Returning to Find Much Wealth: Identifying the Need for a Revised Judicial Approach to Aboriginal Kinship in British Columbia

• Author: Kisa Macdonald
• Position: Has a broad range of interests in the law, including: child protection, immigration, employment, family law and personal injury
• Pages: 114-135

114 wAPPEAL VOLUME 15

ARTICLE

RETURNING TO FIND MUCH WEALTH:

IDENTIFYING THE NEED FOR A REVISED

JUDICIAL APPROACH TO ABORIGINAL

KINSHIP IN BRITISH COLUMBIA

By Kisa Macdonald*

: (2010) 15 APPEAL 114-135

INTRODUCTION

is article explores how the Canadian legal system might recognize the kinship relation-

ships of Aboriginal children.1First, I will briey introduce the concept of kinship. Next, I

will outline how the federal and provincial governments have enacted decisions about Abo-

riginal kinship. I will then explain how the courts have interpreted this legislative frame-

work, signicantly narrowing the statutory, as well as common law, obligations to act in the

best interests of Aboriginal children, families, and communities. I will also discuss rationales

that could inform a new approach to kinship. Finally, I will show how a Gitksan narrative

may provide the appropriate legal principles and remedies to recognize and restore kinship.

I. IMPORTANCE OF ABORIGINAL KINSHIP

A thorough description of Aboriginal kinship would explain the unique, diverse and com-

plex nature of kinship structures and outline the breadth of circumstances in which kin-

1. This paper will provide an analysis of whether the courts ought to recognize an Aboriginal right to maintain

kinship. My legal research has also been a journey of the heart, as I have sought to understand the underlying

causes of the breakdown and loss of kinship bonds. While writing, I have been aware of the tragic losses

experienced by Aboriginal families. I have held to the hope that the legal system will choose to take a new

approach to custody and adoption decisions about Aboriginal children. I am hopeful that there will be an

opportunity for government and judicial decision-makers to recognize the unique identity, language, culture

and kinship that are intrinsic to the lives of Aboriginal children.

* Kisa Macdonald has a broad range of interests in the law, including: child protection, immigration, employment,

family law and personal injury. She is currently working as a research assistant for the Canadian Centre for Elder

Law, a national non-prof‌it dedicated to exploring the particular legal issues, which affect older Canadians. This

article was written during her third year as a law student at the University of Victoria. She would particularly like

to thank John Borrows, Val Napoleon and Jane Smith for sharing their knowledge of indigenous legal systems

with her.

APPEAL VOLUME 15 w115

ship obligations occur. Unfortunately, this article does not allow room for a comprehensive

examination of the many distinct Aboriginal kinship systems that exist within Canada. In-

stead, I will provide specic examples of how Aboriginal kinship is a signicant theme in

narrative, common law reasoning, and contemporary art.

A. Restoration of Kinship in Narrative

e antamahlaswx narrative about the origin of Gitanmaax provides an example of kin-

ship’s centrality to an indigenous society.2is is the story of the beginning of Gitanmaaxs:

A young girl, the daughter of a chief, became ubin (pregnant). No one knew

who the father was. e young girl did not know who the father was either.

Each night she climbed a ladder that the servants put up for her and aer

she climbed up the ladder was taken away, so no one could get to her and

she could not get out. Yet each night a handsome young stranger would

come to her.

Her father, the chief, was very angry and the Gitxsan were afraid. e chief

ordered the Gitxsan to pack their belongings and load up the canoes. ey

were going to abandon the young girl. e handsome young man had dis-

appeared.

e young girl wept as she watched the canoes disappear around the bend

in the river. Her mother had le her food and given her hurried instruc-

tions on how to deliver her babies when the time came. ey did not know

that she was going to have triplets.

Her food supply ran out. She sat on the banks of the ‘Xsan thinking she

could easily slip into the water. Who would know and who would care. It

was at this time the babies decided to be born. She knew she had to eat to

keep up her strength and feed her babies. She held her three tiny babies

and wept.

In the Gitxsan culture, in times of great distress, Uun ts’iits’ (a supernatu-

ral being) comes from the earth, to help. Uunts’iits’ appeared before the

weeping mother and instructed her to take strips of bark from the birch

trees and make torches. Uun ts’iits’ explained that the girl must then place

the torches along the riverbank. e light would attract sh and she could

spear them. e grateful young mother gave the Uun ts’iits’ her earrings in

payment and the Uun ts’iits’ disappeared.

Each night the mother would bundle her babies together and leave them in

the longhouse and she would go to the river to sh. She became strong and

condent and soon she had many salmon hanging in the smokehou se. Her

children grew very quickly and soon were a help to her. ey hunted and

trapped small animals, they shed and they picked berries.

2. Val Napoleon, Ayook: Gitksan Legal Order, Law and Legal Theory (PhD dissertation, University of Victoria

Faculty of Law, 2009) [unpublished] at 272 [Napoleon]. “Gitxsan means people of the River of Mist. Salmon

has always been the source of wealth for the Gitxsan; Gitanmaaxs means People who harvest salmon by

torchlight. The f‌irst village of Gitanmaaxs was located by the banks of the ‘Xsan (Skeena River).