Reconciliation in Child Welfare: Relations Between Non-Aboriginal Child Welfare Agencies and the First Nations, Inuit and Métis
By Tracy Engelking

There are currently approximately three times more Aboriginal children in care in Canada than at the height of the residential school system in the 1940's. While Aboriginal children represent only five percent of the children in Canada, they constitute about 40 per cent of the children in care in this country. The incapacities created within First Nations, Inuit and Métis communities by the Indian Residential Schools policy, and other colonial practices, have led to the current reality. It is time that those of us in child welfare acknowledge the uncomfortable truth that, not-withstanding the existence of legislative prescriptions in Ontario since at least 1984, we have essentially continued to play the same role as did the residential schools, that is to remove First Nations, Inuit and Métis children from their families and communities. And in many cases, again notwithstanding those prescriptions to the contrary, we are still not giving them back.

That is not to say that we should not have in the past, or should not continue, where necessary, to remove First Nations, Inuit or Métis children who are suffering harm or are at demonstrable risk of suffering harm. It is our mandate to protect children from harm. Removing them, at least temporarily, may not be avoidable and, unfortunately, until the human capacity that the Indian Residential Schools policy destroyed can be rebuilt, we will likely not be in a position to stop.

What I do mean to say, however, is that it is time to recognize and understand, without judgment, the tremendous intergenerational harm occasioned by the policies and practices which were meant to, and did, incapacitate whole communities, particularly as it related to the ability of those communities to healthily care for and raise their children. In the cycle of reconciliation described by Blackstock et al, in the "Touchstones of Hope", it is time for truth telling and acknowledging, so that we can, in fact, actually move on to restoring and relating.

Dan George, a Board Member of the Aboriginal Healing Foundation, and a member of the Wet‘suwet‘en of British Columbia, has written that one of the greatest impediments to reconciliation in Canada is the "memory of convenience that permeates Canadian Society". I had occasion to ponder on this "memory" or history "of convenience" awhile back when I attended a presentation by the Chief Justice of the Supreme Court of Canada, the Right Honorable Beverly McLaughlin, regarding the development of human rights law in Canada. Chief Justice McLaughlin delivered a beautiful speech on the chronological evolution and enactment of various human rights instruments in Canada, including both provincial and federal Human Rights Codes, up to and including the Canadian Charter of Rights and Freedoms. She spoke eloquently about the involvement of Canada in first, the League of Nations, and later the United Nations, as well as about our not insignificant contribution to the development, indeed authorship, of the Universal Declaration of Human Rights, and our enthusiastic ratification of the Convention on the Rights of the Child.

While our Chief Justice was speaking, I was thinking, also largely chronologically. I was thinking about the Chinese Head Tax, the prohibition of the Potlatch, the Sundance and the Powwow, the internment of Japanese Canadians, the internment of Ukrainian Canadians, the internment of German Canadians, the dislocations and perpetual internment of Aboriginal peoples, the disenfranchisement of women, the disenfranchisement of "Indians" as defined in the Indian Act, and about the Indian Residential Schools policy. Chief Justice McLaughlin‘s speech was about our memory or history "of convenience". I was thinking about our history.

This is our truth. This should be our real memory. And in order to move beyond it, in order to partner with First Nations, Inuit and Métis communities to work towards rebuilding the capacities that were purposely destroyed, and to move towards restoring and relating, we have to acknowledge that truth. We will also have to learn to acknowledge other truths, truths about the resilience and true capacities of Indigenous societies, long anchored in inestimable knowledge in science, astrology, agriculture, spirituality, physics, philosophy, the arts and yes, child rearing.

We will have to acknowledge and accept that there is much about which we simply don‘t know.

In April of 2009, I attended the Gathering of Nations Powwow in Albuquerque, N. M., noted to be the largest gathering of its kind in North America. There were 3, 000 dancers involved in the Powwow, and 15 drum groups with eight or more members each. There were dance judges, drum judges and singing judges. There were hosts and MC‘s and administrators. The participants were not homogeneous; rather they were from virtually every Indigenous nation in North America. Yet - and I was also struck by this - every person at that event, but for me, understood exactly what was going on at all times, exactly what was the proper protocol, exactly who to pay attention to, and exactly what level of deference to accord to whom - everyone, exactly. This is not something that happens overnight. This is something that happens over centuries, and it is but one example of something about which we know nothing.

Other examples of things about which we may know little relate to how First Nations, Inuit and Métis peoples raise their children, what values they may respectively place on inquisitiveness, non-interference, discovery and freedom, as well as what limits they may place on authoritarianism, regulation and supervision. They may also relate to what constitutes neglect, what constitutes family and what constitutes permanence. We in non-Aboriginal child welfare agencies have no experience in these matters in the context of the history that has been lived by First Nations, Inuit and Métis peoples in Canada, and we have no method by which to accurately measure our non-experiential judgment. But judge we do.

