Aboriginal child protection and dual citizenship: Membership has its benefits.

Author:Hunter, Troy

In British Columbia, the Director representing the Ministry of Children and Family Development must notify the Aboriginal community (i.e. Indian Band) when there are child protection concerns such as removal of a child from their parents.

Under the Child, Family and Community Services Act (CFCSA), an Aboriginal Community (i.e. "treaty first nation, an Indian band or aboriginal community") is one that is designated by the Minister. This seems to run contrary to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) under the self-determination aspects of that international instrument where Indigenous peoples have the right to, "freely determine their political status and freely pursue their economic, social and cultural development" (UNDRIP, Article 3).

The Band being named and served with court documents gives them (the Indigenous community) a right to attend the presentation hearing as a "designated representative" to make submissions and advocate the communal concerns for the child. Since parents have access to Legal Aid, so too should Indigenous communities have access to lawyers through Legal Aid to represent them as part of the child's best interests. Moreover, under the Guiding Principles, s. 2 (f) of the CFCSA, it is stated, "the cultural identity of aboriginal children should be preserved". Also, the CFCSA provides under s. 4(2), "If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests".

In speaking of best interests, an Aboriginal person has Aboriginal rights, which confers a benefit upon members of an indigenous group. Section 35 of the Canadian Constitution Act provides for Aboriginal rights to be recognized and affirmed. The test for Aboriginal rights was established by the Supreme Court of Canada in R. v. Van der Peet, [1996] 2 S.C.R. 507 where the Chief Justice stated at para 55:

"To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part. The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society's distinctive culture. He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive--that...

To continue reading