that context is currently very much in flux. That
being the case, the best I can do is outline the thinking which has guided my choice of words.
I have most often used „Aboriginal‟ as the general term to encompass all of the categories of
peoples who are indigenous to the territories which now constitute Canada. I use this term
because it is most widely used within the mainstream Canadian legal context, as the signifier
of inclusion of a variety of groups which have, or have had different levels of recognition:
Indians, First Nations, Eskimo, Inuit and Métis, as examples. The Constitution of Canada
since 1982 specifically confirms that all of these indigenous groups, and all of the diverse
groups within these groups, are included within the meaning of „aboriginal‟ in that document.
I capitalize Aboriginal, unlike its usage in the Constitution, because to me it signifies an
over-riding nationality or „peoplehood‟ held in common by the constituent nations and
individuals indigenous to the territories of Canada. It seems analogous to Canadian, or
Hungarian, or Chinese: it is more like a title, an identity-bundle, than an adjective.
At the international level, the term „Indigenous‟ plays a parallel role as a peoplehood
designation for peoples throughout the world who are indigenous to territories which were
subsequently occupied and colonized by peoples foreign to those territories. When used in
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that sense, as a title, it is capitalized in this thesis. When it is used as an adjective it is not
capitalized, although sometimes this line is not easy to draw. While it is foreseeable from the
current literature that „Indigenous‟ will replace „Aboriginal‟ as the most appropriate self-
designation in use in Canada, I have stayed with „Aboriginal‟ because of its current
widespread use within the Canadian legal context.
I use other terms when it seems appropriate given the time period or the sources under
discussion. For example, „Indian‟ is associated with the time of European contact and
colonization, and subsequently was ascribed a very particular legal meaning in colonial and
constitutional documents. „Native‟ came into more common usage in the 1960s through into
the 1980s, a time when there was growing awareness that there was a problem with the Euro-
Canadian definition of the original inhabitants as „Indians‟. From the 1990s, different groups
among the Aboriginal peoples have been asserting their separate conceptions of self in group
titles. Those who were other-designated as „Eskimo‟ now self-designate as Inuit, Inuvialuit or
other national titles. Those who were other-designated as „Indian‟, or whose heritage is of
those peoples even if the Canadian state did not include them among the holders of the status
of „Indian‟, now self-designate as First Nations.
This is the framework I have roughly followed in the terminology of the thesis.
viii
Acknowledgements
I had an excellent learning experience in the LL.M. program at U.B.C. Law. Many thanks to
Doug Harris and to Joanne Chung for their support, assistance and encouragement; also
thanks to Professors Shigenori Matsui and Mary Liston who lead the LL.M. seminar with
rigour and enthusiasm. I had the good fortune to go through the seminar year with an
outstanding group of colleagues: interesting, challenging, lots of fun and mutually
encouraging. The seminar sessions, and post-session de-briefings, were a highlight.
My thanks for active support for my application into the program by three friends/colleagues:
Michelle LeBaron, Heather MacNaughton and Robert Daum. The faculty members I studied
with in my coursework assisted me to develop and refine my thinking. I learned a lot from
each of them: Professors Roshan Danesh, Susan Boyd and Robin Elliott. The staff members
of the Law Library were simply an outstanding resource; they were all unfailingly helpful,
patient and generous.
My supervisor, Professor Sharon Sutherland, was a huge help to me in the task of turning my
somewhat unstructured thoughts and information base into a thesis. Our conversations
challenged me to get to the core of my thinking, and Sharon‟s questions and observations
pushed me to consider the depth of critique which my work would have to address. Her
persistent practical advice on issues of structure and overall presentation was enormously
useful to me as I struggled to develop a vision of the forest without getting completely lost in
the trees. Many thanks!
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Early in my thesis development, Professors Mary Liston and Darlene Johnston both
confirmed and encouraged my inclination to try to stay close to the normative issues which
arise in an examination of the relationship between the state and the children of Aboriginal
peoples. And throughout the process, I appreciated the interest and encouragement offered by
Professors Susan Boyd, Claire Young and Doug Harris.
As my process of writing neared its conclusion, my thesis and I benefited from the overview
of Professor Fiona Kelly. She offered the invaluable perspective of an informed reader who
sought clarity, identified unanswered questions, and generally helped to strengthen the
document. It was very helpful input, much appreciated.
When it came time to turn my overly independent chapters into a document, with formatting
and footnotes, I was very grateful for the assistance of Barbara Kuhne. And both I and my
thesis have had the benefit and joy of ongoing discussion and commentary with my most
challenging supporter, Nancy Richler.
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Description:of Canada, the British North America Act, 1867, wherein “Indians, and lands .. governance, such as Regulation of Trade and Commerce (s Amendments to the Indian Act in 1880 established the Department of Indian Affairs [DIA] years 2000-2002 Aboriginal children were less than 5% of the total