We, in the "dominant" society, have made such concerted efforts to incapacitate Aboriginal peoples, and we have then judged those very same peoples for their lack of capacity to succeed. We have instead to acknowledge that anybody who was subjected to the relentless onslaught to which Aboriginal peoples were subjected would equally fail, and we have to concentrate our current and future efforts on two things: one, supporting the restoration of the capacity which was destroyed, and two, ensuring that the children are returned from whence they came.

To do either we will need to transition from judgment to trust. We will have to not only be willing to learn, but also be prepared to believe. We will have to actually, finally apply the principles contained in the Child and Family Services Act, R.S.O. 1990. C.c.11. Subsection 2(2), paragraph 5 of the Child and Family Services Act, provides that one of the purposes of the Act additional to the paramount purpose, and so long as it is consistent with the paramount purpose, is: "to recognize that Indian and native people should be entitled to provide, wherever possible, their own child and family services and that all services to Indian and native children and families should be provided in a manner that recognizes their culture, heritage and traditions and the concept of the extended family". In order to provide services in a manner that recognizes their culture, heritage and traditions, and their concept of extended family, non-Aboriginal child welfare service providers have to learn about and understand those things. In order to learn about and understand those things, we will need to listen to those in the know.

To this end, in the early winter of 2007, the Children‘s Aid Society of Ottawa engaged in a full day consultation with the First Nations, Inuit and Métis service providers in Ottawa to receive feedback about how they experienced the involvement of the CAS in the lives of our shared clientele. What those service providers told us was that our staff required training on communication differences and sensitivity, that the availability of Aboriginal staff, kin and caregivers were key issues, that many cases required interagency consultation and case planning, that recognition of the adjunct Aboriginal services was crucial to effective interaction with the client, that our materials needed to be available in an accessible and culturally relevant manner, and that we needed to demonstrate a commitment to improving service through sustainable change and better outcomes for First Nations, Inuit and Métis children and families.

We followed this consultation with another full day wherein we heard from those who were on the receiving end of our services, Inuit, Métis and First Nations clients. What those clients told us was that we were punitive, judgmental, insensitive, and had little knowledge or understanding of history or culture. We were told that the clients' experience of our involvement with them was one of pain and powerlessness, filled with ongoing cultural loss, and that our (then) current protection practices had devastating impacts on children, parents, extended families and communities. Having attended both consultations, I would suggest that the overwhelming sentiment exhibited at the first was anger, and the equally overwhelming sentiment exhibited at the second was absolutely palpable pain.

These consultations were followed by the establishment of two committees – an internal Forum, comprised of CAS Ottawa employees whose responsibility These consultations were followed by the establishment of two committees – an internal Forum, comprised of CAS Ottawa employees whose responsibility it was to learn as much as possible about history, practices and culture, and to share what they learned with their fellow employees, and a Liaison Group, which was comprised of representatives of all of the Inuit, Métis and First Nations service provider organizations in Ottawa and representatives of the Ottawa CAS. The Liaison Group also struck a working group to work on the development of an ADR program derived from traditional practices. Together, through the Liaison Group, we have created a Resource Tool-kit with a Lifecycle Service Chart to inform staff of community resources and programs, collaborated on building family care resources for children and youth, including to the extent of our foster care/adoption recruitment officer being welcome with his booth at local Aboriginal functions, and created the "Circle of Care" ADR program.

Indeed, we are about to hire a Circle of Care Implementation Consultant, and CAS and First Nations, Inuit and Métis Liaison Group members will jointly conduct the interviews for the position. Additionally, we at the CAS of Ottawa have purchased cultural specific resources for staff and care providers, placed Aboriginal art and cultural artifacts throughout the building to render it more welcoming, translated our welcome sign and brochures into various Indigenous languages, and identified specific informed teams to which we will assign First Nations, Inuit or Métis cases. Attached is a chart of the CASO Inuit, Métis and First Nations Forum and Liaison Group‘s "Overview of Achievements to Date".

In March of 2009, we held another full day consultation with the very same service providers we met with in January of 2007 and, while much is yet to be done and our efforts continue to very much be a "work in progress", it was clear from this most recent consultation that relations between us have vastly improved, as have opportunities for better outcomes for children and families. Indeed, in the Liaison Group we committed from very early on to endeavour to tell at least one "good news story" at every meeting and, as we have gained trust and confidence in one another, such stories have been progressively easier to come by.

All of this is in the context of an agency, the CAS of Ottawa, which neither has a reserve(s) within its territorial jurisdiction, nor is attempting to devolve services and/or resources to either an Aboriginal child protection agency designated under Section 15 (2) of the Child and Family Services Act or to an "Indian or native child and family services authority" as referred to in Section 211. This is another kettle of fish entirely, as those of you from Sudbury or Algoma or Belleville or Brantford or Timmins or Cornwall already know. Or is it?

