Aboriginal children and the dishonour of the Crown : human rights, 'best interests' and customary adoption
University of British Columbia
Master of Laws - LLM
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. 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.
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