Notwithstanding the statistics referred to at the beginning of this paper, and their implications, there are only six Section 15 (2) designated First Nations child welfare agencies in the Province of Ontario. The ultimate goal, as identified previously, is to have First Nations child welfare agencies providing child welfare services to First Nations children. Not only is this contemplated in the Child and Family Services Act, it is an emerging expectation from First Nation communities as they seek greater self-governance and oversight with respect to financial and social service planning. There are at least four Section 211 First Nation agencies currently seeking designation and several others who have identified an intention to do so. One of our greatest obligations over the next several years, if not decades, will be to ensure an appropriate transition of the mandate we currently carry, historically much to the recipient‘s detriment, to the evolving First Nations child and family services authorities. That leaves, however, a great many non-Aboriginal agencies currently and for the foreseeable future providing services to Aboriginal children and families.

From a practical perspective, this means that lawyers acting for child protection agencies have an even more heightened responsibility to ensure that our clients are cognizant of and adhering to all of their obligations contained in the Child and Family Services Act as they pertain to "Indian and native children", which include but are not limited to: notice to and band participation in Part III proceedings, Section 141.2 notice regarding a Society's intention to plan for adoption, band participation in Section 144 CFSRB reviews, band consultation pursuant to Sections 213 and 213.1, and the use of Part X Customary Care placements. But we are now beyond all of that. The issue today is about more than that we fulfill our statutory obligations; it is also about how we fulfill them.

How do we in non-Aboriginal child welfare agencies overall ensure that we provide services "in a manner that recognizes the culture, heritage and traditions and the concept of the extended family" of Indian and native children and families, and that we engage in an appropriate transition, wherever possible, of the mandate we currently carry to the evolving First Nations child and family services? We start by truth telling - we tell the truth about our own history, and we learn the truth about the history of others. We continue by acknowledging - we acknowledge the harm we have occasioned upon children, families, extended families and communities, and we acknowledge that there are many things about which we may know very little. We proceed to restoring – we participate in the restoration of what has been lost by learning about each other and understanding our differing perspectives on such things as neglect, family and permanency, and by planning future steps together. And, finally, we relate - we build mutual trust and we learn to believe that we are all equally capable of fulfilling the mandate that we share, not only as child welfare practitioners, but as human beings, to promote the best interests, protection and well-being of children.

CASO/Inuit, Metis and First Nation Liaison Group

References

"Strategies to Address Child Welfare", Native Women‘s Association of Canada, Issue Paper prepared for the National Aboriginal Women‘s Summit, June 20-22, 2007.
Ditto

"Reconciliation in Child Welfare: Touchstones of Hope for Indigenous Children, Youth and Families", Cindy Blackstock, Terry Cross, John George, Ivan Brown and Jocelyn Formsma, 2006.

"From Truth to Reconciliation – Transforming the Legacy of Residential Schools", Aboriginal Healing Foundation, p. 50
In his "Statement of Apology to the Former Students of Indian Residential Schools", delivered on June 11, 2008, the Prime Minister of Canada, Stephen Harper, cited the infamous phrase: "to kill the Indian in the child" to describe the objective of the policy of the Governments of the day.

This may be hugely significant as research has shown that Aboriginal children are less likely to be reported to a child welfare authority for abuse and more likely to be reported for neglect. Factors which tend to explain over-representation of First Nations children in child welfare are poverty, poor housing and caregiver substance misuse.

We were assisted in organizing both consultations, and in many other ways, by a consultant, Deborah Chansonneuve, who had been chosen by the Aboriginal service providers and engaged by the CAS of Ottawa.

Interestingly, the Law Commission of Ontario, in its' January 2009 Consultation Paper entitled "Family Law Project Options" noted at page 10 that: "Roundtable participants pointed out that both Aboriginal women and men were disproportionately involved in the family and criminal justice systems. Participants pointed out that not enough has been done in terms of developing dispute resolution mechanisms that are acceptable amongst Aboriginal communities. Some discussed the possibility of developing a specific and distinct dispute resolution system for these communities".

For the information and discussion following in this paragraph, and for some of the thinking elsewhere in the paper, I wish to acknowledge the input, insight and work of Jennifer Wilson, Director of Service for the Children‘s Aid Society for the Districts of Sudbury and Manitoulin, and Adit Sommer-Waisglass, Legal Services Supervisor for Native Child and Family Services of Toronto, my fellow workgroup members on the OACAS Legislative and Policy Committee‘s 2010 review of "Services to Indian and native persons".

I do not venture to comment upon the propriety of "designation" of an Aboriginal agency by a non-Aboriginal entity ("the Minister"), nor do I presume it to be the most appropriate route. Ultimately, First Nations communities will have to decide that for themselves.

In Ottawa, the CASO also provides services to the largest Inuit population outside of the North, and will presumably continue to do so, as Inuit do not fall within the definitions of either "Indian" or "native person" in the CFSA.
"Formal" Customary Care placements are currently done via a Band Council Resolution (BCR), and must be consistent with the Ontario Permanency Funding Guidelines. Section 1, subsection (1) of the Child and Family Services Act: "The paramount purpose of this Act is to promote the best interests, protection and well being of children."

About the Author

Tracy Engelking was called to the Bar in 1992, joined the Children's Aid Society of Ottawa as in-house counsel in 1998. Tracy has been its' Senior Counsel since 2000, and is currently a co-chair of the CASO/ Inuit, Métis and First Nations Liaison Group.

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